M.C. Jain, J.
1. The plaintiff-appellant has been unsuccessful in both the courts below and his suit for redemption of mortgage of the agricultural land, has been dismissed.
2. The plaintiff-appellant mortgaged his share of the agricultural land measuring 3 'bighas' and 5 'biswas' with the defendant-respondent, who is his brother for a sum of Rs. 700/- on 13-8-1962 through a registered mortgage deed. On the same day he also executed an agreement to sell Ex. P/2. The relevant portion of the agreement reads as under :--
^^mldkseSus vkt 700 lkrlkS :i;s jgu j[k dj jftLVh djk nh tehu ij dCtk ns fn;k pwadh;g ekya vkdks bu gh :ih;s 700lkrlkS esa cspku dj ;g bdjkj djrk gwa fd ,d lkyckn vkidks cspku ukek fy[kk dj cSukek dha jftLVh djka nwxka oDr fy[kus cSukekvkils bl jgulqnk ds vykok :i;s ugha ywaxk-**
The plaintiff, considering that his right to redeem subsists, despite execution ofagreement to sell, instituted a suit for redemption. The defendant inter alia pleaded that he had become the owner of the land in question in view of the agreement to sell dated 13-8-1962 and the suit for redemption is not maintainable. A plea of jurisdiction was also raised and it was alleged that the suit is not triable by the civil Court, but is triable by the revenue court. The learned Munsif framed the necessary issues. Issue No. 1 related to the non-maintainability of the suit on the ground of the execution of the agreement to sell and issue No. 2 related to jurisdiction. The learned Munsif decided issue No. 1 in favour of the defendant and issue No. 2 against the defendant. He hold that the suit is triable by the civil court, but in issue No. 2 he found that the suit is not maintainable in view of the fact that the plaintiff entered into an agreement to sell and the defendant is in possession of the land in question in part performance of the contract and had done an act in furtherance of the contract. Against the decree of dismissal the plaintiff preferred an appeal, which was heard by the Additional Civil Judge, Partapgarh, The learned Additional Civil Judge, dismissed the appeal upholding the defendant's plea of non-maintainability of suit. It appears that nothing was canvassed before the learned Additional Civil Judge with regard to issue No. 2. Dissatisfied with the judgment and decree, the plaintiff has preferred this appeal.
3. I have heard Shri R.C. Maheshwari, learned counsel for the plaintiff-appellant and Shri A.M. Singhvi, learned counsel for the defendant-respondent.
4. In this appeal Shri Maheshwari, learned counsel for the plaintiff-appellant, urged that the plea of pan performance of the contract arising under Section 53A of the T. P. Act is not tenable as the defendant has failed to prove that he did any act in furtherance of the contract Unless this requirement is fulfilled, which is essential for the application of Section 53A, the plaintiff's right to redeem would not be extinguished. Reliance has been placed by Shri Maheshwari on the S. B. Decision of the Madhya Bharat High Court in Kukaji v. Basantilal (AIR 1955 Madh Bha 93). In that case on facts, it has been found that the party pleading part performance, has failed to prove any act in furtherance of the contract and so it was held that he cannot claim the benefit of the doctrine of part performance. In that case a house property was mortgaged with possession and subsequently the mortgagor sold the house property to the mortgagee in consideration of the mortgage debt and the amount spent by the mortgagor on repairs and improvements of the house. The sale deed was not registered. Subsequently the mortgagor sold the same property to a third person under a registered sale deed. The third person sued the mortgagee for redemption. The mortgagee relied on the equitable doctrine of part performance in defence. His plea was negatived on the ground that he failed to prove an act in furtherance of the contract. It was observed in that case that the execution of the deed itself or the terms thereof are no proof of any act done by the mortgagee in furtherance of the contract. It was also observed that not only he must show that he continued in possession of the mortgage property in part performance of the contract, but he should also show that he did some act in furtherance of the contract. Relying on this authority Shri Maheshwari submitted that in the present case as well the defendant has failed to prove any act in furtherance of the contract, so the plea of part performance of the contract under Section 53A should not be made available to him. In support of his view Shri Maheshwari also referred to a Division Bench decision of the Madhya Pradesh High Court in Devisahai Premraj Mahajan v. Govindrao Balwantrao (AIR 1965 Madh Pra 275), wherein the view taken in Kukaji's case (supra) has been approved, though on facts the case has been distinguished. In Devisahai's case (supra) there was a term of the contract that the first respondent should bear the expenses of the sale deed, and he requested the appellant to advance the amount of Rupees 1,000/- to meet those expenses. It was observed that this advance was made at the request of the first respondent, and cannot be considered to be a voluntary act on the part of the appellant. This payment was undoubtedly in pursuance of the terms of the contract, as it was the first respondent, who was liable to bear the expenses. Thus, on facts it was found that the requirements of second clause of Section 53A of the T. P. Act are fulfilled. Consequently, the appellant's claim based on the doctrine of part performance was not negatived on the assumption of non-compliance with the requirements of the second clause.
