Dixit, J.:— These two second appeals are against one judgment and decree of the District Judge Mandsaur, modifying the decree of the Court of Civil Judge, First Class Mandsaur granting the plaintiff-respondent relief in the form of redemption of a mortgaged house.

2. The material facts are that on 31-12-1923 the plaintiff Labhchand executed a mortgage with possession of the suit house together with its appurtenant structures and land for Rs. 500/-. The mortgage deed was registered and it provided inter alia that the debt would carry no interest and the mortgagee would take the whole of the rents and profits; that on the expiry of seven years the mortgagor would be entitled to redeem the property at any time after repayment of Rs. 500/- the amount of the mortgage debt and such amount as the mortgagee might spend to the extent of Rs. 200/- on the reconstruction of an appurtenant structure namely a ‘Padal’ and further such amount exceeding Rs. 3/- per year which the mortgagee might spend for keeping the property in good and substantial repair. The plaintiff alleged that on several occasions he asked the mortgagee to allow him to redeem the property and also gave a notice to that effect to the defendant on 18-1-1945 but that the defendant ignored the plaintiff's demand for redemption. The plaintiff claimed to redeem the property on payment of Rs. 500/- to the defendant. The defendant-appellant Pannalal admitted the mortgage of 31-12-1923. He met the plaintiff's suit with the plea that from the date of the mortgage till 20-6-1924 he had with the consent of the mortgagor spent Rs. 425/- on the repairs of the mortgaged property; that on 20-6-1924 the plaintiff borrowed Rs. 175/- from him and executed a deed placing on the property already mortgaged, a further burden of the repayment of Rs. 600/-(the total of Rs. 425/- for repairs and Rs. 175/- borrowed) together with interest thereon at the rate of Rs. 12/- per cent per annum and further agreeing that the plaintiff would be entitled to redeem the property only on payment in a lump sum of the previous mortgage debt and the money secured by the deed of 20-6-1924. The defendant; further stated that under the deed of 20-6-1924: he was given the right to spend Rs. 100/- each year on the repairs of the property and that accordingly he had with the plaintiffs consent expended Rs. 4134/14/9 on the repairs.

3. The defendant's further plea was that on 30-8-1924 the plaintiff again borrowed Rs. 300/- on the security of the property in suit and executed on that date a deed for the repayment of Rs. 300/- together with interest at Rs. 12/- per cent per annum and stipulating that he would be entitled to redeem the property on repayment of the total amount of Rs. 1400/- and interest due on the deed of 30-8-1924 and the previous two deeds. It was said that the plaintiff could not recover the property claimed without payment of the money borrowed by and due on the foot of these deeds of further charge in addition to the amount of Rs. 500/- borrowed on 31-12-1923. According to the defendant the total amount due on these three deeds and payable by the plaintiff for redemption is Rs. 7879/14/9 consisting of (i) Rs. 500/- borrowed on 31-12-1923; (ii) Rs. 600/- secured by the deed of 20-6-1924; (iii) Rs. 1568/- interest on Rs. 600/- from 20-6-1924 to 1-4-1946 the date of the filing of the written statement; (iv) Rs. 4134/14/9 amount spent on repairs; (v) Rs. 300/- borrowed on 30-8-1924; (vi) and Rs. 777/- interest of Rs. 300/- from 30-8-1924 to 1-4-1946.

4. On 7-6-1946 the plaintiff admitted that the documents Ex. D.1 dated 20-6-1924 and Ex. D.3 dated 30-8-1924 bore his signatures. But on 1-8-1946 he filed a rejoinder denying the receipt of consideration namely Rs. 600/- and Rs. 300/- mentioned in these two deeds and saying that no repairs were done by the defendant in his “presence”.

