Judgment S.K.JHA, J. 1. This is a plaintiffs appeal against a judgment of reversal in a suit for redemption filed by them. Their suit for redemption was in respect of a zarpeshgi deed dated 27-1-1941 alleged to (Contd. on. Col. 2) have been executed by one Most. Mana Kuer, widow of Deolal Kuer, and one Most. Punkalo Kuer, widow of Chander Kuer, in favour of one Sheoshankar Sah. That zarpeshgi deed was in respect of an area of 5 kathas 8 dhurs of land comprising plot No. 525 (area 1 katha 2 dhurs) and plot No. 526 (area 4 khatas 6 dhurs) of khata No. 24 of village Basantpur, for a consideration of Rs. 60.00 only. Further prayer was for a decree for mesne profits from the date of tender. The trial court had decreed the suit for redemption whereas the lower appellate court has dismissed the suit on a finding that the equity of redemption was no longer subsisting. Against this judgment and decree the plaintiffs have come up in second appeal. 2. In order to appreciate the facts involved for determination of the issue in question in this case, it would be worthwhile to give a genealogy as under- It would been from the aforesaid genealogy that Deolal was a first cousin of Chandar. Deolal died leaving behind a widow Most. Mana Kuer alias Munia, and a sister Most. Dhanesara. Mana Kuer is said to have died sometime in 1951. On the other hand Chandar died leaving behind a widow Most. Punkalo alias Most. Ramkalo and two sons Hira and Harihar. Hira is said to have died sometime in the year 1947 leaving behind a widow Most. Chandrapato. The original plaintiffs in the suit were Bhagwat Kuer, plaintiff No. 1 the own brother of Chandar, and Ambika Kuer, plaintiff No. 2, being the son of plaintiff No. 1. This genealogy is not in dispute. According to the plaintiffs case, the zarpeshgi deed in question was executed on the 27th of January, 1941, by Most. Mana alias Munia and Most. Punkalo alias Ramkalo. In 1942 the aforesaid mortgage was assigned to the sole defendant respondent. The plaintiffs claim to be the purchasers of the equity of redemption in the following manner. On 6-12-1952 a registered sale deed (Ext. 1) was executed by Most. Mana alias Munia and Most. Punkalo alias Ramkalo. In 1942 the aforesaid mortgage was assigned to the sole defendant respondent. The plaintiffs claim to be the purchasers of the equity of redemption in the following manner. On 6-12-1952 a registered sale deed (Ext. 1) was executed by Most. Dhanesara regarding 2 kathas 13 dhurs of plot No. 526 only appertaining to the half share of Deolal. This sale deed is said to have been executed in favour of plaintiff No. 2. By another registered sale deed dated 3-4-1961 (Ext. 1/a) plaintiff No. 1 Bhagwat claims to have purchased the remaining half share of Chandars branch from Harihar and Most. Chandrapato, widow of Hira. This sale deed is in respect of 3 kathas 9 dhurs out of plot Nos. 525 and 526. It is further claimed that on 23-3-1961 a tender was duly made by the plaintiffs to the defendant, which was refused, and thereafter a deposit under Section 83 of the Transfer of Property Act, 1882 (hereinafter to be referred to as the Act) was made and notice served on the defendant respondent which he refused to accept. Hence, the suit for redemption along with the claim for a decree for mesne profits. 3. According to the defendant respondents case, it was not correct to say that the zarpeshgi deed dated 27-1-1941 as was executed by Most. Mana and Most. Punkalo; actually it is said to have been executed by Most. Mana and Chandar. The other particulars regarding the area and the description of the land were accepted as correct. Although, it was admitted by private arrangement Deolal and Chandar had joint interest in the land in question, it was disputed that they were in possession of the equal share. According to the defence case, Chandars interest was to the extent of 2 kathas 14 dhurs only. This area of 2 kathas 14 dhurs comprised the whole of Plot No. 525 (area 1 katha 2 dhurs) and only 1 Katha 12 dhurs out of Plot No. 526. The remaining area out of the total area in dispute fell in the share of Deolal. In 1952 the mortgage was assigned to the defendant who, in his turn, is said to have acquired the equity of redemption in the following manner. On 4-6-1947 the defendant mortgagee took a sale deed (Ext. The remaining area out of the total area in dispute fell in the share of Deolal. In 1952 the mortgage was assigned to the defendant who, in his turn, is said to have acquired the equity of redemption in the following manner. On 4-6-1947 the defendant mortgagee took a sale deed (Ext. A) from Harihar, which also purported to be a confirmation of a previous oral sale by Hira in favour of the defendant. This registered sale deed was executed for a consideration of Rs. 85/- out of which Rs. 30.00 being the half share of the mortgage money was adjusted against the half share of consideration of the mortgage, Rs. 10.00 was given for the shradh of Hira and Rs. 45/- was