civil appellate jurisdiction civil appeal number. 1144-
1145 of 1969.
from the judgment and decree dated the 5th march 1964
of the madhya pradesh high companyrt in first appeal number 14 of

s. ray g.s. solanki s. kachwah and k.j. john for
the appellant in c.a. 1144/69 and for respondent number. 2 and
3 in c.a. 1145/69. l. sanghi. a.g. ratnaparkhi and k.k. gupta for the
appellant in c.a. 1145/69 and for respondent number 2 in c.a. 1144 of 1969.

s. desai and dr. y.s. chitale. rameshwar nath k.a. chitale and mrs. s. ramachandran for respondent number 1 in
both the appeals. the judgment of the companyrt was delivered by
desai j. . what companystitutes part performance within
the meaning of the expression in section 53-a of the
transfer of property act  act for short  so as to clothe a
mortgagee in possession with the title of ownership which
would defeat the suit of the erstwhile mortgagor for
redemption is the question canvassed in these two appeals
by companymon certificate. facts first sardar govindrao mahadik original plaintiff
1  number deceased prosecuting these appeals through his legal
representatives  and gyarsilal original plaintiff 2
 appellant 2  filed civil suit number 14151 in the companyrt of the
district judge indore for redemption of a mortgage in
respect of house number 41 more particularly described in
plaint paragraph 1 dated february 22 1951. a loan of rs. 10000 was secured by the mortgage. the mortgage was
mortgage with possession. plaintiff i was the mortgagor and
the sole defendant devi sahai was the mortgagee. plaintiff 2
is a purchaser of the mortgaged property from plaintiff i
under a registered sale deed ex. p-i dated october 14
1950. plaintiff i will be referred to as mortgagor defendant
devi sahai as a mortgagee and plaintiff 2 gyarsilal as
subsequent purchaser in this judgment. even though the
mortgage was mortgage with possession it was number a
usufructuory mortgage but an anumberalous mortgage in that the
mortgagor had agreed to pay interest at the rate of 12 and
the mortgagee was liable to account for the income of the
property earned as rent and if the mortgagee himself
occupied the same he was bound to account for the rent at
the rate of rs. 515 per annum. mortgagor served numberice dated
october 5 1945 calling upon the mortgagee to render true
and full account of the mortgage transaction. the mortgagee
failed to companyply with the numberice. subsequently it appears
that there were some negotiations between the mortgagor and
the mortgagee which according to the mortgagee culminated
in a sale of the mortgaged property in favour of mortgagee
for rs. 50000. account of the mortgage transaction was made
and the companysideration of
rs. 50000 for the sale of the house which would mean sale
of equity of redemption was worked out as under
rs. 25000 principal mortgage money plus the amount
found due as interest on taking accounts of
mortgage. rs. 17735 given credit for the amounts taken from time
to time by the mortgagor from the mortgagee s
for domestic expenses. this is disputed as
incorrect and it was suggested that the entry
be read as amount retained to pay off other
creditors of the mortgagor. rs. 1000 taken in advance for purchasing stamps and
incurring registration expenses. rs. 6265 to be paid in cash at the time of
registration before the sub-registrar. ----------
rs. 50000
----------
requisite stamps were purchased and the draft sale deed was
drawn up on october 10 1950 but it was never registered. on october 14 1950 ist plaintiff mortgagor sold the suit
house by a . registered sale deed to plaintiff 2 gyarsilal
for rs. 50000 with an agreement for resale. thereafter the
mortgagor and the subsequent purchaser as plaintiffs 1 and 2
respectively filed a suit on february 22 1951 against
mortgagee defendant devi sahai for taking accounts of the
mortgage transaction and for a decree for redemption. the mortgagee devi sahai defended the suit on diverse
grounds but the principal and the only defence canvassed was
one under section 53a of the act namely that even though
the sale deed purporting to sell equity of redemption having
number been registered would number clothe the mortgagee with
title of owner to the mortgaged property yet he companyld
defend his possession as transferee owner under the doctrine
of part performance in as much as number only is the mortgagee
in possession in part performance of the companytract of sale
but has companytinued in possession in part perfor-
mance of the companytract and has done several acts
unequivocally referable or attributable to the companytract and
that the mortgage as transferee has number only performed but
is willing to perform his part of the companytract and
therefore the mortgagor is debarred from enforcing against
the mortgagee any right in respect of the mortgaged
property. as a necessary companyollary it was also companytended
that plaintiff 2 has acquired numberright title or interest in
the mortgaged property under the alleged sale deed dated
october 14 1950 in view of the fact that the transferor
viz. original mortgagor had numbersubsisting title to the
property on the date of the sale which he companyld have
transferred to the 2nd plaintiff. arising from the pleadings of the parties trial companyrt
framed five issues. the trial companyrt held that plaintiff i
executed a sale deed of the mortgaged property in favour of
the defendant mortgagee but as the sale deed was number
registered the transaction of sale is riot companyplete on the
issue of protection of section 53a claimed by the defendant
mortgagee the trial companyrt held against him. it was held that
the mortgage being mortgage with possession companytinued
possession of the mortgagee after the date of the companytract
dated october 10 1950 would number be in part performance of
the company tract. the trial companyrt further held that numberpayment
was made companyld remotely be said to be in part performance of
the companytract. with regard to the payment of rs. 1000 for
purchase of stamps and expenses of registration it was held
that the same was paid before the execution of the companytract
and therefore companyld number be said to be in furtherance of the
contract. on these findings the trial companyrt held that
section 53a of the act was number attracted and the mortgage
was accordingly held to be subsisting and a preliminary
decree for taking accounts was passed. a companymissioner was
appointed for taking accounts. defendant mortgagee devi sahai preferred civil first
appeal number 14/66 to the indore bench of the madhya pradesh
high companyrt. when this appeal was pending appellant motilal
in companynate civil number1145/69 applied under order 22 rule 10
code of civil procedure for being joined as a party to the
appeal claiming that under s the sale certificate dated
march 25 1953 issued by the additional city civil judge
first class indore he had purchased the equity of
redemption in respect of the mortgaged property and that he
has a subsisting interest in the property involved in the
dispute and therefore he would companytest the rights of the
plaintiffs as well as of the mortgagee defendant to claim
any right title or interest in the
property. in his application motilal alleged that he had
filed civil suit number 243/47 dated numberember 31947 for
recovering a certain amount against the 1st plaintiff
mortgagor and had secured attachment before judgment of the
mortgaged property on numberember 6 1947. his suit was decreed
to the extent of rs. 2500 by the trial companyrt. he filed
execution application number 216/51 and in this proceeding the
mortgaged property was sold subject to mortgage and he
purchased the same for rs. 300. the auction sale was
confirmed on september 25 1953. it may also be mentioned
that the mortgagor 1st plaintiff had preferred appeal
against the decree of the trial companyrt and the appellate
court by its judgment dated march 27 1953 allowed the
appeal and dismissed the suit of motilal in entirety. against the appellate decree motilal filed second appeal number
78/53 in the high companyrt and by its judgment dated september
4 1958 motilals claim to the tune of rs. 500 against the
ist plaintiff mortgagor along with proportionate interest
and companyts was decreed. the application of motilal for being
impleaded as a party was companytested by the ist and the 2nd
plaintiffs as well as by the defendant mortgagee. the high
court allowed the application of motilal for being joined as
party to the appeal and examined the companytentions advanced on
his behalf on merits. the only companytention canvassed by the mortgagee in his
appeal in the high companyrt was that he is entitled to the
protection companyferred by section 53a of the act. in order to
attract section 53a it was urged that rs. 1000 advanced to
mortgagor for purchase of stamps etc. was in furtherance of
the companytract. the only such act pleaded was payment of rs. 1000 and numberother act or circumstance was relied upon. the
high companyrt was of the opinion that original mortgagee devi
sahai was entitled to the benefit of the doctrine of part
performance as against the ist plaintiff mortgagor govindrao
mahadik and his subsequent transferee gyarsilal because he
was in possession and companytinued to be in possession and paid
rs. 1000 in furtherance of the companytract. while so holding
the high companyrt imposed a companydition that the mortgagee must
pay or deposit in the companyrt an amount of rs. 24000 with
interest at the rate of 4 per annum from the date of
delivery of possession to him as vendee till the date of
payment or deposit on the footing that was the balance
consideration promised but number paid by the mortgagee. the
deposit was directed to be made in the trial companyrt within
three months from the date of the judgment of the high companyrt
for payment to the 2nd respondent which would enable
the mortgagee to retain possession of the mortgaged
property. the high companyrt gave a further direction that if
the payment or deposit as directed in the judgment was number
made the appeal of the mortgagee would stand dismissed and
if the amount directed in the judgment of the high companyrt was
paid or deposited in the trial companyrt within the stipulated
time the appeal of the mortgagee would stand allowed and in
that event the suit of the mortgagor would stand dismissed. in respect of motilals claim the high companyrt directed that
in either event he shall be entitled to recover the balance
of his decretal amount and interest at the rate of 4 per
annum from the date of the auction sale till the date of
realisation and to the extent of that amount there shall be
a charge on the mortgaged property enforceable at the
instance of motilal. in the circumstances of the case the
high companyrt did number award companyts to either side. both the original plaintiffs and motilal made separate
applications for certificate under article 133  l   a  and
 b  of the companystitution which were granted. hence these two
appeals. the appeal  ca 1144/69  preferred by the original
plaintiffs-plaintiff 1 being the mortgagor may be dealt
with first. in this appeal ist defendant  mortgagee  seeks
to number-suit the plaintiff on the only ground that he is
entitled to the benefit of equitable doctrine of part
performance as enacted in section 53a of the act. according
to the defendant-mortgagee the mortgagor agreed to sell the
mortgaged property to the mortgagee for companysideration of rs. 50000 made up in the manner set out in the sale deed ex. 1
dated october 10 1950 and pursuant to the agreement he has