5. The trial Judge in a most perfunctory judgment, which only stated his conclusions without any reasons to support them, held that the deeds Ex. D.2 and Ex. D.3 being unregistered were inadmissible in evidence for the purpose of charging the property for the payment of Rs. 175/- under Ex. D.2 and Rs. 300/- under Ex. D.3; that the mortgagee had spent Rs. 425/- on the repairs to the property; and that the plaintiff was entitled to redeem the property on repayment of Rs. 500/- due under the deed of 31-12-1923 and Rs. 425/- the amount spent by the mortgagee on repairs. Both the plaintiff and the defendants then appealed to the District Judge. The plaintiff's appeal was for reducing the price of redemption to Rs. 500/-; while the defendant's appeal was for enhancing it to Rs. 7879/14/9. These two appeals were heard together and disposed of by one judgment.

6. The learned District Judge took the view that the deeds Ex. D.2 and Ex. D.3 were compulsorily registrable under the Gwalior Registration Act Samvat 1971 and as they were not registered they could not be received as evidence of any mortgage or charge on the property; that treated as simple money bonds, the condition in the deeds Ex. D.2 and Ex. D.3 that the plaintiff would pay the amounts due under them before exercising his right of redemption amounted to a clog on redemption; that the mortgagee had failed to establish that he had spent Rs. 4134/14/9 on repairs and constructions as also the fact that the repairs and constructions were necessary and within the authority conferred on him by the mortgage deed of 31-12-1923; and that the mortgagee could not get even Rs. 425/- the amount spent on repairs as a part of the redemption price as by the execution of Ex. D.2 the plaintiff had made the payment of the amount. On these findings the learned District Judge accepted the plaintiff's appeal, reduced the price of redemption to Rs. 500/- and dismissed the mortgagee's appeal.

7. The defendant-mortgagee has now filed two separate appeals in this Court. One is stated to be against the judgment and decree of the District Judge allowing the appeal of the plaintiff and the other is directed against that very judgment and decree in so far as the mortgagee's appeal has been rejected thereby. In effect both the appeals are for raising the amount of redemption to Rs. 7879/14/9.

8. The principal questions canvassed in these appeals are whether the appellant is entitled to the benefit of the provisions of Section 54 of the Gwalior State Transfer of Property Act of Samvat 2001 corresponding to Section 53-A of the Indian Transfer of Property Act, 1882, and whether, even if he cannot invoke the doctrine of part-performance, the claim for the amount spent on repairs can be allowed on the ground of the repairs having been effected with the plaintiff's consent. The plaintiff's suit was instituted on 8-2-1946. On this date the Gwalior Transfer of Property Act which had been enacted in 1945 was in force. It must also be noted that when the deeds in suit were executed, there was in force in the Gwalior State, a Registration Act, S. 41 of which was in terms identical with Section 49 of the Indian Registration Act, as it stood before it was amended in 1929. The Gwalior Transfer of Property Act did not amend and introduce any proviso to Section 41 of the Registration Act similar to the existing proviso to Section 49 of the Indian Registration Act.

9. Mr. Chitale learned counsel for the appellant urged that the appellant has set out in his written statement all the facts necessary for founding a defence under Section 54 of the Gwalior Transfer of Property Act; that the question of the admissibility of Ex. D.2 and Ex. D.3 and of the mortgagee acquiring any right thereunder was also the subject-matter of an issue in the suit and there was material on which the Court could decide whether the appellant was entitled to the benefit of S. 54 and that, therefore the courts below erred in omitting to consider and apply the doctrine of part-performance.

10. It was said that Section 54 of the Gwalior Transfer of Property Act is retrospective in operation applying to suits filed after the Act came into force, although the transaction may be of an earlier date, and has the effect of relaxing the provisions of Section 41 of the Gwalior Registration Act so as to make unregistered documents admissible as evidence of part performance; that Section 54 of the Gwalior Transfer of Property Act would be rendered nugatory if Section 41 of the Registration Act is read as excluding an unregistered document from evidence even for the purposes of S. 54; that the documents Ex. D.2 and Ex. D.3 were deeds of further possessory mortgages of the property previously mortgaged and of consolidation of the previous liability; and that on the construction of the deeds Ex. D.2 and Ex. D.3 and the material on record it was amply established that the appellant continued in possession of the mortgaged property in part-performances of the contract embodied in Ex. D.2 and Ex. D.3 and that it was in furtherance of these contracts that he paid Rs. 175/- on 20th June 1924 and Rs. 300/- on 30th August 1924 to the plaintiff and spent Rs. 4134/14/9 on the repairs of the property.