5. Shri A.M. Singhvi, learned counsel for the respondent, on the other hand urged that the plaintiff having entered Into an agreement to sell his land for a sum of Rs. 700/-, executed the agreement clearly stipulating that the sale deed will be executed within a period of one year and will not accept or demand any money over and above the mortgage money. Possession was also already delivered by the plaintiff under the mortgage deed and after execution of the agreement, the defendant continued to remain in possession. Thus the nature of possession of the defendant changed from that of the mortgagee to that of a vendee under an agreement to sell. It is implicit in the agreement that the defendant adjusted the mortgage money to be the sale price. Shri Singhvi submitted that it would have been an empty formality to have received the money back from the mortgagor-plaintiff and to have repaid the same to the mortgagor by way of sale price, as it would have also been an empty formality to put back the mortgagor in possession of the land and then re-put the defendant in possession of the land. As the character of possession changed, so the character of mortgage debt also changed and that became the sale price. This act of changing the character of the mortgage debt into a sale price, should be considered to be an act in furtherance of the contract. Such a change of character of the mortgage debt is implicit in the agreement and should be treated to be an act on the part of the defendant-mortgagee in furtherance of the contract. No case having direct bearing on the point, has been cited by Shri Singhvi, but he placed reliance on the authority of this Court, wherein the question relating to the plea of the part performance arising under Section 53A of the T. P. Act, has been considered. The first case is Ratanlal v. Kishanlal (1952 Raj LW 414) : (AIR 1952 Raj 141). In that case Pannalal mortgaged the property with the respondents on 11th June, 1920. He agreed to sell the house to the mortgagees for a sum of Rs. 455/-. After adjusting the loan and the interest thereon, he received a sum of Rs. 30/- in cash and agreed to take the balance at the time of the execution of the registered deed of sale. There was a recital in the agreement to the effect, --
'Now I have sold this house, which is under mortgage with you, for Rs. 455/-and a formal deed of sale will be executed in four days'.
Relying on a decision of Oudh High Court in Ewaz Ali v. Mst. Firdous Jehan (AIR 1944 Oudh 212) it was observed that Section 53A does not lay down that the contract must contain a direct covenant regarding transfer of possession. It only requires that the possession should have been taken in part performance of the contract for transfer, and some act should have been done by the transferee in furtherance of it Bapna, J., observed that the transferees were already in possession as mortgagees and nothing further was required to convey an absolute title except the execution of the deed of sale and the receipt of consideration. As regards some act to be done in furtherance of the contract, it was observed that something had been done by the transferees by paying Rs. 30/- to the transferor and the transferor had mentioned in the deed that he was making the sale by executing that agreement of sale. This case has been followed by this Court in subsequent decisions, namely, Mangilal v. Gendmal ILR (1957) 7 Raj 101, and Vithaldas v. Mohanlal (1967 Raj LW 413).