given rs. 1000 being part of the companysideration for
purchasing stamps and for expenses of registration and after
stamps were purchased sale deed ex. 1 was drawn up and
executed and since then he being in possession retained the
same as a vendee and accordingly he is entitled to the
protection of section 53a of the act. this necessitates focussing of the attention on the
requirements what companystitutes part performance as enacted in
section 53a. even though at the hearing of the appeals what
was the state of law prior to the introduction of section
53a in the act by the transfer of property  amendment  act
1929 was canvassed at length we would like to steer clear
of this companyfusing mass of legal squabble and proceed to
analyse the companytents of section 53a subsequently referring
to legislative cum legal history so far as it is
relevant for interpretation of the section. section 53a
reads as under
53a. where any person companytracts to transfer for
consideration any immovable property by writing signed
by him or on his behalf from which the terms necessary
to companystitute the transfer can be ascertained with
reasonable certainty and the transferee has in part
performance of the companytract taken possession of the
property or any part there of or the transferee being
already in possession companytinues in possession in part
performance of the companytract and has done some act in
furtherance of the companytract and the transferee has
performed or is willing to perform his part of the
contract. then number withstanding that the companytract though
required to be registered has number been registered or
where there is an instrument of transfer that the
transfer has number been companypleted in the manner
prescribed therefor by the law for the time being in
force the transferor or any per son claiming under him
shall be debarred from enforcing against the
transferred and persons claiming under him any right in
respect of the property of which the transferee has
taken or companytinues in possession other than a right
expressly provided by the terms of the companytract
provided that numberhing in this section shall affect
the rights of a transferee for companysideration who has no
numberice of the companytract or of the part performance
thereof. in order to qualify for the protection companyferred by the
equitable doctrine of part performance as enacted in section
53a the following facts will have to be established

that the transferor has companytracted to transfer for
consideration any immovable property by writing
signed by him or on his behalf from which the
terms necessary to companystitute the transfer can be
ascertained with reasonable certainty

that the transferee has in part-performance of the
contract taken possession of the property or any
part thereof. or the transferee. being already in
possession
continues in possession in part performance of the
contract

that the transferee has done some act in
furtherance of the companytract and

that the transferee has already or is willing to
perform his part of the companytract.  see nathulal

phool chand. there was numberdispute that the aforementioned companyditions have
to be satisfied to make good the defence of part
performance. the companytroversy is on their application to the
facts of the case. the high companyrt which accepted the defence of part
performance as canvassed on behalf of the mortgagee who
claimed to have purchased the property under a sale deed
ext. d 1 dated october 10 1950 found that payment of rs. 1000 for purchase of stamps was an unequivocal act in
furtherance of the companytract. the defendant mortgagee did number
invite the high companyrt to companysider any other act as having
been done by him under the companytract or furtherance of the
contract or unequivocally referable to the companytract. however when the matter was heard in this companyrt mr. v s.
desai learned companynsel appearing for the respondent
mortgagee urged the following acts as having been done by
the mortgagee in furtherance of the companytract which would
constitute part performance
 a  payment of rs. 1000 as agreed to under the
contract for purchase of stamps for drawing up and
registering the sale deed
 b  discharge of a debt of rs. 541 which was included
in the amount of rs. 17735 retained by the
mortgagee from the total companysideration payable for
discharging other debts
 c  mortgagee agreed to discharge the mortgage
subsisting on the property in his favour on
settlement of accounts
 d  all dues owed by the mortgagor to the mortgagee
may have to be taken as cleared on companypletion of
the
 e  nature and character of possession changed as
recited in the companytract
a few more circumstances were relied upon to show that the
mortgagee was willing to perform his part of the companytract
and the omissions pointed out are number fatal to his case. they are
 f  failure to offer the amount agreed to be paid
before the registrar and or number discharging debts
agreed to be discharged as having been given
credit in the companysideration for the sale would number
detract from part performance because they have to
be evaluated in the facts and circumstances of the
case
 g  companyduct of the 1st plaintiff mortgagor in
executing and registering a sale deed in respect
of the mortgaged property in favour of the 2nd
plaintiff gyarsilal and thereby frustrating the
contract of sale in favour of the defendant
mortgagee evidence that the 1st plaintiff
mortgagor was aware of the companytract in favour of
the defendant mortgagee and he was retaining
possession in furtherance of the companytract
 h  defendant mortgagee made all attempts to get the
deed registered by approaching the sub-registrar

the defendant mortgagee initiated criminal
proceedings against the 1st plaintiff mortgagor
for misusing the stamp papers. ordinarily this companyrt would be loath to examine
contentions of facts based on evaluation of evidence
advanced for the first time before this companyrt without any
attempt at inviting the adjudication of the same by the high
court. however as all the companytentions arise from the record
and proceedings we propose to examine them on merits more
so because we do number propose to rest this judgment on a
technical around and also because we are inclined to reverse
the decision of the high companyrt which is in favour of 1st
defendant mortgagee. section 4 of the statute of frauds 1677 of united
kingdom provided that numberperson shall be charged upon any
contract for sale of lands or any interest in land etc. unless the agreement or some memorandum or some numbere thereof
shall be in writing and signed by the party to be charged
thereunder or some other person there unto by him lawfully
authorised. this provision has been substantially re-enacted
in section 40  i  of the law of property act 1925 with this
departure that sub-section 2 specifically provides that the
substantive provision in sub-section i does number effect the
law relating to part-performance or sales by the companyrt. as
numberaction companyld be brought on oral agreement the doctrine of
part performance was devised by the chancery companyrt with a
view to mitigating the hardship arising out of an advantage
taken by a person under an oral companytract and failure to
enforce it would permit such person to retain the undeserved
advantage by the equity companyrt enforcing the companytract. the
situation must be such that number to enforce the companytract in
face of the defence of statute of frauds after taking
advantage of oral companytract would perpetuate the fraud which
the statute sought to prevent the party who altered its
position under the companytract must have done some act under
the companytract and it would amount to fraud in the opposite
party to take advantage of the companytract number being in
writing. such a situation arose where one of the parties to
the oral agreement altered its position and when specific
performance was sought after taking advantage under oral
contract set up the defence available under the statute of
frauds. the chancery companyrt while granting relief of specific
performance wanted to be wholly satisfied that the pleaded
oral companytract exists and is established to its utmost
satisfaction and in order to ascertain the existence of the
oral companytract before granting a relief of specific
performance the companyrt wanted to be satisfied that some such
act has been done which would be unequivocally referable to
the oral companytract as would prove the existence beyond
suspicion meaning part performance of the companytract. the
departure under our law is that when giving its statutory
form in section 53a of the act the existence of a written
contract has been made sine qua number and simultaneously the
statute also insists upon proof of some act having been done
in furtherance of the companytract. the act relied upon as
evidencing part performance must be of such nature and
character that its existence would establish the companytract
and its implantation. each and every act subsequent to
contract by itself may number be sufficient to establish part
performance. the act must be of such a character as being
one unequivocally referable to the companytract and having been
per. formed in performance of the companytract. in lady thynne

earl of glengall it was observed that part performance
to take the case out of the statute of frauds always
supposes a companypleted agreement. there can be numberpart
performance where there is numbercompleted agreement in
existence. it must be obligatory and what is done must be
under the terms of the agreement and by force of the
agreement. this approach would necessitate that the act
relied upon as being in the part-performance of the companytract
was such as by its own force would show the very same
contract as is alleged by the person seeking the protection
of part-performance. in the fact situation as it unfolds itself in this
case companytinued possession of the mortgagee hardly offers
any clue to the question of part performance. defendant
mortgagee was in possession of the mortgaged property. therefore physical possession having number changed hands it
would be for the mortgagee to show that he companytinued to
retain possession in part performance of the companytract and
has done some act in furtherance of the companytract. where
physical and actual possession was already with the person
claiming the benefit of the doctrine of part performance its
continued retention by itself without anything more would
hardly be indicative of an act unequivocally referable to
part performance of the companytract. he must further establish
that he has done some act in furtherance of the companytract. this was number disputed and therefore the mortgagee
defendant urged before the high companyrt and reiterated before
us that payment of rs. 1000 inter alia to the ist
plaintiff mortgagor for purchase of stamps and for expenses
incidental to registration was an act unequivocally done in
furtherance of the companytract. before evaluating the submission a few relevant facts
may be numbericed. by letter ext. p-3 dated october 9 1950
ist plaintiff wrote to defendant mortgagee portion of which
may be extracted as it has some bearing on the question
under companysideration
 it is requested that we have entered into a
contract with you for the sale-condition of our house
number 12 situated in kalai mohalla. therefore to buy
stamps etc. for the sale you should pay rs. 1000
 rupees one thousand
only  to our mukhtiar shri madhavraoji vishnu joshi
82 ada bazar indorewale i agree for the same and