11. It was further submitted that as the repairs and constructions were done with the consent of the plaintiff, the appellant-mortgagee was in any case entitled to add under the deed of 31-12-23 the amount spent to the original mortgage money.

12. In reply Mr. Waghmare learned counsel for the respondent contended that the appellant had not raised in specific terms either in his written statement or in the evidence the defence under section 54 Gwalior Transfer of Property Act he had not alleged that he continued in possession of the property in part performance of the contracts contained in the deeds Ex. D.2 and Ex. D.3 or that he had performed any act in furtherance of these contracts; that Section 54 of the Gwalior Transfer of Property Act was not retrospective and that it entitled a person to take the defence only if the document was admissible under Section 41 of the Registration Act; that Ex. D.2 and Ex. D.3 did not refer to the continuance of possession of the property but merely to payments of money; that payment was not an act of performance and that the appellant had not proved any act of performance done in furtherance of the contracts Ex. D.2 and Ex. D.3 As to Rs. 4134/14/9, the cost of repairs and constructions, learned counsel said that it had not been proved and sought to support the reasoning on which the learned District Judge disallowed Rs. 425/- the cost of repairs included in Ex. D.2

13. I am not disposed to accept the argument of the learned counsel for the respondent, that the appellant's defence under Section 54 of the Gwalior Transfer of Property Act cannot be considered in these appeals, inasmuch as it was not raised in so many words in the written statement. It is no doubt true that the plea involves questions of fact. But in a case where the defendant has stated in his written statement all the facts on which he bases his defence without deducing his legal position properly from those facts, it would not be right to reject the defence merely because the defendant has not properly appreciated the law bearing on the facts set out by him. Where the plea arises upon the pleadings and upon the record of the case, it is not only competent but expedient in the interest of justice to entertain the plea. Here, in making the averments with regard to deeds Ex. D.2 and Ex. D.3 of further charge, the appellant has distinctly suggested that he is in possession of the property by virtue of the original mortgage as also the deeds Ex. D.2 and Ex. D.3 and that pursuant to the contracts contained in Ex. D.2 and Ex. D.3 he paid certain moneys to the plaintiff and expended a large amount on the repairs of the property.

14. Again the questions whether Ex. D.2 and Ex. D.3 are admissible in evidence; whether the appellant can claim ‘any right’ on their basis; whether the plaintiff received any amount under Ex. D.2 and Ex. D.3 and whether the appellant spent any money on repairs became issues in the suit. The appellant is not seeking to raise a defence after amending his written statement. Nor is he contending that the lower court omitted to frame and try certain issues, relevant to his defence under Section 54 Gwalior Transfer of Property Act, and which properly arose upon the written statement. All that the appellant says is that on the pleadings and the material on record he has made out his defence under the doctrine of part-performance. The question whether he has or has not established it is entirely different. So also is the question whether if the defence under Section 54 of the Gwalior Transfer of Property Act has been prima facie established, the plaintiff by reason of the defendant's omission to raise plea in specific terms has been in any way misled in rebutting the defendant's evidence or, whether he has had sufficient opportunity to meet it.

15. Coming now to the merits of the contentions advanced on behalf of the appellant, the first point that requires consideration is whether Section 54 of the Gwalior Transfer of Property Act is retrospective and if it is applicable here whether Section 41 of the Gwalior Registration Act operates as a bar to the unregistered deeds Ex. D.2 and Ex. D.3 being received in evidence for the purposes of S. 54. Learned counsel appearing for the parties cited before us numerous authorities in which the question of the retrospective effect of Section 53-A of the Transfer of Property Act 1882 has been determined on consideration of the terms of S. 63 of Act 20 of 1929 which introduced the section and of the state of law, in what was British India, at the time when the Amending Act was enacted. These decisions cannot be of much assistance here and I do not think it necessary to review them. The reason is that S. 54 was not introduced in the Gwalior Transfer of Property Act by an amending Act analogous to Indian Act 20 of 1929. It was a part of the Gwalior Transfer of Property Act itself when it was enacted in 1945.

