Judgement JUDGMENT :- This is defendants' second appeal against the concurrent judgment and decree passed by the IInd Additional District Judge, Neemuch in regular Civil Appeal No. 34-A/2001. 2. This appeal was admitted for final hearing on 8-7-2003 on the following substantial questions of law :- - "(1) Whether lower appellate Court was justified in confirming the judgment/decree passed by the trial Court which decreed plaintiffs suit for possession? (2) Whether lower appellate Court was justified in holding that suit for possession based on title as also on the strength of mortgage is maintainable in law and if so, whether there was adequate material brought by the plaintiffs to sustain their title and alleged mortgage? (3) Whether documents relied on by the plaintiffs to support the plea of ownership and that of mortgage is legally made out and whether such finding though of a concurrence is binding on second appeal?" 3. In order to appreciate the controversy involved in the appeal, it is necessary to state relevant facts briefly. Plaintiffs are the widow and son of Jeetmal, whereas the original defendant Kamlabai was sister of Jeetmal as both of them were offspring of Laxman and Kashibai. Laxman's mother was Jadavbai. It is not in dispute that Jeetmal went in adoption to Rakhabdas who happened to be his maternal grandfather. Plaintiffs came out with the case that Jadavbai by a registered gift deed dated 21-9-1949 had gifted the suit house to Jeetmal. The suit house is more particularly described in paragraph 2 of the plaint, situated in Village Jawad. Jeetmal was in need of money, therefore, he had mortgaged the suit house in lieu of Rs. 4,000/- in favour of Mohanlal. Said Mohanlal had inducted Kamlabai as a tenant on payment of monthly rent of Rs. 30/- in the suit house. It is further alleged in the plaint that Kamlabai was in arrears of rent, therefore, Mohanlal filed an eviction suit and obtained a decree against Kamlabai. When the decree was put into execution, Kamlabai approached Jeetmal to borrow money to ward off the decree suffered by her. Jeetmal instead of lending money, advised her to pay off the decretal sum to Mohanlal and she should step into the shoes of Mohanlal as mortgagee. Accordingly, Kamlabai paid off Mohanlal and she stepped into the shoes of Mohanlal as mortgagee. Jeetmal instead of lending money, advised her to pay off the decretal sum to Mohanlal and she should step into the shoes of Mohanlal as mortgagee. Accordingly, Kamlabai paid off Mohanlal and she stepped into the shoes of Mohanlal as mortgagee. Plaintiffs, therefore, filed suit for redemption of mortgage against Kamlabai, out of which, this appeal arises. 4. Kamlabai in her written statement denied all material facts pleaded by the plaintiffs. She denied the authority of Jadavbai to gift the property in favour of Jeetmal. She denied the story of mortgage in favour of Mohanlal by Jeetmal. She further stated that the eviction decree was obtained by Mohanlal in connivance with Jeetmal, but in order to buy peace, she had paid the money to Mohanlal. She further denied the fact that she was residing in the suit house as tenant of Mohanlal. She further stated that the moment Jeetmal went in adoption to Rakhabdas, he was not entitled to succeed to the property of her natural parents. She further claimed that one of her sister died in the year 1949 and the other had relinquished her right in the suit property in favour of Kamlabai. She also taken the plea of adverse possession as well as the Will executed by her father, Laxman in her favour. With these pleadings, parties went to the trial and adduced their evidence both oral as well as documentary. 5. Learned trial Judge on the basis of evidence, decreed the suit and disbelieved the defence of adverse possession as well as the Will set up by the defendants in the written statement. The matter was carried in appeal and the learned lower appellate Court affirmed the judgment and decree. Lower appellate Court repelled the contention that the endorsement on Exhibit D-2 for want of registration would not come in the way of the plaintiffs to obtain a decree for redemption. Hence, this appeal. 6. After hearing learned counsel for the parties at length and going through the material available on record, this Court is of the view that the substantial questions of law No. 2 and 3 formulated at the time of admission require slight modification in order to bring out the controversy on the forefront. Hence, this appeal. 6. After hearing learned counsel for the parties at length and going through the material available on record, this Court is of the view that the substantial questions of law No. 2 and 3 formulated at the time of admission require slight modification in order to bring out the controversy on the forefront. This is permissible in view of the provisions contained in sub-section (5) of Section 100 of the C. P. C., therefore, the substantial questions of law on which this appeal was admitted were modified with consent of learned counsel for the parties to read as :- - "(1) Whether lower appellate Court was justified in confirming the judgment /decree passed by the trial Court which decreed plaintiffs' suit for possession ? (2) Whether Jadavbai could have gifted the suit house to Jeetmal? (3) Whether the endorsement on the original mortgage deed could be looked into for want of registration?" 7. It is not in dispute that the parties are governed by Banaras School of Hindu Law. Indisputably, the gift deed (Exhibit P-1) was registered on 21-9-1949, therefore, one has to see what was the position of Hindu law which was prevailing in the year 1949 prior to coming into force of Hindu Succession Act, 1956. 8. Article 168 of the Mulla's Hindu Law, 17th Edition deals with the succession to the property inherited by females. As per this article, under the Banaras School of Hindu Law, every female whether she be a widow, daughter, mother, father's mother or father's father's mother, who succeed as a heir to the property of a male took only a limited estate in the property inherited by her without becoming a fresh stock of decent and on her death, the property passed on to the next heir of the male from she inherited and not to her heir. Under the limited estate in the property which was as known as widowed estate, a widow was entitled only to the income of the property. Under the limited estate in the property which was as known as widowed estate, a widow was entitled only to the income of the property. Prior to 1956, under the limited estate, there were restrictions on the widow's power of alienation and she only took qualified estate in the property inherited by her, but she had no right to sell corpus of the property or mortgage it, make a gift of it or grant lease thereof for a long period, alienate unless for legal necessity or for the benefit of estate or with the consent of the next reversion's. However, this position has undergone a radical change in view of section 14 of the Hindu Succession Act, 1956 whereby a limited estate of widow is no longer recognised as valid and Section confers full heritable capacity on a female heir in respect of all property acquired by her whether before or after the commencement of the Act. Thus, it is clear that in the year 1949, Jadavbai had only a limited estate in the property inherited by her from her husband and she had no right to make a gift in favour of Jeetmal, her grandson so as to confer title in favour of Jeetmal in respect of the suit house. 