JUDGMENT Karamat Husain and Tudball, JJ.
1. This was a suit upon a mortgage. One of the pleas in defence was payment of the entire sum due on it. In support of that plea a receipt, dated Asadh Sudi 3rd, Sambat 1950, corresponding to 16th June, 1893, was produced. The court of first instance came to the conclusion that the receipt was not proved and that the payment was not proved. It, therefore, decreed the claim. There was an appeal to the lower appellate court, which found that the receipt was genuine, and reversed the decree of the first court. The plaintiff's have preferred a second appeal to this Court, and two points are pressed before us. The first is that there is nothing in the receipt and in the oral evidence adduced by the defendants to establish that the receipt refers to the mortgage which is the basis of the suit. The second is that the receipt purports to extinguish the right in the mortgaged property, and that, as it is unregistered, it is inadmissible in evidence. The receipt is to the following effect:--"The bond is returned. No money remains due." The defendants adduced oral evidence to establish that on the day on which the receipt was executed the sum of Rs. 275 was paid. The lower appellate court has believed that evidence.
2. Regarding the plea that the receipt does not show that the bond in dispute was paid up, we are of opinion that this is entirely a new point which was not raised either in the first court or in the court of first appeal, and as it raises a question of fact, we are not inclined to give the appellants an opportunity to have that point tried de novo at this stage of the litigation.
3. On the second point, having regard to the cases Dalip Singh v. Durga Prasad (1877) I.L.R. 1 All. 442; Imdad Husain v. Tasadduk Husain (1884) I.L.R. 6 All. 335; Jiwan Ali Beg v. Basa Mal (1886) I.L.R. 9 All. 108; Sri Ram v. Kesri Mal (1896) I.L.R. 18 All. 338; Fakir v. Khotu (1882) I.L.R. 4 Bom. 590 and Lakshman v. Damodar (1900) I.L.R. 24 Bom. 609 and the express wording of Section 17 Clause (2) Sub-clause (xi) of the Indian Registration Act No. XVI of 1908, we are of opinion that the receipt, though unregistered, so far as it relates to the payment of the entire sum of the money due on the mortgage on the date of the receipt, is admissible in evidence, and the words "no money remains due" do not, in our opinion, purport to extinguish the mortgage. That being so, the receipt does not require registration. The result is that the appeal fails and is dismissed with costs.