16. To me it seems that in considering whether Section 54 of the Gwalior Transfer of Property Act has or has not retrospective effect, the point to be considered is whether it affects or creates any substantive rights. If it does then prima facie it cannot be applied so as to interfere with vested rights. Now, the Privy Council decisions in — ‘Probodh Kumar v. Dantmara Tea Co. Ltd.’, AIR 1940 P.C 1 (A) and — ‘S.N Banerji v. Kuchwar Lime and Stone Co. Ltd.’, AIR 1941 P.C 128 (B) make it clear that Section 53-A of the Transfer of Property Act, 1882 creates no real right; it does not operate to create a form of transfer of property which is exempt from registration; the right conferred by that section is a right available only to the defendant to protect his possession. In other words it merely affords a defence which a party may raise in answer to a suit brought against him by the transferor. That being so, the relevant date for the applicability of Section 53-A of the Transfer of Property Act, 1882 or Section 54 of the Gwalior Transfer of Property Act would be the date of the filing of the suit and not the date of the agreement or contract. Section 54 Gwalior Transfer of property Act would, therefore, apply to all suits instituted after the Act came into force in 1945 in the former Gwalior state, although the transaction was effected before its enactment.

17. It is on this line of reasoning that the Rangoon High Court has held in — ‘Ko Po Mo v. Maung Lu Chin’, AIR 1937 Rang 402 (C) that Section 53-A of the Transfer of Property Act, 1882 is retrospective in the sense that it applies to suits filed after 1-4-1930, though the contract was entered into before the section came into operation. This view also finds some support in the observation of the Supreme Court in — ‘Maneklal Mansukhbhai v. H.J Ginwala and Sons’, AIR 1950 S.C 1 (D) that Section 27-A of the Specific Relief Act has no application to contracts of leases executed before 1-4-1940 though in such cases the defence under Section 53-A of the Transfer of Property Act is available to a person who has an agreement of lease in his favour, though no lease has been executed and registered. In the present case, as the suit was filed after the coming into force of the Gwalior Transfer of Property Act, the appellant is entitled to take the defence under S. 54, in respect of transactions effected before the enactment of Gwalior Transfer of Property Act.

18. As to the admissibility of the unregistered deeds Ex. D.2, and Ex. D.3, I think the words “notwithstanding that the contract though required to be registered has not been registered”, which occur in Section 54 of the Gwalior Transfer of Property Act are clear enough to show that the deeds would be admissible in evidence for the purposes of that section. If the suggestion of the learned counsel for the respondent that the defence under Section 54 of the Gwalior Transfer of Property Act can be taken only if the document containing the contract is admissible in evidence under Section 41 of the Registration Act is acceded to, then it is difficult to imagine the unregistered deeds of contract in respect of which the defence under S. 54, can be taken. In my opinion as the Gwalior Transfer of Property I Act is a subsequent piece of legislation, the words “notwithstanding that the contract though required to be registered has not been registered” which are to be found in S. 54, have the effect of expressly superseding the provisions of Section 41 of the Gwalior Registration Act, so as to admit in evidence unregistered agreements or deeds for the purpose of establishing the defence of part performance.

19. Mr. Waghmare sought to support his argument on this point by laying some stress on the fact that after the introduction of Section 53-A of the in Transfer of property Act 1882, Section 49 of the Indian Registration Act was also amended so as to enable S. 53-A, being used in supersession of S. 49. It is no doubt true that Section 49 of the Indian Registration Act was so amended. But from this it does not follow that if it had not been amended, an unregistered deed of contract would not have been admissible for the purpose of S. 53-A. The amendment in S. 49, was merely supplementary and one in reinforcement of S. 53-A. As observed by Beaumont, C.J, in —‘Rustomji Dossabhai Billimoria v. Bai Moti’, AIR 1940 Bom 90 (E), “the amendment of Section 49 of the Registration Act, was only passed ex abundante cautela and was not necessary”. I am, therefore, clearly of the opinion that Section 41 of the Gwalior Registration Act does not prevent the deeds Ex. D.2 and Ex. D.3, from being admitted in evidence for the purposes of Section 54 of the Gwalior Transfer of Property Act.