shall deduct the amount at the time of registration. pursuant to this letter defendant mortgagee paid rs. 700 to the muktiar and an endorsement to that effect is
found as ext. p-4. on the next day that is october 10 1950
a further amount of rs. 300 was given and stamps were
purchased and on the same day sale deed ext. 1 was drawn up. while reciting the companysideration for the sale deed a credit
was given for rs. 1000 paid by the mortgagee for purchase
of stamp. so far there is numberdispute. the grievance is that
according to the ist plaintiff mortgagor he had agreed to
sell the house to the mortgagee but the sale was to be a
conditional sale with a right to repurchase and that was
agreed to between the parties. subsequently when the sale
deed ext. d-1 was drawn up he found that it was an absolute
sale in breach of the agreement and therefore he did number
complete the transaction and sold the house subsequently on
october 14 1950 to the 2nd plaintiff under ext. p-1 which
is a companyditional sale with a right to repurchase. it would thus transpire that payment of rs. 1000
consisting of two separate payments-one of rs. 700 on
october 9 1950 and an amount of rs. 300 on october 10
1950 by the defendant mortgagee to ist plaintiff mortgagor
for purchasing stamps for execution of a sale deed is number in
dispute. what is in dispute is whether the payment was made
towards some companytract anterior to the letter ext. p-3 dated
october 9195 or it was in pursuance to the companytract dated
october 10 1950 as reflected in the unregistered sale
deed. in this companynection the stand taken by the mortgagee
defendant is both equivocal and fluctuating. in the written
statement filed on his behalf on april 10 1951 there is no
specific clear and unambiguous plea of part performance. under the heading additional plea in para 9 it is
contended that the sale deed having been executed in favour
of the mortgagee in settlement of mortgage transaction
mutually between the parties and that the mortgaged property
has been given to the mortgagee as an owner the mortgage
transaction does number subsist in law. this has been
understood to mean a plea for the protection of the doctrine
of part performance. be that as it may it is number suggested
that there was any oral companytract anterior to the one as
found in the unregistered sale deed ext. d-l. number is there
any suggestion of any draft agreement prior to the drawing
up of the sale deed ext. d-l. what transpires from
the diverse recital is that there was some oral discussion
between the parties prior to the letter ext. p-3 dated
october 9 1950 at which the understanding was that there
was to be a companyditional sale with a right of repurchase by
the mortgagor and that becomes evident from the recital in
ext. p-3 sale companydition which is companytemporaneous evidence
having its intrinsic worth and a stamp of truthfulness
because at that time numberdispute had arisen and the mortgagor
was seeking tc work out and implement the agreement by
seeking a loan of rs. 1000 for purchase of stamps and for
expenses incidental to registration so as to companyplete the
transaction. but there was numberwritten companytract. it must be
stated that there was dispute about the nature of
transaction is also borne out by the parol evidence. mortgagee devi sahai dw 1 has deposed in para 6 that
mortgagor in chit ex. p. 3 proposed a companyditional sale to
which he did number agree whereupon mortgagor agreed to give
absolute sale. this establishes that there was a dispute as
to the nature of the transaction. section 53a postulates a
written companytract from which the terms necessary to
constitute the transfer can be ascertained with reasonable
certainty. there was numberconcluded companytract prior to ext. d-

the only written companytract which is relied on is the
unregistered sale deed ex. d-l of october 10 1950. on the
admission of the mortgagee himself it is crystal clear that
out of rs. 1000 an amount of rs. 700 was paid on october 9
1950 and that was prior to the agreement. as for the
payment of rs. 300 it is number specifically claimed that was
payment in furtherance of the companytract. in any event stamps
were purchased prior to the drawing up of ext. d-l which is
the companytract relied upon for the purposes of section 53a. and it must be shown that the act has been done in
furtherance of the companytract i.e. subsequent to the companytract
or at best simultaneously with the companytract but un-
equivocally attributable or referable to the companytract. it
must follow that acts anterior to and done previous to the
agreement cannumber be presumed to be done in pursuance of it
and cannumber therefore be companysidered as acts of part
performance  see whiteread v. brockhunt quoted by white and
tudor leading cases on equity at p. 416 . the high companyrt while evaluating the probative value of
the circumstances of payment of rs. 1000 started on a wrong
premise when it observed that the act envisaged by the
phrase in furtherance of the companytract in section 53a should
be in pursuance of the companytract and number that it should
either precede or follow the
agreement or the companytract. if a written companytract is a sine
qua number for seeking companyerage of the umbrella of the
equitable doctrine of part performance any act preceding the
contract companyld companyceivably never be in furtherance of that
contract which was yet to materialise. negotiations for a
contract and a companycluded companytract stand apart from each
other. anything at the negotiating stage cannumber be claimed
as companytract unless the companytract is companycluded between the
parties i.e. the parties are ad idem. companypled with this is
the further requirement that it should be a written companytract
in that the companytract which would purport to transfer for
consideration the immovable property must be by writing and
the writing must be such that the necessary ingredients
constitute the transfer can be ascertained with reasonable
certainty. the high companyrt overlooking the very important
fact situation that the only companytract relied upon by the
mortgagee defendant was one companytained in the unregistered
sale deed ext. d-1 dated october 10 1950 companymitted an
error in holding that the payment of rs. 1000 prior to
october 10 1950 would undoubtedly be an act in pursuance of
the companytract which is evidenced by the writing ext. d-1 duly
signed by the ist respondent. this approach overlooks a
vital dispute between the parties and the high companyrt companyld
number have utilised this circumstance without resolving the
dispute in as much as unquestionably there were some
negotiations between the parties either on october 9 1950
or some time prior thereto but there was numberconcluded
contract because the very letter ext. p-3 which the ist
plaintiff mortgagor sought a loan of rs. 1000 for
purchasing the stamps etc. was pursuant to a companyditional
sale and that is totally denied and repudiated by the
mortgagee as shown hereinabove. accordingly when the amount
of rs. 1000 was paid it was the stage of negotiations and
number a companycluded companytract. and when the companytract was drawn up
as evidenced by ext. d-1 being the unregistered sale deed
dated october 10 1950 the parties were number ad idem. because the mortgagor declined to agree to registration of
the sale deed as it was companytrary to the understanding
arrived at between the parties though numberdoubt he had
executed the sale deed. the companytention therefore that the
amount of rs. 1000 was paid in furtherance of the companytract
does number bear scrutiny. however assuming that the finding of fact recorded by
the high companyrt that the amount of rs. 1000 was paid in
furtherance of the companytract is a finding of fact recorded
on appreciation and evaluation of evidence and ordinarily
number interfered with by this companyrt unless shown to be
perverse the alternative companytention that
payment of part or even whole of the companysideration companyld number
be said to be in furtherance of the companytract and therefore
number sufficient to companystitute part performance may number be
examined. how far payment of part or even whole of the
consideration would companystitute part performance so as to
take the case out of section 4 of the statute of frauds may
number be examined with reference first to the english
decisions because section 53a enacts with some modification
the english equitable doctrine of part performance. in order to mitigate the hardship arising out of the
rigorous provisions of the statute of frauds equitable
doctrine of part performance was divised by the companyrt of
chancery. companymenting upon section 4 of the statute of frauds
1677 lord redesdale observed in foxcroft v. lester l
 quoted in white tudors leading cases on equity 8th
edn. p. 413  as under
the statute of frauds says that numberaction or suit
shall be maintained on an agreement relating to lands
which is number in writing signed by the party to be
charged with it and yet the companyrt is in the daily
habit of relieving where the party seeking relief has
been put into a situation which makes it against
conscience in the other party to insist on the want of
writing so signed as a bar to his relief. the first
case  apparently  of this kind was foxcroft v. lyster
 1  which was decided on a principle acted upon in
courts of law but number applicable to the particular
case. it was against companyscience to suffer the party who
had entered and expended his money on the faith of a
parol agreement to be treated as a trespasser and the
other party to enjoy the advantage of the money he had
laid out. the question often arises whether payment of part or
even whole of the companysideration can be unequivocally
attributed to the companytract. at 416 the authors observe
payment of part or even of all the purchase-money
will number be companysidered an act of part performance to
take
a parol companytract out of the statute of frauds. number will
payment of the auction duty. the payment of a part or even a whole of the
consideration was number treated unequivocal act of part
performance because it was believed that money can be repaid
or can be reclaimed and therefore it is number an unequivocal
act evidencing an act in furtherance of the companytract  see
hanbury maudsley modern quity 10th edn. p. 37 . similarly storys equity jurisprudence 14th edn. para
1045 p. 424 neatly sets out the history of the approach to
payment of money as evidence of part performance. it may be
extracted
 it seems formerly to have been thought that a
deposit or security or payment of the purchase money
or of a part of it or at least of a companysiderable part
of it was such a part performance as took the case out
of the statute. but that doctrine was open to much
controversy and is number finally overthrown indeed the
distinction taken in some of the cases between the
payment of a small part and the payment of a
considerable part of the purchase-money seems quite too
refined and subtle for independently of the difficulty
of saying what shall be deemed a small and what a
considerable part of the purchase money each must
upon principle stand upon the same reason namely
that it is a part performance in both cases or number in
either. one ground why part payment is number number deemed a
part performance sufficient to take a case out of the
statute is that the money can be recovered back again
at law and therefore the case admits of full and
direct companypensation. equity by g.m. keeton and l.a. sheridan 2nd edn. p.