adjusted against a loan on a stamped paper dated 14-5-1942 advanced by one Sheojit, uncle of the defendant. Sometime in the year 1949 the interest of Deolal is said to have been purchased orally by the defendant from the window of Deolal. Most. Mana Kuer who was, as already stated, one of the mortgagors, for Rs. 75/- out of which Rs. 30.00 was said to have been adjusted against the half share in the mortgage due and Rs. 45/- was paid in cash to Most. Mana Kuer. Thereafter the defendant claims to have been put in possession qua a kashtkar and he no longer continued in possession as mortgagee. On 1-8-1950 a stamped receipt (marked as Ext. C by the lower appellate court) was said to have been executed by Most. Mana Kuer to prevent any future litigation reciting the acknowledgment regarding the transaction of oral sale which had taken place in 1949. 4. The trial court accepted the plaintiffs case and held that they had purchased the equity of redemption. The lower appellate court, on the contrary, while dismissing the suit, found as follows:- (i) That the plaintiffs assertion that the zarpeshgi deed was executed by Most. Mana and Most. Punkalo was not correct; as a matter of fact, it was executed by Most. Mana and Chandar, as was the defence case. (ii) Furthermore, that the documents of 1952 and 1961 (Exts. 1 and 1/a respectively) through which the plaintiffs claim to have acquired the equity of redemption did not confer any title on the plaintiffs (appellants). On the contrary, the entire equity of redemption had been purchased by the defendant (respondent) through Ext. Mana and Chandar, as was the defence case. (ii) Furthermore, that the documents of 1952 and 1961 (Exts. 1 and 1/a respectively) through which the plaintiffs claim to have acquired the equity of redemption did not confer any title on the plaintiffs (appellants). On the contrary, the entire equity of redemption had been purchased by the defendant (respondent) through Ext. A, dated 4-6-1947 which was a sale deed from Harihar and the oral sale of 1949 by which Deolals share was acquired by the defendant from his widow Most. Mana. As such, it was found that the entire equity of redemption had been duly and legally acquired by the defendant in 1949 and since after that date the defendant had been coming in possession, paving rent and obtaining rent receipts, having got himself mutated as kashtkar in respect of the entire land in question. 5. Mr. K.D. Chatterji, learned Counsel appearing for the appellants, urged firstly that on the findings of the lower appellate court the plaintiffs appellants were entitled to redeem the mortgage. It was submitted that the plaintiffs had acquired, by Ext. 1 dated 6-12-1952, an area of 2 kathas 13 dhurs out of plot No. 526 from Most. Dhanesara and by virtue of Ext. 1/a dated 3-4-1961 an area of 3 kathas 9 dhurs of plots Nos. 523 and 526 from Harihar and Chandrapato whereas the defendant claims to have got an area of only 2 kathas 4 dhurs under Ext. A dated 4-6-1947. Evidently, therefore, Ext. A not being in respect of half interest of Chandars branch, the portion which was not covered by Ext. A must be deemed to have still remained with Harihar and Hira which had been acquired by the plaintiffs under Ext. 1/a from Harihar and Chandrapato. On such a premise, it was argued, under Section 91 of the Act all persons having any interest in the property subject to mortgage were entitled to the right of redemption; as, any interest, howsoever small, in the property gives a right of redemption. Even if, therefore, it be held that a fraction of mortgagors right in respect of Chandars interest in the property came to be acquired by the plaintiffs by Ext. 1/a, the plaintiffs were perfectly entitled in law to sue for redemption. This argument is based upon a misconception of facts. It was pointed out by Mr. Even if, therefore, it be held that a fraction of mortgagors right in respect of Chandars interest in the property came to be acquired by the plaintiffs by Ext. 1/a, the plaintiffs were perfectly entitled in law to sue for redemption. This argument is based upon a misconception of facts. It was pointed out by Mr. J.C. Sinha, learned Counsel for the respondent, that the area covered under Ext. A dated 4-6-1947 was not only 2 kathas 4 dhurs, as was suggested by Mr. Chatterji, but 2 kathas 14 dhurs, the break-up of which was 1 katha 2 dhurs of plot No. 525 and 1 katha 12 dhurs out of plot No. 526. This area of 2 kathas 14 dhurs was just the half of the total area in dispute, namely, 5 kathas 8 dhurs. It is, therefore, wrong to suggest, as was suggested by Mr. Chatterji, that a fraction of the right in the equity of redemption in respect of the interest of Chandar was still left over in spite of execution of Ext. A dated 4-6-1947 by Harihar. Indeed, Mr. Chatterji could not then contradict the fact that actually the area transferred under Ext. A was 2 kathas 14 dhurs. The first submission of Mr. Chatterji, therefore, fails on this ground