20. The further and the important question that then arises is whether the requirements of Section 54 of the Gwalior Transfer of Property Act have been satisfied in order to avail the appellant the benefit of the provisions of that section. Two of the four conditions that must be fulfilled for the defence of part performance under S. 54, are: (i) that there should be a contract to transfer for consideration any immovable property by writing signed by the transferor; (ii) and that the transferee should have in part performance of the contract taken possession of the property or any part thereof or, if already in possession should have continued in possession in part performance of the contract and should have done some act in furtherance of the contract. The essence of the doctrine of part-performance as embodied in Section 54 of the Gwalior Transfer of Property Act is that the possession relied upon should have been taken or continued in pursuance of and on the strength of the agreement in question. It must be referable to the agreement and nothing else, and unless that is made out, there can be no case of part-performance. The documents on which the appellant founds the defence are Ex. D.2 and Ex. D.3

21. The deed Ex. D.2 of 20-6-1924, first refers to the previous mortgage-deed of 31-12-1923 and to the amount of Rs. 425/- spent on the repairs to the property and proceeds to state that the executant has borrowed Rs. 175/- from the mortgagee Pannalal; that there shall be a further burden of Rs. 600/- on the property and this total amount of Rs. 600/- shall carry interest at the rate of Rs. 12/- per cent per annum and that “when the previous mortgage debt and the present one is paid in a lump sum, the mortgaged property shall be redeemed”.

22. The language used is this:

23. The deed then provides for the repairs to the property and says

24.

25. The subsequent document of 30-8-1924, by which the executant borrowed a further sum of Rs. 300/- is in similar terms and provides that when the total amount of Rs. 1400/- of the three deeds is paid, then the property shall be redeemed. The words of the condition in the deed Ex. D.3 are

26.

27. The argument presented by Mr. Chitale on behalf of the appellant was to the effect that upon the true construction of the documents Ex. D.2 and Ex. D.3, there was a consolidation and continuation of the previous mortgage liability, with an addition to the amount of the prior usufructuary mortgage and as the mortgage property could not be redeemed unless the amount of the three deeds was paid, the documents Ex. D.2 and Ex. D.3, must be deemed to be possessory mortgages and the continuance in possession of the appellant mortgagee after the execution of the deeds Ex. D.2 and Ex. D.3, could only be regarded as in pursuance of and on the strength of the contracts embodied in these deeds. The decisions in —‘Brijlal Singh v. Bhawani Singh’, 32 All 651 (F); ‘Har Prasad v. Ram-chandar’, AIR 1922 All 174 (FB) (G); and ‘Jagannath Kunwar v. Jaipal’, AIR 1933 All 257 (FB) (H), were relied upon to support the contention. I do not find myself able to accept the contention.

28. It is plain that it is only if the deeds Ex. D.2 and Ex. D.3 are taken as securing the subsequent advances by way of subsequent usufrutuary mortgages or mortgages with possession that the appellant can say that he is entitled to hold and continue in possession of the property as security for the subsequent advances. If the transactions contained in the deeds did not amount to usufructuary mortgages or mortgages with possession but amounted only to simple mortgages or a charge, then the appellant cannot claim that he was holding and continuing in possession of the property given to him as security under the mortgage deed of 31-12-1923, for the subsequent advances also. A glance at the documents Ex. D-2 & Ex. D-3, makes it clear that they are not possessory or usufructuary mortgages. In these documents there is no transfer of any interest in specific immovable property. The right of possession and enjoyment of profits having been already transferred to the appellant under the mortgage deed of 31-12-1923, there could be no transfer of this right over again by the subsequent deeds Ex. D.2 and Ex. D.3 The mortgagee was already in possession and therefore the mortgagor could not deliver possession again. There is also nothing in the deeds to show that the mortgagor authorised the appellant to continue in possession under those deeds.