9. In view of the aforesaid legal position, the case set up by the respondents, the legal representatives of Jeetmal after his death, collapses like castle made of playing cards. Yet, there is another reason as to why the suit must fail assuming that there was a valid gift deed in favour of Jeetmal. According to plaintiffs, initially, Jeetmal had mortgaged the suit house in favour of Mohanlal, and Kamlabai was inducted as tenant on payment of monthly rent. Kamlabai suffered a decree for eviction and in order to avoid the decree, she had paid off Mohanlal and Mohanlal in his turn passed a receipt by way of endorsement in Exhibit D-2, so called original mortgage-deed executed by Jeetmal in favour of Mohanlal. A bare perusal of the endorsement would reveal that it was not purely a receipt acknowledging the payment of mortgage money, but it also extinguished the right of Mohanlal as mortgagee. The question is, therefore, whether this required registration. A bare perusal of the endorsement would reveal that it was not purely a receipt acknowledging the payment of mortgage money, but it also extinguished the right of Mohanlal as mortgagee. The question is, therefore, whether this required registration. As per Section 17(2)(xi), the document in question is not covered by the exception because it extinguished the right of Mohanlal as a mortgagee and created a right of mortgage in favour of Kamlabai. It was not a simple receipt of payment of money due under the mortgage and thus, same required registration. One may profitably refer to Mulla's Indian Registration Act, 10th Edition, at Page 153 in this connection. Thus, it is clear that the endorsement on document (Exhibit D-2) was a release document which extinguished the rights of Mohanlal as mortgagee and created new rights in favour of Kamlabai and in view of Section 49 of the Registration Act, the said unregistered document did not amount to mere recital of facts but became the basis of the plaintiff's suit for possession based upon title because whatever previous rights of Mohanlal as mortgagee, may have been, if the endorsement is valid and can be enforced in Court of law, the rights of the parties as declared therein can also be enforced. This being so, this Court is of the view that the endorsement should have been registered and as Section 49 of the Registration Act lays down in clear terms that no document, which requires registration shall be received as evidence of any transaction affecting such immovable property comprised therein, the endorsement in question was not admissible in evidence. Thus, in view of the foregoing discussion, impugned judgment and decree passed by the lower appellate Court as well as by the trial Court cannot be sustained in law. 10. Before parting with the case, it is necessary to deal with another submission of learned counsel for the respondent that the plaintiffs in the alternative had set up a case of possession based upon their title. In this connection learned senior counsel for respondent submitted that Laxman was natural father of Jeetmal, therefore, Jeetmal had a right to succeed to the property upon death of Jadavbai. Jadavbai died in the year 1954, but there is no pleading or evidence adduced by the plaintiffs that Jeetmal remained in his natural family till the death of Jadavbai. In this connection learned senior counsel for respondent submitted that Laxman was natural father of Jeetmal, therefore, Jeetmal had a right to succeed to the property upon death of Jadavbai. Jadavbai died in the year 1954, but there is no pleading or evidence adduced by the plaintiffs that Jeetmal remained in his natural family till the death of Jadavbai. On the contrary, it is an admitted fact that Jeetmal went in adoption to the family of Rakhabdas, his maternal grand father. The finding of fact has been recorded that Laxman died in the year 1950. It is not the case of the plaintiffs that Jeetmal was given in adoption by Laxman's widow, therefore, one would not be wrong in drawing an inference that Jeetmal went in adoption prior to the death of his natural father viz. Laxman. Once this is accepted, then the adoption had the effect of transferring the adopted boy from his natural family to the adopted family and he became the nearest heir of his adopted father in the matter of succession of property. The only exception to the aforesaid rule was and still is, that if any property is vested prior to adoption, then the adopted son does not lose his rights in such property. As has been pointed herein above that it has not been established by cogent and relevant evidence that the suit house became the property of Jeetmal prior to his adoption in the family of Rakhabdas, therefore, after his adoption, he would not be entitled to claim the suit property by way of succession. It is also relevant to point out that upon death of Jadavbai, she was surviving by widow of Laxman and his 3 daughters and all of them took limited estate in the ancestral property and after coming into force of Hindu Succession Act, 1956, their limited estate was converted into absolute estate and they acquired full heritable rights in the suit property. Indisputably, Kashibai, mother of Kamlabai died in the year 1963 and after her death, she is the lone survivor, therefore, she would inherit the property even after the death of Kashibai. 11. In view of the foregoing discussion, it has to be held that the findings recorded by Courts below are contrary to law and as such cannot be sustained. Indisputably, Kashibai, mother of Kamlabai died in the year 1963 and after her death, she is the lone survivor, therefore, she would inherit the property even after the death of Kashibai. 11. In view of the foregoing discussion, it has to be held that the findings recorded by Courts below are contrary to law and as such cannot be sustained. In the result, the judgment and decree passed by the trial Court as well as lower appellate Court is hereby reversed and the appeal filed by the defendants is allowed with costs throughout. Counsel's fee Rs. 1,000/- (One Thousand), if certified. Appeal allowed.