alone. Apart from this, I may also point out here the inherent absurdity in the plaintiff appellants case. The plaintiffs claim to have acquired under each of Exts. 1 and 1/a half share in the lands in dispute. The total area in dispute, as already stated, is 5 Kathas 8 dhurs. It does not, therefore, stand to reason as to how and on what basis under Ext. 1 plaintiff No. 2 got 2 Kathas 13 dhurs of plot No. 526 and under Ext. 1/a plaintiff No. 1 got 3 kathas 9 dhurs comprising the entire plot No. 525 and the remaining area of plot No. 526. The total area under these two exhibits comes to 6 kathas 2 dhurs. This is nobodys case. 6. It was next urged that the equity of redemption even regarding the interest of Deolal could not have been extinguished as was held by the lower appellate court, because the alleged oral sale by Most. Mana cannot be proved in view of Section 91 of the Evidence Act. This is nobodys case. 6. It was next urged that the equity of redemption even regarding the interest of Deolal could not have been extinguished as was held by the lower appellate court, because the alleged oral sale by Most. Mana cannot be proved in view of Section 91 of the Evidence Act. Learned Counsel submitted by referring to certain portions of the lower appellate court judgment that some of the witnesses examined on behalf of the defendant had stated, while supporting the case of this oral sale of 1949, that a deed was also scribed on the occasion. Mr. Chatterji submitted that, since the witnesses had admitted that a formal deed witnessing the sale had been scribed and executed on the occasion of the alleged oral sale, the sale could be proved only by the production of the document of sale duly registered and the entire evidence on the question of oral sale must be held to be inadmissible in view of Section 91 of the Evidence Act. This argument is not at all well founded. It is well settled that Section 91 bars the proof of the terms of a document otherwise than by the production of the document itself. It does not, however, exclude other proof of the transaction itself. The terms of a contract grant or any other disposition of property reduced to the form of a document are something distinct from the proof of the transaction itself. If, for example, a document of sale is on the record evidencing certain terms of the contract of such sale. Section 91 precludes any other evidence, apart from the terms of the document itself, from being taken in, in order to prove such terms. Section 91, however, does not preclude in the case even of an unregistered deed of sale, which has not been brought on the record of a case, a proof of the fact that a transaction by way of oral sale had taken place. Merely because the defence witnesses had said in their evidence that at the time of the oral sale a sada document was also executed, which has never seen the light of the day, it cannot attract the bar of Section 91 of the Evidence Act to prove the nature of the transaction, namely, that an oral sale was made in favour of the defendant by Mana Kuer. This is on the assumption that whatever the defence witnesses have said must be taken on its face value in entirety as gospel truth. None of the courts below has actually recorded a finding on the basis of such evidence that there ever was a written document in proof of the oral sale of 1949 executed simultaneously with it. It may just be that the defendants witnesses may, in their zeal to support the defence case, have made certain embellishments and exaggerations by trying to further strengthen the case of the defendant. In the absence of any finding on the basis of such evidence, this argument is not available to learned Counsel for the appellants. Apart from that, the recitals in Ext. C clearly support the case of the defendant that an oral sale had been made by Most. Mana Kuer which fact was acknowledged in the deed purported to be a receipt (Ext. C). At the initial stage Mr. Chatterji contended that the lower appellate court had committed an error of law in taking an unstamped paper (Ext. C) in evidence even for a collateral purpose. This argument, however, was based upon a bone fide misapprehension of the true state of facts, which was bound to arise on account of an inadvertent statement of fact in the judgment of the lower appellate court. In paragraph 33 of the lower appellate court judgment, Ext. C has been described by the learned Subordinate Judge as being an unstamped sale deed dated 1-8-1950. This was, however, clearly an accidental slip, it can be gathered from the original deed on record itself, which was shown to Mr. Chatterji, that what was intended to be said by the lower appellate court was that, although stamped, it was an unregistered document. Even the trial court has stated at the end of paragraph 3- "That to prevent future trouble regarding oral sale Mana Kuer also executed a deed in the form of receipt dated 1-8-1950 on stamp paper." Having been confronted with this position, learned Counsel for the appellants withdrew the submission in this respect. 