29. There is also again no term about the appropriation of the rents and profits of the property towards the interest or the principal, of the subsequent advances. The mere fact that the deeds placed an additional burden on the property or that they contained the recital of their having been executed in continuation of the original deed cannot per se make them deeds of usufructuary or possessory mortgages. The condition that the property shall be redeemed on payment of all the sums due under the three deeds also does not evidence a mortgage with possession. What the deeds Ex. D.2 and Ex. D.3, speak of is redemption of the first mortgage and not of obtaining and retaining the possession of the property as security for the subsequent advances. There is a difference between redemption and the obtaining of possession. Redemption may take place without affecting possession. If by offering to redeem the mortgage dated 31-12-1923, without paying the amount due under the deeds Ex. D.2 and Ex. D.3, the mortgagor cannot recover the property, it is not because the deeds Ex. D.2 and Ex. D.3, authorised him to continue to hold the property as security for the subsequent advances till they are paid off, but because there is a contract which makes the redemption of the mortgage dated 31-12-1923, conditional on payment of all the sums due under the three deeds.

30. The mortgagor is entitled to get back the property on redeeming the mortgage dated 31-12-1923; but he cannot redeem this mortgage unless he pays along with the amount due under the mortgage, the amount of the subsequent advances with interest thereon. The mortgagee's continuance in possession of the property after the execution of the deeds Ex. D.2 and Ex. D.3, therefore remains one qua the deed dated 31-12-1923, and is not converted into one under the deeds Ex. D.2 and Ex. D.3 If, as I think, the continuance of the possession of the property by the appellant, is not on the strength of the deeds Ex. D.2 and Ex. D.3, then the appellant's defence under Section 54 of the Gwalior Transfer of Property Act, must fail. It is not necessary to consider whether the deeds Ex. D.2 and Ex. D.3, are simple mortgages or charges. For, as I have already pointed out, regarded as simple mortgages or charges, they cannot authorise the appellant to hold the possession of the property till the further advances have been paid up. The decisions on which reliance was placed by the learned Counsel for the appellant are distinguishable by the fact that they are not cases dealing with Section 53-A of the Transfer of Property Act, 1882 and they do not hold that if a person effects a usufructuary mortgage and then subsequently executes documents of further advances from the mortgagee stipulating to redeem the property on payment of the amount due under all the deeds, then the subsequent deeds must be deemed to be deeds of usufructuary mortgages.

31. In 32 All 651 (F), the question considered was whether when under a mortgage, the mortgagee-took possession of the mortgaged property and thereafter the mortgagor executed a subsequent simple mortgage covenanting that he would pay off the amount due on the second mortgage before redeeming the first, such a condition was a clog on the equity of redemption. It was held that the condition was not a clog on the equity of redemption. In the other two Allahabad cases it was held on the construction of the terms of deeds of subsequent advances that the intention of those documents was that the mortgagor did not have the right to redeem the property mortgaged under the first deed without payment of the money borrowed by and due on foot of subsequent deeds of mortgage or charge. In fact in AIR 1922 All 174 (FB) (G) where one of two co-owners who had subjected their property to a usufructuary mortgage, executed a further deed of mortgage of his share alone stipulating that he would not redeem the later mortgage without redeeming the earlier one, it was urged that the subsequent document could not be deemed to be a usufructuary mortgage. With regard to this contention, Banerjee J., while saying that he did not agree with the contention, immediately afterwards further observed that “the document which we have to consider in the present case was executed before the Transfer of Property Act was enacted and, therefore we have not to consider whether the document creates a pure usufructuary mortgage within the definition contained in the Transfer of Property Act”.

32. The case of ‘Mt. Rangili v. Pearey Lal, AIR 1940 All 101 (I),’ was also referred to by Mr. Chitale. In this case Mohammad Ismail J., simply followed ‘AIR 1922 All 174 (FB) (G)’ and held that where the mortgagor stipulates that he would not be entitled to get possession of the property mortgaged under the previous usufructuary mortgage regarding the same property, unless he pays the sum due under the subsequent mortgage, then the second mortgage in effect amounts to a usufructuary mortgage though the deed does not say so in so many words. This again is not a case under Section 53-A of the Transfer of Property Act, 1882 and therein there is no reference to the Full Bench decision in ‘Lallu Singh v. Ram Nandan’, AIR 1930 All 136 (FB) (J), which supports the view I have taken. The cases cited by the learned counsel for the appellant are not, therefore, of any assistance to the appellant.