366 sets out chronumberogically the approach of the companyrt to
payment of money as evidencing part performance. attitude to
the payment of money as an act of part performance had
varied from time to time. in elizabeth meddison v. john
alderson 1  lord selborne l.c. pointed out
 the payment of money is an equivocal act number
 in
itself  unless companynection is established by parol
testimony indicative of a companytract companysisting of land. in snells principles of equity 20th edn. p. 587
under the heading insufficient acts to bring the case out
of the doctrine of part performance it is numbered that
payment of a part of the purchase-money or even apparently
the whole is number sufficient for part performance of a
contract for the sale of land for the payment of money is an
equivocal act  number in itself  until the companynection is
established by parol testimony indicative of a companytract
concerning land. maddison v. alderson is relied upon in
support of this statement. a few cases to which our attention was drawn may number be
referred to. in clinan and anr. v. companyke and ors.  1  companyke
inserted an advertisement in the public papers inviting
offers to let a piece and parcel of land for the period set
out in the advertisement. in response to this advertisement
the plaintiffs applied to edmund meagher to whom the
application was to be addressed and entered into a treaty
with him for lease of land. a memorandum of agreement was
entered into between the parties and the intending tenant
deposited 50 guineas which the advertiser received in
consideration of the lease on the recommendation of meagher
who also appeared to have received a sum of 20 guineas from
the plaintiffs for which numberreceipt was given subsequently
mr. companyke refused to perform the agreement and he granted a
new term of lease to the defendants who entered into the
same with the knumberledge of the agreement with the
plaintiffs. an action was brought by the plain tiffs for
specific performance. declining to grant that relief lord
redesdale held as under
but i think this is number a case in which part
performance appears. the only circumstance that can be
considered as amounting to part performance is the
payment of the sum of fifty guineas to mr. companyke. it
has always been companysidered that the payment of money is
number to be deemed part performance to take a case out of
the statute. in maddisons case earl of selborne l.c. in
unequivocal terms observed that it may be taken as new
settled that part payment of purchase money is number enumbergh
and judges of high authority
have said the same even of payment in full. clinan v. companyke
 supra  hughes v. morris 1  and britain v. rossiter 2  were
relied upon in support of this. again at p. 484 lord ohagan
taking numbere of the companyflict of decisions pertinently
observed as under
i companyfess i have found it hard to follow the
reasoning of the judges in some of the cases to which
the lord chancellor has referred to reconcile the
rulings in others of them-and to regard as entirely
satisfactory the state of the law in which the taking
of possession or receipts of rent is dealt with as an
act of part performance and the giving and acceptance
of any amount of purchase money companyfessedly in
pursuance and affirmance of a companytract of sale is number. as to some of the judgments prompted numberdoubt by a
desire to defeat fraud and accomplish justice i am
inclined to companycur with the present master of the rolls
in britain v. rossiter  1  when he called them bold
decisions. it may be numbered that in that case an intestate induced a
woman to serve him as his house-keeper without wages for
many years and to give up other prospects of establishment
in life by a verbal promise to make a will leaving her a
life estate in land and afterwards signed a will number duly
attested by which he left her the life estate. lt was
contended on behalf of the woman who worked as house-keeper
that she had wholly performed her part by serving the
intestate as house-keeper till the intestates death without
wages yet the companyrt in its equity jurisdiction declined to
hold such an act as referable to any companytract and was number
such a part performance as to take the case out of the
operation of section 4 of the statute of frauds. this case
is being referred to show how firstly established and
entrenched the view was that payment is number enumbergh. offer to
work without wages was treated as evidencing some payment
number enumbergh to sustain the plea of part performance. the
equity should take such a view of human service and
sacrifice is difficult to appreciate. modern numberions of
equity fairplay and just approach would stand rudely shaken
by the view taken in that case and quoting the case is number
to be interpreted to mean sharing the view. in chaproniere v. lambert 1  the companyrt of appeal
reinforced the view which held the field till then that the
mere payment of rent is number such part performance to take
the case out of the statute and even payment of whole of the
purchase money has been held number to be sufficient to take
the case out of the statute. in so doing it reiterated the
view taken in muddison v. anderson  supra . in enland the law took a sharp u-turn in steadman v.
steadman 2  lord simon of claisdale under the heading
payment of money observed as under
it has sometimes been said that payment of money
can never be a sufficient act of part performance to
raise the required equity in favour of the plaintiff
or more narrowly that payment of part or even the
whole of the purchase price for an interest in land is
number a sufficient act of part performance. but neither
of the reasons put forward for the rule justifies it as
framed so absolutely. the first was that a plaintiff
seeking to enforce an oral agreement to which the
statute relates needs the aid of equity and equity
would number lend its aid if there was an adequate remedy
at law. it was argued that a payment companyld be recovered
at law so there was numbercall for the intervention of
equity. but the payee might number be able to re pay the
money  he might have gone bankrupt  or the land might
have a particular significance for the plaintiff  of
the equitable order for specific delivery of a chattel
of particular value to the owner  duke of somerset v.
cookson  or it might have greatly risen in value since
the payment or money may have lost some of its value. so it was sought to justify the rule alternatively
on the ground that payment of money is always an
equivocal act it need number imply a pre-existing
contract but is equally companysistent with many other
hypotheses. this may be so in many cases but it is number
so in all cases. oral testimony may number be given to
connect the payment with a companytract but circumstances
established by admissible evidence  other acts of part
performance for case for example what was said  i.e. done  in the magistrates companyrt in part
performance of the agreement makes it plain that the
payment of the 108 was also in part performance of the
agreement and number a spontaneous act of generosity or
discharge of a legal obligation or attributable to any
other hypothesis. to some extent therefore the statement of law in
maddisons case that it may be taken as well settled that
payment of part of purchase money or even the whole of the
consideration is number sufficient act of part performance can
be taken to have been shaken companysiderably from its
foundation. while text book writers and english decisions may shed
some light to illuminate the blurred areas as to whether
part payment of purchase money or even the whole of the
consideration would number be sufficient act of part
performance it is necessary that this aspect may be
examined in the background of statutory requirement as
enacted in section 53a. to qualify for the protection of the
doctrine of part performance it must be shown that there is
a companytract to transfer for companysideration immovable property
and the companytract is evidenced by a writing signed by the
person sought to be bound by r it and from which the terms
necessary to companystitute the transfer can be ascertained with
reasonable certainty. these are pre-requisites to invoke the
equitable doctrine of part performance. after establishing
the aforementioned circumstances it must be further shown
that a transferee had in part performance of the companytract
either taken possession of the property or any part thereof
or the transferee being already in possession companytinues in
possession in part performance of the companytract and has done
some act in furtherance of the companytract. the acts claimed to
be in part performance must be unequivocally referable to
the pre-existing companytract and the acts of part performance
must unequivocally point in the direction of the existence
of companytract and evidencing implementation or performance of
contract. there must be a real nexus between the companytract
and the acts done in pursuance of the companytract or in
furtherance of tho companytract and must be unequivocally
referable to the companytract. when series of acts are done in
part performance one such may be payment of companysideration. any one act by itself may or may number be of such a companyclusive
nature as to companyclude the point one way or the other but
when taken with many others payment of part of the
consideration or the whole of the companysideration may as well
be shown to be in furtherance of companytract. the companyrect
approach would be what lord reid said in steadmans case
that one must number first took at the oral companytract and then
see whether the alleged acts of part performance are
consistent with it. one must first look at the alleged acts
of part performance and see whether they prove that there
must have been a companytract and it is only if they do so prove
that one can bring in the oral companytract. this view may number
be wholly applicable to the situation in india because an
oral companytract is number envisaged by section 53a. even for
invoking the equitable doctrine of part performance there
has to be a companytract in writing from which the terms
necessary to companystitute the transfer can be ascertained with
reasonable certainty. therefore the companyrect view in india
would be look at that writing that is offered as a companytract
for transfer for companysideration of any immovable property and
then examine the acts said to have been done in furtherance
of the companytract and find out whether there is a real nexus
between the companytract and the acts pleaded as in part
performance so that to refuse relief would be perpetuating
the fraud of the party who after having taken advantage or
benefit of the companytract backs out and pleads number
registration as defence a defence analogous to section 4 of
the statute of frauds. we may recall here that the acts preliminary to the
contract would be hardly of any assistance in ascertaining
whether they were in furtherance of the companytract. anything
done in furtherance of the companytract postulates the pre-
existing companytract and the acts done in furtherance thereof. therefore the acts interior to the companytract or merely
incidental to the companytract would hardly provide any evidence
of part performance. the companytention of mr. desai that payment of rs. 1000
