Burn, J.M:— The plaintiff sued to cancel a notice of ejectment which described him a sub-tenant on the ground that he was really a mortgagee of ordinary tenancy rights on behalf of the two defendants. The Assistant Collector cancelled the notice. In appeal the Deputy Commissioner sitting with powers of a Commissioner held that as the mortgage was for over Rs. 300 it required registration and could not therefore effect any immoveable property comprised in it, nor could it be admitted in evidence of a transaction affecting such property. The Deputy Commissioner has overlooked the fact that the defendant's Mukhtar admitted the transaction before the Assistant Collector and thus proof was not needed. (By mistake the Assistant Collector has described the Mukhtar Raghbar Dayal as the plaintiff's agent. He was really the defendant's agent). As the mortgage is admitted there was no need to prove it. Whether it affects the land or not as a valid charge is beside the point. The transaction is admitted and it is obviously inequitable that even in the cases of an invalid transaction, the person who is benefitted by it should be helped by the Court to repudiate that transaction. Moreover the defendant has described the plaintiff as a subtenant and he can eject him by notice only if there is a contract of sub-tenancy. There is no such contract and I would hold that the Assistant Collector was right in cancelling the notice. I would allow the appeal with costs in all Courts and restore the order of the Assistant Collector cancelling the notice.
Fremantle, S.M:— The mortgage not being registered could not (Section 49 Registration Act) be admitted in evidence of a transaction affecting the property to which ‘it purported to relate and therefore should not have been produced as evidence in Court. But it appears from the statements of the defendant and the patwari in Court that the plaintiff had advanced money to the defendant and was in consequence in possession as mortgagee. The same question as in this case arose in the case Ram Cham v. Sheojagat, No. 65 of 1920-21 Benares, and it was there held that since the mortgage was not registered estoppel would not arise.
2. But I now think that in the circumstances stated above’ where it was admitted that the plaintiff is in possession on account of money advanced by him to the defendant, the latter is estopped from ejecting him until the money is repaid. I therefore agree to the order proposed.
3. Appeal allowed.