33. On the other hand the observations of King and Niamatullah JJ., in the case of ‘AIR 1930 All 136 (FB) (J)’, lend support to the view that where a property is mortgaged by usufructuary mortgage, a second bond for subsequent advances stipulating not to redeem or resume possession of the property without paying not only the sum advanced under the first deed but also that under the second deed, creates a charge on the property and not a second or subsequent usufructuary mortgage. I am, therefore of the view that as the appellant's continuance in possession of the property is not in pursuance of the deeds Ex. D.2 and Ex. D.3, the benefit of Section 54 of the Gwalior Transfer of Property Act, cannot be given to him.

34. In the view I have taken of the mortgagee's continuance of possession of the property, it is not necessary for me to consider whether he has done any act in ‘furtherance’ of the contracts Ex. D.2 and Ex. D.3 But I must say with regard to the contention of the learned counsel for the respondent that as the payment of loan money is an equivocal act, it cannot be treated as an act in ‘furtherance’ of the contract, that it is not correct to say that no payment of money can be an act in ‘furtherance’ of the contract. If a connection is established by evidence between the payment and the contract, then the payment would be an unequivocal act referable to and in ‘furtherance’ of the alleged contract. That this is the correct rule is confirmed by the explanation given in the leading case of ‘Maddison v. Alderson, (1883) 8 A.C 467 (K)’, of the rule that mere payment of money is not an act of part performance. After stating the rule it has been observed by Lord Selborne ‘at p. 479’ that “the best explanation of it seems to be that payment of money is an equivocal act, not (in itself), ‘until the connection is established by parol testimony’, indicative of a contract concerning land”, (the underlining here into ‘ ’ is by me).

35. The remaining question in the case is the liability of the plaintiff to pay costs of repairs and improvements as a condition of redemption. The appellant bases his claim in this respect on the mortgage deed dated 31-12-1923 under which the mortgagor was given the right to redeem the property on paying besides the mortgage amount, such amount as the mortgagee might spend to the extent of Rs. 200/- on the reconstruction of the ‘Padal’, as also such amount exceeding Rs. 3/- per year which he might spend on the repairs of the house. The appellant further says that he spent first an amount of Rs. 425/- and then Rs. 4134/14/9 on the repairs and reconstruction of the property, which were done with the consent of the plaintiff. The learned District Judge disallowed Rs. 4134/14/9 holding that the appellant had not proved that the repairs and reconstructions were necessary or that he had actually spent that amount on the works of repairs and reconstructions, and further that the deed dated 31-12-1923 only authorised the appellant to incur an expenditure on these items only upto the limit of Rs. 200/-. The claim for Rs. 425/- was rejected on the ground that the amount had been repaid by executing the deed dated 20-6-1924.

36. In my opinion the learned District Judge took altogether an erroneous view of the matter. In his evidence the appellant while stating that it was with the consent of the plaintiff that he spent Rs. 4134/14/9 on the repairs and reconstruction has given the details of the work done. He also produced his account books containing entries made by him of the details of the expenditure. The plaintiff did not enter the witness box and led no rebutting evidence. The learned District Judge was not, therefore, justified in rejecting, the mortgagee's statement on oath by simply observing that he did not tender in evidence persons who did the work or from whom the material for the repairs and construction was obtained and that the account books were not regularly kept in the course of business. The mere fact that the appellant did not produce evidence to corroborate the details of the expenditure is not sufficient to deprive him of his right to recover the expenditure, which by his own evidence has been proved to have been actually incurred.

37. The account books could not be rejected merely because they were in the form of an when it is clear from the books and the appellant's statement that they have been regularly kept and entered by him. For the purposes of Section 34 of the Evidence Act no particular form of books of account is prescribed. All that is necessary is that the book should be such a regular and usual account book as explains itself and as appears on its face to create a liability in an account with the party against whom it is offered. It is not necessary that the entries in the books should have been made from day to day or from hour to hour as the transactions take place. But the person making the entries should have personal knowledge of the facts stated therein. (See ‘Gorelal v. Pannalal’, 1949 Madh. B.L.R 371 (L); ‘Ram Kuwar v. Pyarchand’, AIR 1952 Madh B. 55 (M)). On the appellant's unchallenged statement and the corroborative account books, I am satisfied that the expenditure of Rs. 4134/14/9 was incurred on the repairs and constructions.