for purchase of stamps in an act of part performance
unequivocally attributable to the companytract dated october 10
1950 cannumber be accepted for two reasons one being that rs. 700 out of the amount of rs. 1000 was paid on october 9
1950 that is prior to the date of companytract. then there is a
serious dispute as to the nature of companytract which was
negotiated on october 9 1950 the day on which payment of
rs. 700 was made. mortgagor was insisting upon a companyditional
sale and defendant mortgagee declined to accept the
conditional sale and that is borne out by his evidence also. there was thus numberconcluded companytract on october 9 1950
and therefore the payment of rs. 700 out of rs. 1000 in
any case companyld number be said to be part performance and the
same reasons would mutatis mutandis apply to the payment of
rs. 300 also. in the facts of this case this payment would
number be an act of part performance. in
our opinion therefore the high companyrt recorded an utterly
unsustainable finding without minutely examining the
relevant evidence companypled with the requirements of law and
erred in holding that the payment of rs. 1000 was in
furtherance of the companytract. we would also add that in the
facts and circumstances of the case payment of rs. 1000 was
number such an act of part performance which would help
defendant mortgagee in any manner. mr. desai next companytended that the mortgagee discharged
a debt of rs. 541 which was included in the amount of rs. 17735 retained by the mortgagee from the total
consideration payable for discharging other debts and that
this payment was in furtherance of the companytract. this
contention is being put forward for the first time in this
court and should be negatived on that account alone. even
apart from this there is numbersufficient evidence to uphold
this companytention. in fact the defendant mortgagee himself
has to some extent prevaricated on the question of retention
of rs. 17735 out of the total companysideration for the sale
transaction agreed at rs. 50000. companysideration of rs. 50000 was made up inter alia by retaining rs. 17735 in
discharge of debts owed by mortgagor to mortgagee by
borrowing loans on different occasions for domestic
expenses. it is so stated in ext. d-l which had been
extracted earlier. mortgagee in his evidence gave a go bye to this recital
and deposed that the amount of rs 17735 from the total
consideration payable by him was retained by the mortgagee
for payment of other creditors of the mortgagor. even apart
from this he has number stated a word that out of the amount of
rs. 17735 he paid rs. 541 to any particular creditor. in
his written statement he has stated that the amount of rs. 17735 was kept in deposit for payment to other creditor of
the mortgagor. one such creditor was to be paid a sum of rs. this creditor is numbere other than the mortgagee himself. this would mean that he himself was creditor to whom he paid
rs. 541. assuming that he companyld have reimbursed himself
there is numberhing to show that he gave a discharge or that he
gave credit in his books of accounts. further there is no
statement in his evidence to that effect. that aspect was
never canvassed before the trial companyrt as well as the high
court and we find numbermaterial evidence to substantiate this
contention. the companytention has therefore to be negatived. the third act of part performance pleaded on behalf of
the mortgagee is that the mortgagee agreed to discharge the
mortgage
subsisting on the property in his favour on settlement of
accounts. the mortgage deed admittedly was number returned to
the mortgagor even after the mortgagor executed ext. d-1 the
sale deed which was number ultimately registered. but that is
number enumbergh. the mortgage admitted in his evidence that even
after ext. d-1 was executed he maintained the accounts of
mortgage and in that account he debited rs. 1000 paid to
the mortgagor for purchase of stamps. companyld it be said that
he had discharged or agreed to discharge the mortgage
subsisting on the property? there is however a piece of
evidence which companypletely belies the claim and demonstrably
establishes that mortgagee never claimed to regard himself
as owner from october 10 1950 the date of companytract but till
a later date companytinued to regard himself as a mortgagee
with subsisting mortgage. mortgagee made an application on
june 23 1952 nearly two years after the companytract of sale in
the execution proceedings filed by motilal seeking to bring
mortgage property to companyrt auction for realising his
decretal amount which decree he had obtained against the
mortgagor. in this application dated june 23 1952 mortgagee
has stated that till that date rs. 27792/2/3 were due under
the mortgage from the mortgagor and that fact must be numbered
in the sale proclamation and thereafter property should be
sold. number if on october 10 1950 accounts were made
mortgage was satisfied and mortgage debt was discharged how
is it that on june 23 1952 he retained the mortgage
account worked out the amount due and sought its mention in
the sale proclamation. this companyduct of mortgagee is
sufficient to negative this companytention. in any event mere
oral agreement to discharge a mortgage companyld hardly be said
to be an act of part performance unless in fact such an act
was done and that companyld have been only done by a discharged
mortgage deed being returned to the mortgagor. the next act of part performance pleaded by the
mortgagee is that all dues owed by the mortgagor to the
mortgagee have be taken as cleared on companypletion of the
contract number even here his stand is equivocal. in the
written statement it was stated that at the time of filing
the written statement a sum of rs. 29000 was found to be
due from the mortgagor. if on october 10 1950 all accounts
were made up how companyld he companytinue a mortgage account which
mortgage according to him came to be satisfied when he took
the sale deed and companytinued in possession in part
performance of the companytract ? therefore the submission is
without merits. the next act of part performance pleaded by the
mortgagee is that the nature and character of possession
changed as recited in the companytract. mortgagee was in
possession as mortgagee. number according to him since the date
of execution of the sale deed the nature of possession
changed. for this he relies upon a statement in the sale
deed ext. d-1 wherein it is stated that he is being put in
possession as owner. this mere recital is hardly indicative
of the change in the nature of possession. there is no
evidence to show that he moved the authorities that he would
be liable to pay taxes as owner. there is numberovert act on
his part to so assert possession as owner. a mere recital in
the disputed sale deed is of dubious evidentary value and
when it would be pointed out that he was never willing to
perform his part of the companytract which is a pre-requisite
for claiming protection of the doctrine of part performance
it will be shown that he believed himself to be a mortgagee
and acted as such even at a date much later than october 10
1950 from which date he claims to be the owner. induction into possession of an immovable property for
the first time subsequent to the companytract touching the
property may be decisive of the plea of part performance. mere possession ceases to be of assistance when as in this
case the person claiming benefit of part performance is
already in possession prior to the companytract and companytinues
to retain possession. however a reference to a statement of
law in halsburys laws of england 3rd edition vol. 36
para 418 would be instructive. it reads as under
where possession is given to a tenant before a
tenancy agreement has been companycluded and the possession
is retained after the companyclusion of the agreement the
possession if unequivocally referable to the
agreement is a sufficient part performance but subject
to this acts done prior to or preparatory to the
contract will number suffice. if a person claiming benefit of part performance is inducted
into possession for the first time pursuant to the companytract
it would be strong evidence of the companytract and possession
changing hands pursuant to the companytract. in hedson v.
heuland  1  it was held that although the entry into
possession was antecedent to the companytract yet the
subsequent companytinuance in possession being under the
circumstances unequivocally referable to the companytract
constituted a
part performance sufficient to take the case out of the
statute of frauds. in nathulals case the fact that nathulal parted with
possession after receiving part payment of the sale
consideration was held sufficient to companystitute part
performance. this companyrt observed that j part performance
of companytract phoolchand has taken possession of the property
and he had in pursuance thereof paid a part of the
consideration and thereby the first three companyditions tor
making good the defence of part performance had been
satisfactorily shown to exist. but greater emphasis was laid
on the decision of somnath iyer acting c.j. in babu
murlidhar v. soudagar mohammad abdul bashir and anr.  1  in
that case an unregistered agreement of sale executed by the
mortgagor in favour of the mortgagee in possession recited
that after the date of the agreement the mortgagee who had
been in possession as such would become the owner of the
property and that he companyld get his name mutated into
mutation register of the municipality and in implementation
of this agreement of sale the mortgagor himself made an
application for mutation to the municipal authorities and
the name of the mortgagee was mutated as owner of the
property it was held sufficient to clothe the mortgagee
with the protection of section 53a in a suit for redemption
of the mortgage and the mortgagors suit was dismissed. the
court attached companysiderable importance to the provision in
the unregistered agreement for mutation in favour of the
mortgagee as owner and the subsequent companyduct of the
mortgagor in making an application for mutation was held to
be the clearest indication which is essential for invoking
the doctrine of part performance. the decision can be said
to depend more or less on the facts of the case. however in
this companynection a reference was also made to thota china
subba rao and ors. v. matapelli raju and ors 2  that
decision is hardly of any importance because an extreme
contention was advanced on behalf of the mortgagee resisting
a suit for redemption that he companytinued to be in possession
in part performance of the agreement which argument was
repelled by the companyrt on the observation that the mortgagee
had never been in possession and the companytention that he was
always in companystructive possession companyld hardly assist him. in jahangir begum v. gulam ali ahmed 1  the companyrt after
holding that the defendant was in possession and had put up
a structure on it came to the companyclusion that he was number
entitled to the benefit of doctrine of part performance
because he was already in possession before the companytract to
transfer the property relied upon by him was entered into
and therefore it was obligatory upon him to show that he
had done some act in furtherance of the companytract in order to
constitute a part performance of the companytract. in kukali v.
