Bapna, J.—This is a second appeal in a suit for redemption. The plaintiff sued the respondent for redemption, of a field on the allegation that it had been mortgaged for a sum of Rs. 50/-about 14 years ago but the defendant was not prepared to redeem the possession after taking the amount of mortgage money. The suit was instituted on the 7th of July, 1945. The defendant denied the mortgage and alleged that the field had been actually sold by a deed dated the Asad Vadi 1 Sam-wat 1992 in lieu of Rs. 50/-. The trial court dismissed the suit and the same judgment was upheld on appeal. 2. It was argued that the deed relied upon by the defendant being unregistered was inadmissible in evidence and since the defendant virtually admitted the plaintiffs prior title and the suit was not barred by limitation, the plaintiff should succeed even if the mortgage was not proved. It was also argued that the transaction of mortgage was by oral contract and the evidence led in support thereof should have been accepted by the two courts. The learned counsel for the respondent has argued that whatever may have been the law in Mewar prior to 1948, the provisions of the Indian Transfer of Property Act and the Indian Registration Act were made applicable after 1948 i.e., during the pendency of this litigation and that the sale-deed was admissible for the collateral purpose of showing how the possession of the defendant started and also for the purpose of taking advantage of the doctrine of part-performance laid down in s. 53 A of the Transfer of Property Act. The Regis-tration Act of Mewar (Act No. 3 of S. 1988) was introduced on 1st of July, 1932 and by sec. 5 thereof, deeds of mortgage were required to be registered irrespective of the amount secured by the mortgage. It was contended for the appellant that this provision was applicable only if the transaction was evidenced by a deed but that in the present case the mortgage was oral and, therefore, oral evidence should have been accepted. I find, however, on going through the evidence that every one of the witnes-ses of the plaintiff states that the transaction of mortgage was affected by a deed. The plaintiff who is P. W. 4 states that the deed of mortgage was executed 9 or 10 years ago.
I find, however, on going through the evidence that every one of the witnes-ses of the plaintiff states that the transaction of mortgage was affected by a deed. The plaintiff who is P. W. 4 states that the deed of mortgage was executed 9 or 10 years ago. P.W. 1 Dewa states having seen the deed of mortgage and having been asked by the defendants father to attest it but that he did not do so. P.W. 2 Bhamra also said that the transaction was reduced to writing. P.W. 3 Bhagga said that he had seen with Jalu— defendants father—the deed after it had been executed. Learned counsel for the appellant argued that in the plaint no reference had been made to the deed but in view of the admission of the plaintiff and all his witnesses, there remains no doubt that according to the plaintiff the transaction of mortgage was entered into by the execution of a deed of mortgage. The statement of the plaintiff was recorded on the 2nd of November, 1946, and in that statement he had stated that the deed was executed 9 or 10 years ago, that is, some time in 1936 or 1937. That this deed was not registered is evident from the fact that none of the witnesses has alleged its registration and in fact learned counsel for the appellant tried to argue that the document was not brought into existence at all. Under the law in Mewar which has been referred to above, registration of a deed of mortgage was compulsory. The point which now remains to be considered is whether secondary evidence of a document which is required to be registered under the law but has not been so registered is admissible. The law is well settled that if the original document is inadmissible in evidence owing to its being unstamped or unregistered, secondary evidence is inadmissible vide. 1927 Nag. 214. Section 65 of the Evidence Act presupposes that, but for one or more of the barriers to its production stated in the section, the document would have been capable of proving its contents under section 64 read with section 62. It would therefore, be a manifest absurdity to hold that secondary evidence may be given to establish a fact, proof whereof by primary evidence is forbidden.
It would therefore, be a manifest absurdity to hold that secondary evidence may be given to establish a fact, proof whereof by primary evidence is forbidden. Under no circumstances can secondary evidence be admitted as a substitute for inadmissible primary evidence. Where a party comes into court resting his claim on a written title which the law requires to be registered, he cannot, when he has failed to register, and is, in consequence, unable to use his title-deed, turn round and say that he could prove his title by secondary evidence. The various cases in support of the above proposition are cited in Monirs Law of Evidence 1948 Edition at page 528. The plaintiffs oral evidence of the terms of the deed of mortgage was, therefore inadmissible in evidence. The two courts have rightly held that the plaintiff has failed to prove the mortgage relied upon by him and that he is not entitled to succeed. 3. The next plea taken by the defendant as to his being the owner of the property under the sale deed cannot be accepted as the deed is not registered. The plea of the doctrine of part performance will only come in for examination if the plaintiff files the suit on the basis of his title. The learned counsel intimated that the plaintiff had filed the suit for possession on the basis of title and is pending in the lower court. The contention raised by the learned counsel for the respondent about the admissibility of the document by virtue of the enforcement of the Transfer of Property Act and the Indian Registration Act need not also be examined in this appeal. As a result, this appeal has no force and is dismissed with costs.