38. The expenditure having been incurred with the plaintiff's consent, as the mortgagee says — and there is no reason to reject this statement — it was not necessary for the mortgagee to show that the expenditure was reasonable or that the work done was necessary. As observed by Jessel M.R in ‘Shepard v. Jones’, (1882) 21 Ch. D.469 (N), where the mortgagor agrees to a certain extraordinary expenditure, then it is unnecessary for the mortgagee to prove that it was reasonable. The mortgage deed dated 31-12-1923 clearly made the plaintiff liable to pay this expenditure before redeeming the property. The learned District Judge has also misconstrued the deed when he says that it puts a limit of Rs. 200/- on the expenditure to be incurred on repairs and constructions. The limit of Rs. 200/- is with regard to the expenditure for the construction of the Padal and not for repairs of the main house. Under that deed the plaintiff expressly undertook to pay all such expenditure exceeding Rs. 3/- per year which the mortgagee might incur on the repairs and reconstructions. The appellant is, therefore, entitled to add the amount of Rs. 4134/, 14/9 to the mortgage money.

39. As to the amount of Rs. 425/- claimed by the mortgagee on account of repairs, the liability of the plaintiff to pay it also arises under the deed of 31-12-1923. That liability cannot be said to have been discharged by the execution of the deed dated 20-6-1924 when the deed cannot be enforced for want of registration. Mr. Waghmare learned counsel for the respondent said that the contract to pay this amount was novated by the agreement of 20-6-1924. But there can be novation only if the new contract is a valid one and can be enforced. If the new agreement is in contravention of the provisions of any statute and cannot be enforced, it cannot serve as a novatio, and the old contract continues.

40. In ‘Mathura Mohan v. Ram Kumar’, AIR 1916 Cal 138 (O), Mookerjee and Chatterjee JJ., have after considering the decisions in — ‘Noble v. Ward’, (1867) 15 LT 672 (P); — ‘Doe d. Biddulph v. Poole’ (1848) 11 QB 713 (Q), and other English cases laid down the principle that where parties enter into a contract which if valid would have the effect of superseding a former contract and it turns out that the second contract cannot operate as the parties intended, then their rights under the former contract are not affected. The same rule has been laid down by the Privy Council in — ‘Har Chandi Lal v. Sheoraj Singh’, AIR 1916 PC 68 (R). In that case a mortgage of 13-11-1876 was substituted by another mortgage of 1887. When the mortgagee sued on the mortgage of 1887, it was held that it was not binding on the mortgagor but that the mortgagor's estate was liable under the original mortgage of 1876. Thereupon the mortgagee sued on the first mortgage. The mortgagor raised the defence that nothing was due under the mortgage of 1876 as it had been substituted by the mortgage of 1887. The Privy Council rejected this plea of the mortgagor and observed that it would not be consistent with equity or good conscience that the mortgagor, having successfully maintained that the new security was invalid, should be allowed to claim the benefit of the transaction by which the new security was created as a release of the old security.

41. These cases make it plain that the liability of the plaintiff to pay Rs. 425/- as costs of repairs arising under the mortgage deed of 31-12-1923 is wholly unaffected by the unregistered document dated 20-6-1924. The mortgagor must pay this amount also for the redemption of the property. For the above reasons I would accept these appeals in part and modify the decree of the lower Court by directing that if the plaintiff pays Rs. 5059/14/9 on or before 31-1-1955 (that is to say of Rs. 500/- the mortgage money and Rs. 4559/14/9 cost of repairs and constructions) and the proportionate costs of the appellant in all the courts, the mortgagee shall put the plaintiff in possession of the property and deliver up to him the mortgage deed dated 31-12-1923.

Shinde, C.J:— I agree.

42. Appeal partly allowed.