basantilal 2  the facts found were that a mortgaged with
possession his house with b. subsequently a sold the house
to in companysideration of the mortgage debt and the amount
spent by a on improvements and repairs of the house. the
deed was number registered. subsequently a sold the same
property to under a registered sale deed. sued for
redemption. relied on the equitable doctrine of part
performance in defence. negativing the defence of part
performance the companyrt held that as was already in possession
as a mortgagee unless he shows that he did some act in
furtherance of the companytract over and above being in
possession mere companytinuance in possession would number
constitute part performance. the case is very near to the
facts disclosed in the case under discussion. there is an
understandable and numbereworthy difference in the probative
value of entering into possession for the first time and
continuing in possession with a claim of change in
character. where person claiming benefit of part performance
of a companytract was already in possession prior to the
contract the companyrt would expect something independent of
the mere retention of possession to evidence part
performance. therefore mere retention of possession is number
discharged companyld hardly be said to be an act in part
performance unequivocally referable to the companytract of sale. section 53a requires that the person claiming the
benefit of part performance must always be shown to be ready
and willing to perform his part of the companytract. and if it
is shown that he was number ready and willing to perform his
part of the companytract he will number qualify for the protection
of the doctrine of part performance. reverting to the
consideration recited in ext. d-l the sale deed even
according to the mortgagee it was agreed that he had
retained an amount of rs. 17735 out of the total
consideration of rs. 50000 for payment to the other
creditors of the mortgagor. barring a
claim made in the written statement that he paid himself rs. 541 which was included in the amount of rs. 17735 which
allegation itself is unconvincing there has number been the
slightest attempt on his part to pay up any of the creditors
of the mortgagor. there is numberhing to show that he had the
list of all the creditors of the mortgagor or that he made
any attempt to procure the list or that he issued a public
numberice inviting the creditors of the mortgagor to claim
payment from him to the extent of the companysideration retained
by him. number a single creditor has been paid is an admitted
position. but the more inequitous companyduct of the mortgagee
is that he had number made the slightest attempt to companytact any
of the creditors of the mortgagor or to pay even the
smallest sum. there is numbersuch statement in the written
statement but even in his evidence at the trial he has number
been able to show that he has paid any creditor or made any
attempt to pay any of the creditors including those whose
names were admittedly knumbern to him such as ramkaran
ghasilal kajodimal motilal bhagirath and kanhaiyalal
chagganlal. further shifting stand of mortgagee to suit his
convenience is discernible here. in ext. d-1 the entry of
rs. 17735 is described as have been taken from you from
time to time for domestic expenses. in his evidence
mortgagee states that this recital is incorrect and the
correct position according to him is that the amount of rs. 17735 from total companysideration payable by him was retained
to pay to other creditors of mortgagor. according to him the
only amount due to him from mortgagor outside the mortgage
transaction was a debt of rs. 541 only. mortgagee neither
paid himself number other creditors and thereby did number perform
his part of the companytract. he even did number pay a small
decretal amount of rs. 500 plus interest and companyts to
motilal in 1952 but allowed the property to be sold. companypled
with this is the fact according to the recital in ext. d-1
he had agreed to pay the balance of the companysideration of rs
6265 to the mortgagor at the time of registration of the
sale deed. number undoubtedly the mortgagor did number agree to
get the sale deed registered because there was a dispute
between the parties as to the nature of the transaction. but
the defendant mortgagee made unilateral attempt to get the
sale deed registered by offering it for registration. thus
while attempting to companyplete his title both legally and even
in equity he was under an obligation to pay rs 6265 to the
mortgagor. this liability is number disputed yet in this behalf
he has number stated anything in his examination-in-chief that
he made any attempt to pay that amount to the mortgagor. add
to this his failure to return the discharged mortgage deed
and his further averment that he used to maintain the
mortgage account
even after october 10 1950. all this would companyclusively
show a that the mortgagor himself was number willing to perform
his part of the companytract. in this view of the matter mr.
desais companytention that failure to pay the amount agreed to
be paid before the registrar and or number discharging debts
agreed to be discharged as having been given credit in the
consideration for the sale would number detract from part
performance because they have to be evaluated in the facts
and circumstances of the case cannumber be upheld. it was next companytended on behalf of the mortgagee that
the companyduct of the 1st plaintiff mortgagor in executing and
registering a sale deed in respect of the mortgaged property
in favour of 2nd plaintiff gyarsilal and thereby frustrating
the companytract of sale in favour of the defendant mortgagee
evidence that the ist plaintiff was aware of the companytract in
favour of the defendant mortgagee and he was retaining
possession in furtherance of the companytract. the submission
does number companystitute any independent act on the part of
mortgagee but it is merely anumberher facet of the fact of
permission being retained by the defendant mortgagee. retention of possession is of numberconsequence in this case
because the mortgage was number discharged and was subsisting
and the mortgage being a mortgage with possession the
mortgagee was entitled to retain possession. the fact that
immediately a sale deed was executed in favour of 2nd
plaintiff by ist plaintiff would show that he was unwilling
to accept the companytract as offered by the mortgagee. the
subsequent purchaser gyarsilal has taken a companyditional sale
and this reinforce the stand of the mortgagor. the existence
of the dispute about the nature of the transaction namely
according to the mortgagor he wanted an absolute sale and
this dispute between the parties as on october 10 1950 is
number in dispute. therefore the companyduct of the mortgagor is
consistent with this case. it was next companytended that defendant mortgagee made all
attempts to get the deed registered by approaching the sub-
registrar and that the defendant mortgagee initiated
criminal proceedings against the ist plaintiff mortgagor for
misusing the stamp papers need number detain us as they have
numberprobative value. having therefore examined all the companytentions
canvassed on behalf of the mortgagee we unhesitatingly reach
the companyclusion that the mortgagee has failed to prove that
he did any act in furtherance of the companytract companytinued
retention of possession being a circumstance of neutral
character in the facts and circumstances of
the case and it being further established to our
satisfaction that the mortgagee was number willing to perform
his part of the companytract it is clear that the mortgagee is
number entitled to the benefit of the equitable doctrine of
part performance. on the companyclusions hereby indicated the appeal
preferred by the plaintiffs  ca 1144/69  must be allowed and
the judgment of the high companyrt has to be set aside and the
one rendered by the trial companyrt is restored with companyts
throughout. that takes us to the second appeal preferred by motilal
being ca 1145/69. first a synumbersis of the facts relevant to
the dispute raised by appellant motilal. motilal filed civil
suit number 243/47 on numberember 3 1947 for recovering his debt
from mortgagor govindrao mahadik. in this suit he obtained
attachment before judgment of the suit property on numberember
6 1947. the suit of motilal ended in a decree in the amount
of rs. 2500 on march 15 1951. on march 27 1951 execution
application number216 of 1951 was made by motilal. on april 3
1951 the executing companyrt made an order that as the suit
property of the judgment debtor has already been attached by
an order of attachment before judgment steps should be
taken for drawing up a proclamation of sale under order xxi
rule 66 companye of civil procedure. the companyrt directed auction
sale of the suit property to be held on december 9 1951. it
appears that the auction sale was stayed. there was some
default on the part of the judgment debtor to companyply with
the companyditional stay order and on his failure auction sale
was directed to be held on march 23 1952. after companyrecting
the amount due on the mortgage of mortgagee in the
proclamation of sale a fresh auction was held on august 23
1952. in the meantime in the absence of any bidder at the
auction motilal the decree holder himself obtained
permission of the companyrt to bid at the auction and his bid in
the amount of rs. 300 was accepted and the sale in favour of
motilal was companyfirmed on september 23 1952.
in the mean time mortgagor govindrao mahadik the judg-
ment debtor in motilals suit filed regular appeal number
125/51 which was allowed by the additional district judge as
per his judgment dated march 27 1953 and thereby the suit
of motilal was dismissed in entirety. motilal preferred
second appeal number 78/53 in the high companyrt of madhya bharat
and by its judgment dated september 1 1958 motilals
appeal was allowed and a decree in
his favour in the amount of rs. 500 with interest and
proportionate companyts was passed. motilal made an application on april 2 1962 purporting
to be under order xxii rule 10 of the companye of civil
procedure alleging that he came to knumber about the suit filed
by the mortgagor for redemption of the mortgage in december
1961 and as the decision in the suit is likely to have an
impact on his rights and that as he is the purchaser of the
equity of redemption the mortgagor and the subsequent
purchaser from the mortgagor cannumber number maintain the action
for redemption of the suit property and he should be
substituted in place of the plaintiffs and be permitted to
prosecute the suit for redemption against mortgagee. this
application was companytested on behalf of the parties to the
suit. the high companyrt was number fully satisfied about the
explanation of delay in making the application by motilal
and was number even inclined to accept the suggestion that he
became aware of the suit in 1961 and that on the ground of
gross delay the application was liable to be dismissed. the
high companyrt ultimately made on order as under
therefore although ordinarily we might number be
inclined to allow motilals request to be impleaded in
this companyrt at the appellate stage we are of opinion
that it would be desirable to have final decision about
the various points of dispute between all the parties
in order to avoid further unnecessary litigation. from
this point of view only we would allow motilal to be
impleaded in the present litigation by addition of his
name and number by allowing him to replace both the
plaintiffs. having thus directed motilal to be impleaded as a party
respondent the high companyrt proceeded to ascertain evaluate
and adjudicate the right claimed by motilal and ultimately
held that in any event the auction purchaser motilal shall
be entitled to recover the balance of his decretal amount
and interest at the rate of 4 per annum from the date of
his auction sale till the date of realisation or deposit as
the case may be either from the appellant or from the
mortgagor or subsequent purchaser as the case may be and
that there shall be a charge on the suit property for the
aforementioned amount which shall be enforceable at the
instance of motilal by a sale of the property motilal was
held disentitled to companyts on account of the delay in filing
the application. mr. ray learned companynsel for the ist plaintiff
mortgagor companytended that the high companyrt was in error in
allowing the application of motilal to be impleaded as a
party because according to mr. ray motilal companyld number be said
to be claiming under the mortgagor and that therefore he
could number maintain the application under order xxii rule
10 companye of civil procedure. rule 10 of order xxii provides for companytinuance by or
against a person of any action who acquires any interest
either by assignment creation or devolution during the
pendency of suit with the leave of the companyrt. in
ascertaining whether motilal can maintain the application
his averments in the application will have to be taken as
the basis for invoking the companyrts jurisdiction under order
xxii rule 10. the question that will have to be posed would
be whether motilal acquired any interest by assignment
creation or devolution during the pendency of the suit and
would therefore be entitled to companytinue the suit. the suit
is primarily a suit for redemption of mortgage. a suit for
redemption of mortgage can be brought by a person holding
the equity of redemption. motilal companytends that the suit
property was sold at a companyrt auction with subsisting
mortgage thereon and the right title and interest of the
mortgagor was sold at the companyrt auction and on the sale
being companyfirmed and the sale certificate being issued he
acquired the interest either by assignment or devolution of
the original mortgagor. number this assertion is companytroverted
on behalf of the original mortgagor and the subsequent
purchaser companytending that much before the companyfirmation of
the sale on september 23 1952 the subsequent purchaser had
purchased the equity of redemption by the sale deed ext. p-1
dated october 17 1950 and that the original mortgagor had
numbersubsisting right title and interest in the suit property
on august 23 1952 being the date of the sale in favour of
motilal. this was companyntered on behalf of motilal by his
learned companynsel mr. g.l. sanghi asserting that motilal had
obtained an attachment before judgment of the suit property
by order dated numberember 6 1947 and that this was
subsisting till march 5 1951 when the trial companyrt decreed
the suit of motilal against the mortgagor in the amount of
rs. 2500 and till the application for execution was filed on
march 27 1951 and numberreattachment was necessary. these
facts are incontrovertible but one aspect of law has to be
examined as to what is
the effect of the judgment of the appellate companyrt in the
appeal filed by original mortgagor govindrao mahadik the
decree obtained by motilal to wit the appeal was allowed
and motilals suit was dismissed on march 27 1953. between
march 27 1953 till the high companyrt allowed the appeal of
motilal on september 4 1958 there was numbersubsisting
attachment but it must be recalled that by september 23
1952 the sale was companyfirmed and the sale certificate was
issued on march 25 1953 that the two days before the
appeal of mortgagor preferred against the decree obtained by
motilal was allowed on march 27 1953.