6. Shri Maheshwari, learned counsel for the appellant, submitted that in all the Rajasthan cases some payment of consideration, has been made, which has been treated to be an act in furtherance of the contract. In the present case there has been no such payment and so no act has been performed by the defendant in furtherance of the contract. Ex facie there appears to be some plausibility in this submission of Shri Maheshwari. But when by the act of the parties the nature of possession can be changed, as has been observed in Mst. Mule v. Gokul (ILR (1958) 8 Raj 839), then by an act of the parties, the nature of debt can also be converted from mortgage debt to sale price and it can be considered to be an act in furtherance of the contract. The defendant-mortgagee agreed and acted to convert his mortgage money into the sale price. In Ratanlal's case (AIR 1952 Raj 141) (supra) there was no further payment of consideration beyond what was incorporated in the agreement, so in the present case as well the agreement embodies a term whereby the total price of the land is paid to the mortgagor vendor by way of adjustment or appropriation. This formed part of the consideration of the agreement and this consideration can be taken to have actually passed at the time of entering into an agreement to sell. It may be stated that the matter does not appear to have been canvassed in this manner before the Madhya Bharat High Court and so it was not considered that such an act of conversion or appropriation of the mortgage money into the sale price, can be considered to be an act in furtherance of the contract by the vendee.
7. In Somireddy Veeraiah v. Nagabandi Ranganaikulu ((1967) 2 Andh WR 2), agreement to sell Ex. A-19 reduced into writing a previous oral agreement. In pursuance of the oral agreement, vendee paid Rs. 5,200/- in instalments. The agreement Ex. A-19 recited that the vendors have already received Rupees 5,200/- in instalments and the balance of Rs. 800/- will be received in cash before the Registrar. It was, observed that, --
'In any case, where the amount previously paid is appropriated towards part payment of consideration of the agreement to sell, it would be an act in furtherance of the contract. It is true that the acts done in part performance must be such as could be done with no other view or design than to perform the agreement. But the part payment of consideration is, in my judgment, unequivocal and in its nature referable only to the contract to sell. It is nobody's case that the payment of the part consideration as is mentioned in the agreement is referable to any other contract. The agreement clearly states that the vendors have already received Rs. 5,200/- in instalments and that the balance of Rs. 800/- will be received in cash before the Registrar. I am therefore satisfied that in this case where the purchaser was already in possession of the property as a mortgagee and then continued in possession after the agreement to sell had been 'concluded and a portion of amount was paid, such payment was an unequivocal act which could not be referred to any other matter than the agreement to sell and as such it was sufficient to satisfy the requirement of Section 53A, viz., that some act must be done in furtherance of the contract.'
8. Thus in the above case, appropriation of the amount paid prior to the agreement has been held to be an act in furtherance of the contract.
9. In Ananthoth Gopalan v. Eram Veettil Kanaran (AIR 1953 Mad 925), the defendant 2 put the defendant 1 in possession of the properties under an oral lease in May 1943. The defendant No. 2 executed a Kanom Kuzhikanam Ex. D. 1 in favour of defendant No. 1 on 30-6-1944, which referred to the oral demise of 9-5-1943 and it was also admitted receipt of the Kanom amount of Re. 1/- and demise fee of Rs. 125/- and proceeded to confer Kanom Kuzhikanom right for a period of 12 years, but Ex. D. 1 was not registered. On 24-7-1944, defendant No. 2 executed a registered Kanom Kuzhikanom deed in favour of the plaintiff (Ex. P.1), on the strength of which the plaintiff sued to recover possession of the suit property. In para 5 of the report it was observed as under:--
'In this particular case, there can be no doubt whatsoever as to why the sum of Rs. 125/- was paid. The document Ex. D.1 expressly states that the demise fee of Rs. 125/- has been recovered in respect of the document and there is oral evidence, which was accepted by the Courts below, that the first defendant told the plaintiff and his father that money had already been paid under the document. That seems to be sufficient compliance with the requirements of Section 53A, T. P. Act and I am not prepared to say that no payment of money can be treated as an act in furtherance of the contract.'
In this particular case from the recital, extracted above, it is crystal clear that the land has been sold to the mortgagee for the same amount of Rs. 700/- and the mortgagor agreed to get the sale deed registered after the expiry of one year. The writing is unequivocal to constitute a transfer and there has been appropriation of the mortgage money as sale consideration. Such an act of appropriation would undoubtedly be an act in furtherance of the contract. Thus, to my mind, there does not appear to be any force in the submission of Mr. Maheshwari that the requirements of para 2 of Section 53A are not fulfilled in the present case and that the plea of part performance of contract is not available to the defendant-respondent.
10. In the above view of the matter, I need not go into the question of jurisdiction, as the appeal has no merits.
11. In the result, this appeal fails and it is hereby dismissed. In the circumstances of the case, the parties shall bear their own costs of this appeal.