7 It is next contended by Mr. Chatterji that there is a stipulation Ext. A, which is the sale deed execute by Harihar in favour of the defendant, that previous to that sale deed an oral sale had also been made by Hira in respect of his share. 7 It is next contended by Mr. Chatterji that there is a stipulation Ext. A, which is the sale deed execute by Harihar in favour of the defendant, that previous to that sale deed an oral sale had also been made by Hira in respect of his share. It was suggested that, since no case of oral sale had been pleaded in the written statement and none of the courts of fact had accepted that case it ought to have been held that the entire interest of Chandar had not passed on to the respondent. It is quite true that the case of oral sale by Hira has not been pleaded. It is also well settled that no amount of evidence can be gone into in support of a fact not pleaded and it is also true that none of the two courts below has accepted any story of oral sale by Hira in favour of the respondent. Nonetheless the final court of fact has non-suited the plaintiffs not on the ground that any interest in the equity of redemption had passed on to the respondent by virtue of any oral sale said to have been made by Hira but on the strength of the transfer made by Harihar himself. It has been found as a fact by the lower appellate court that Harihar in executing the sale deed had acted for, and on behalf of, the joint family of Harihar and Hira. In paragraph 28 of the judgment of the lower appellate court, the evidence of the plaintiffs witnesses who had tried to prove that there was a separation in status between Hira and Harihar has not been accepted. On the contrary, from the discussion of evidence and the findings on the basis of such evidence, the conclusion arrived at seems to be that Harihar in executing Ext. A had acted on behalf of the joint family of himself and Hira. I may mention here that it is unfortunate that the finding in this respect does not seem to be very clearly and systematically recorded as the entire evidence on all the points has been sought to be discussed by the lower appellate court as if all the issues were in a common hotchpot. I may mention here that it is unfortunate that the finding in this respect does not seem to be very clearly and systematically recorded as the entire evidence on all the points has been sought to be discussed by the lower appellate court as if all the issues were in a common hotchpot. Be that as it may, it is quite clear that no relief has been granted to the respondent nor have the plaintiffs been non-suited on any alleged supposition of transference of Hiras interest to the respondent or any oral sale. That, therefore, disposes of this part of the submission of Mr. Chatterji. No other point was raised on behalf of the appellants. 8. Mr. J.C. Sinha, learned Counsel for the respondent urged that, even assuming that something could be said in favour of the appellants, the story of a valid tender having not been accepted as correct and it having been held by the lower appellate court on an appraisal of evidence that the service of notice of tender under Section 83 of the Act had not been proved, the appellants must be non-suited on that ground also. I am afraid this argument is not at all tenable. The law is well settled that deposit under Section 83 of the Act is not valid until notice has been duly served on the mortgagee, for it is the service of notice that operates as a valid tender, although so long as the notice is not served, the mortgagees right of suit under Sec. 67 of the Act is not wiped out if he is not otherwise aware of the deposit. In a suit for redemption it is not necessary to prove even a previous tender. Either a tender or a deposit under Section 83 of the Act is not a condition precedent to a suit for redemption of the mortgaged property and the court cannot dismiss the suit on the ground that a previous deposit had not even been proved. If at all this question can have any bearing in appropriate cases, it will have a bearing on the question of mesne profits only. There is, therefore, no substance in the contention of Mr. Sinha that on account of non-service of the notice of deposit under Section 83 of the Act the suit ought to have been dismissed. If at all this question can have any bearing in appropriate cases, it will have a bearing on the question of mesne profits only. There is, therefore, no substance in the contention of Mr. Sinha that on account of non-service of the notice of deposit under Section 83 of the Act the suit ought to have been dismissed. That, however, is a question merely of academic importance in this case in view of what I have already held above. 9. For the foregoing reasons, I am constrained to hold that there is no merit in this appeal and it accordingly fails. The appeal is dismissed with costs. S.N.P.SINGH, J. 10 I agree.