the averments of motilal in his own application would
prima facie be sufficient to sustain an application under
order xxii rule 10. the question whether he has acquired an
interest or number in the property either by assignment or
devolution which is the subject matter of dispute in this
appeal would have to be answered on merits but the narration
of chronumberogical events as delineated hereinabove would
clearly show that motilal has more than a mere semblance of
title which this companyrt will have to investigate. and even if
stricto sensu the application would number fall under order
xxii rule 10 cpc yet section 146 of the companye of civil
procedure would certainly enable motilal to maintain the
application  see smt. saila bala desai v. smt. nirmala
sundai dassai and anumberher at 1291 referred to with
approval in shew bux mohata ors. v. bengal breweries limited
ors. undoubtedly the high companyrt was reluctant to overlook
the gross delay in preferring the application but even after
this reluctance the high companyrt having granted the
application we would companysider it imprudent to reject the
application on the ground of delay. once motilal becomes a party two companytentions advanced
on his behalf will have to examined  a  has he become
under the sale certificate obtained by him a purchaser of
equity of redemption so as to dissentitle the original
mortgagor from bringing the present action  b  what is the
effect of the attachment before judgment secured by him on
numberember 6 1947 on the sale of equity of redeption in
favour of the subsequent purcharser under the sale deed ext. p-1 dated october 14 1950.
looking to the proclamation of sale it is crystal clear
that the property was sold subject to subsisting mortgage in
favour of devi
sahai mortgagee. at a companyrt auction what is sold is the
right title and interest of the judgment debtor. the
judgment debtor in the decree obtained by motilal was
original mortgagor sardar govindrao mahadik. subject to
other companyditions his right title and interest would be one
of a mortgagor that is the right to redeem the mortgage
style as equity of redemption. according to motilal this
equity of redemption was sold at the companyrt auction and it
was purchased by him. subject to the decision on the second
contention so as to the effect of attachment before
judgment there is numbersubstance in this companytention because
much before even the proclamation of sale was issued the
equity of redemption held by the mortgagor was sold by him
under sale deed ext. p-l dated october 14. 1950 in favour
of 2nd plaintiff gyarsilal. therefore even on the date of
the decree as also on the date of filing of the execution
application mortgagor had numbersubsisting interest in the
property which companyld be sold at the companyrt auction. on this
short ground it can be held that motilal did number acquire
under the sale certificate equity of redemption of the
mortgagee. but mr. sanghi learned companynsel for motilal companytended
that the transfer in favour of subsequent purchaser under
the sale deed ext. p.1 dated october 14 1950 by the
mortgagor is void against motilal because in the suit filed
by motilal he had obtained an order of attachment before
judgment of the suit property and this attachment before
judgment would companyer the right title and interest of the
mortgagor defendants in that suit and that any private sale
inter vivos of the attached property would under section 64
of the companye of civil procedure be void against the attaching
creditor. proceeding further along this line it was
contended that as a companyollary if the sale in favour of
subsequent purchaser is void against motilal then the equity
of redemption companytinued to remain vested in the original
mortgagor and at the companyrt auction the same was sold and
purchaged by motilal. this necessitates examination of the
effect of an order of attachment before judgment in a suit. order xxxviii rule 5 enables the companyrt to levy
attachment before judgment at the instance of a plaintiff if
the companyditions therein prescribed are satisfied. what is the
nature of attachment levied in this case is number made knumbern
save and except saying that the suit property was attached
and the sale proclamation mentioned therein the subsisting
mortgage. taking the best view in favour of motilal
one can say that what was attached was the equity of
redemption. the attachment was levied and companytinued to
subsist till the date of the decree. it would therefore
number be necessary to reattach the property. what is the effect of attachment before judgment ? attachment before judgment is levied where the companyrt on an
application of the plaintiff is satisfied that the
defendant with intent to obstruct or delay the execution of
any decree that may be passed against him  a  is about to
dispose of the whole or any part of his property. or  b  is
about to remove the whole or any part of his property from
the local limits of the jurisdiction of the companyrt. the sole
object behind the order levying attachment before judgment
is to give an assurance to the plaintiff that his decree if
made would be satisfied. it is a sort of a guarantee against
decree becoming infructuous for want of property available
from which the plaintiff can satisfy the decree. the
provision in section 64 of the companye of civil procedure
provides that where an attachment has been made any private
transfer or delivery of the property attached or of any
interest therein and any payment to the judgment debtor of
any debt dividend or other monies companytrary to. such
attachment shall be void as against all claims enforceable
under the attachment. what is claimed enforceable is the
claim for which the decree is made. motilals suit was for a
money claim. it finally ended in a decree for rs. 500 by
high companyrt and in between the 1st appellate companyrt had
dismissed motilals suit in entirety. there is numberhing to
show that the attachment which would companye to an end on the
suit being dismissed would get revived if a second appeal is
filed which ultimately succeeds. in fact a dismissal of the
suit may terminate the attachment and the same would number be
revived even if the suit is restored and this becomes
manifestly clear from the newly added provision in sub rule
 2  of rule 11 a of order xxxiii c.p.c. which provides that
attachment before judgment in a suit which is dismissed for
default shall number be revived merely because by reason of the
fact that the order for the dismissal of the suit for
default has been set aside and the suit has been restored. as a companyollary it would appear that if attachment before
judgment is obtained in a suit which ends in a decree but if
in appeal the decree is set aside the attachment of
necessity must fail. there should be numberdifficulty in
reaching this companyclusion. the question however is what happens if at an
intermediate state pursuant to the decree of the trial companyrt
the attached pro-
perty is sold at a companyrt auction ? how would the rights and
obligations of the auction purchaser be adversely affected
if the appeal is allowed and the suit is dismissed ? ordinarily where the appeal is preferred an attempt should
be made to obtain stay of the execution of the decree of the
trial companyrt. however it is numberorious that the appellate
court is loath or reluctant to grant stay of a money decree
and the judgment debtor may number be in a position to deposit
the decretal amount and in this situation more often the
execution proceeds and before the appeal is disposed of an
equity in favour of a third person as auction purchaser who
purchases the property at a companyrt auction may companye into
existence. if afterwards the appeal is allowed and the suit
is dismissed would the auction purchaser be adversely
affected ? the emerging situation in this case clearly
demonstrates the dilemma. ordinarily if the aution purchaser is an outsider or a
stranger and if the execution of the decree was number stayed
of which he may have assured himself by appropriate enquiry
the companyrt auction held and sale companyfirmed and resultant sale
certificate having been issued would protect him even if the
decree in execution of which the auction sale has been held
is set aside. this proceeds on the footing that the equity
in favour of the stranger should be protected and the
situation is occasionally reached on account of default on
the part of the judgment debtor number obtaining stay of the
execution of the decree during the pendency of the appeal. but what happens if the auction-purchaser is the decree
holder himself ? in our opinion the situation would
materially alter and this decree holder-auction purchaser
should number be entitled to any protection. at any rate when
he proceeds with the execution he is aware of the fact that
an appeal against the original decree is pending. he is
aware of the fact that the resultant situa-may emerge where
the appeal may be allowed and the decree which he seeks to
execute may be set aside. he cannumber force the pace by
executing the decree taking advantage of the econumberic
disability of a judgment debtor in a money decree and make
the situation irreversible to the utter disadvantage of the
judgment debtor who wins the battle and loses the war. therefore where the auction-purchaser is numbere other than
the decree holder who by pointing out that there is no
bidder at the auction for a numberinal sum purchases the
property to wit in this case for a final decree for rs. 500 motilal purchased the property for rs. 300 an
atrocious situation and yet by a technicality he wants to
protect himself. to such an
auction purchaser who is number a stranger and who is numbere
other than the decree holder the companyrt should number lend its
assistance. the view which we are taking is number unknumbern and
to some extent it will be borne out by the observations of
this companyrt in janak raj v. gurdial singh and anr. this companyrt
made a pertinent observation which may be extracted
the policy of the legislature seems to to be that
unless a stranger auction purchaser is protected
against the vicissitudes of the fortunes of the suit
sales in execution would number attract customers and it
would be to the detriment of the interest of the
borrower and the creditor alike if sales were allowed
to be impugned merely because the decree was ultimately
set aside or modified. viewed from this angle the order of the high companyrt
that the auction-purchaser decree holder motilal would be
entitled to recover the decretal amount of rs. 500 with
interest at the rate of 4 per annum and proportionate companyts
could be styled as manifestly equitable. however the companyrt
cannumber overlook the companyduct of the mortgagor govindrao
mahadik his subsequent purchaser gyarsilal and even the
original mortgagee devi sahai in number paying a small debt and
allowing the property to be auctioned and forcing motilal to
the logical end of litigation and yet without the slightest
recompense to go on investing into this bottomless pit of
unending litigation. and at best his attachment before
judgment is a security that his decree would be satisfied
from the property attached and sale to the extent of
recovery of decretal amount from attached property would be
against attaching creditor void. if we assure him payment of
decretal amount and companyts the sale in his favour is of no
significance. the logical companyrse for us would have been to
leave motilal to his own remedy which we companysider inequitous
in the facts and circumstances of this case. the order made
by the high companyrt would hardly provide him rs. 1500 to
recover which he must have spent at the inflated rate of
litigation companyts. in our opinion while number granting the
substantial relief claimed by motilal and looking to the
conduct of all the parties we direct that motilal should be
paid rs. 7500 inclusive of decretal amount interest
proportionate companyts and companyts of the litigation till today
and for this amount there will be a charge on this property
to be cleared by
govindro mahadik at the time of redemption of the property
which amount will have to be paid by gyarasilals heirs in
view of the sale-deed in favour of gyarsilal.


civil appellate jurisdiction civil appeal number 542 of 1967.
appeal from the judgment and decree dated january 24 1964
of the kerala high companyrt in appeal suit number 368 of 1959.
manual t. paikeday s.k. sabharwal and ganpat rai for the
appellant. r. somanatha iyer and m. r. k. pillai for the
respondent. the judgment of the companyrt was delivered by
sikri c.j. by judgment dated may 26 1970 this companyrt
 sikri j. as he then was and ray j.  allowed civil appeal
number 542 of 1967 set aside the judgment of the high companyrt
and passed a decree in favour of the appellant after
modifying the decree passed by the trial companyrt. the
respondent subsequently filed review petition number 35 of 1970
for review on the ground that they had failed to
bring to the numberice of the companyrt the provisions of
travancore regulation ix of 1094 and the fact that the loans
were. granted under the above regulation. we allowed review
on february 1 1971. this judgment is however in
continuation of our earlier judgment dated may 26 1970
the only new point which needs discussion is the effect of
the provisions of travancore regulation ix of 1094 on our
conclusion on the fourth point in that judgment. we had inter alia held that the fourth point raised by the
learned companynsel for the plaintiff is fatal for the
respondent. we observed that the bonds do number give power
to the government to sell the properties other than
mentioned in the bond. the properties mentioned in plaint a
schedule items 2 to 5 b schedule items 1 and 3 to 8 and c
schedule items were number given as security under the bond and
the government had numberauthority to sell them. it is
conceded on behalf of the respondent that all the properties
were sold in one lot. this in our opinion vitiates that
the sale of all the properties was void. the fourth point
raised before us was that the government had numberauthority
to attach and sell plaint a schedule items 2 to 5 and b
schedule items 1 and 3 to 8 and c schedule items which were
number given as security under the bonds and if the government
had numberauthority then the sale of all the properties is
void. we had while dealing with the third ground also
observed that numberother regulation has been brought to our
numberice which makes dues under this bond to be recoverable as
arrears of public or land revenue. it number transpires that regulation ix of 1094-travancore land
improvement agricultural loans regulation-provides for
recovery of land improvement loans from the borrower as if
they were arrears of land revenue due by him. section 7 of
the above regulation provides
7.  1  subject to such rules as may be made
under section 10 all loans granted under this
regulation all interests  if any  chargeable
thereon and companyts  if any  incurred in making
the same shall when they become due be
recoverable in any of the following modes
 a  from the borrower as if they were arrears
of land revenue due by him
 b  from his surety  if any as if they were
arrears of land revenue due by him
 c  except as regards the loans referred to in
section 4 out of the land for the benefit of
which
the loan has been granted as if they were
arrears of land revenue due in respect of that
land
 d  out of the property companyprised in the
collateral security according to the procedure
for the realisation of land revenue by sale of
immovable property other than the land on
which the revenue is due
provided that numberproceeding in respect of any
land under clause  c  shall affect any
interest in that land which existed before the
date of the order granting the loan other
than the interest of the borrower and of
mortgagees of or persons having cha
rges on
that interest and where the loan is granted
under section 3 with the companysent of anumberher
person the interest of that person and of
mortgagees of or persons having charges on
that interest. when any sum due on account of any such
interests or companyts is paid by a surety or an
owner of property companyprised in any companylateral
security or recovered from a surety or out of
any such property such sum shall on the
application of the surety or the owner of such
property be recovered on his behalf from the
borrower or out of the land for the benefit of
which the loan has been granted in manner
provided in this section. from these provisions it is quite clear that the loans
granted under the regulation interest and charges etc. can
be recovered in any or all of the four modes described in
the section. they can be recovered from the borrower under
clause  a  they can be recovered from recovered from a
surety under clause  b  the land for the benefit of which
the loan had been granted can be proceeded against under
clause  c  and under clause  d  property companyprised in the
collateral security can be proceeded against. the fact that
the properties which had been sold were number mentioned in the
bond as companylateral security or were number expressly
hypothecated does number make any difference because the
travancore revenue recovery act 1 of 1068 provides under s.
5 that when public revenue due on land may be in arrear
such arrear together with interest if any and companyts of
process. may be recovered by the sale of the defaulters
movable or immovable property or both in the manner
hereinafter provided. the learned companynsel for the appellant companytends that neither
the travancore revenue recovery act 1 of 1068 number the land
improvement and agricultural loans regulation ix of 1094
and
the rules made thereunder companyfer any power or jurisdiction
on the state government or its officers to sell through the
machinery of the revenue recovery act any other property of
the borrower than what he has specifically given by his bond
as security for the loan. it is further companytended that the
borrower does number incur any personal liability. unless he
has specifically so companyenanted in the bond and hence the
sale of all the 12 out of the 13 items of land sold--one
item alone having been a security-property under the loan
agreement-was unauthorised illegal and void. we are unable to agree with this companytention. it is number
necessary for the borrower to specifically so companyvenant in
his bond that he would be personally liable because s. 7  1
   a  of regulation ix of 1094 makes the borrower personally
liable. this is also made clear by sub-s.  2 . under sub-
s.  2  if a surety pays the loan he can request that the
money be recovered from the borrower on his behalf. the learned companynsel relied on the decision in ulahannan
quseph v. koohitti kochukiimari 1  where reference was made
to an earlier judgment in the dewan of travancore v. eravi
narayanan 2  in which it was held that though under section
59 of the revenue recovery regulation moneys due to
government under written agreements and all sums declared by
other regulations to be realisable as arrears of public
revenue may be recovered under this regulation that section
only makes the machinery or procedure prescribed in the
regulation applicable to such cases and it would number follow
that the incidents of a revenue sale held under section 39
would also attach to sales held under the authority
conferred by the provisions of section 59. the companyrt held
that the property in the case remained subject to the
plaintiffs prior charge. we are unable to appreciate how this case assists us on the
question whether there is any personal liability of the
appellant or number. the learned companynsel also due our attention to birendra nath
raha v. mir mahabubar rahaman  3 . in this case it was held
that according to the provisions of the bengal land revenue
sales act 1868 the properties in question companyld number be
sold because they were neither an estate number a tenure within
s. 5 of the act. numbersuch question arises in this case but
it may be mentioned that at page 336 the companyrt interprated
cl.  a  of s. 7 of the land improvement loans act to mean
that it imposed a personal liability on the borrower.  1  23 travancore law journal 1051 54.  2  29 travancore law reports 37.

a.i.r. 1947 cal. 332.
there is however authority against the companytentions of the
appellant. the madras high companyrt observed in gonjalada
bhojarajappa v. korlahalli halappa 1  as follows -
it is clear from s. 5 revenue recovery act
that for the recovery of a loan advanced under
the agriculturists loans act it is open to the
collector to sell any part of the immovable
property belonging to the defaulter and the
remedy is number companyfined to that particular
property in respect of which or for whose
improvement the loan had been taken. it may be numbered that section 5 of the agriculturists loans
act 1884 provides
every loan made in accordance with such rul-
es all interest  if any  chargeable thereon
and companyts  if any  incurred in making or
recovering the same shall when they become
due be recoverable from the person to whom
the loan was made or from any person who has
become surety for the repayment thereo
f as if
they were arrears of land-revenue or companyts
incurred in recovering the same due by the
persons to whom the loan was made or by his
surety. in interpreting this section the madras high companyrt in the
above mentioned case clearly held that it was open to the
collector to sell any part of the immovable property
belonging to the defaulter and the remedy was number companyfined
to that particular property in respect of which or for whose
improvement the loan had been taken. we may also mention that in lakshman venkatesh naik v.
secretary of state 2  while dealing with s. 7 of the land
improvement loans act 1883 which is in terms similar to
sec. 7 of travancore regulation ix of 1094 it was observed
that it was therefore open to the companylector to adopt all or
any of the four different methods which the section provides
for the recovery of the taqavi arrears. in the result the appeal is dismissed.