1. This is a second appeal by the plaintiffs in a suit for redemption. The appellant sued the respondents On 11th March, 1947, lor redemption of certain property situat-ed in the town of Partapgarh, and described in the plaint, on the allegations that their father Pannalal mortgaged the property with the respondents on llth June 1920 for securing a loan of Rs. 151/- but that the defendants had declined to redeem the mortgage. The respondents pleaded that a further charge was created by Pannalal on 14th- December 1922 for a sum of Rs. 95/- and thereafter on 26th December1923, Pannalal agreed to sell the house to the mortgagees for a sum of Rs. 455/-, & that after adjusting the loan and the interest thereon he took some cash and agreed to take the balance on executing a registered deed of sale four days later. It was further pleaded that after the death of Pannalal, a deed was executed by one Punamchand as guardian of the plaintiffs, who were then minors, on 11th January1924.
The trial Court held that the sale-deed of 11th January was by a person who was not competent to execute the deed of transfer. The Court did not rely on the agreement of sale dated 26th December 1923 and decreed the suit in favour of the plaintiffs subject to payment of Rs 276/-. On appeal by the defendants, the learned District Judge held that the agreement of 26th December 1923, allowed the defendants the benefit of the doctrine of part-performance, and dismissed the suit.
2. In this second appeal, it was argued that it was necessary under the terms of Section 53A of the Transfer of Property Act that possession should have been delivered to the mortgagees under the deed, and reliance was placed on the following words occurring in the section.
'and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, of the transfree, being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract.'
It was contended that the mortgagees though already in possession have not been shown to have continued in possession in part performance of the contract as no words in the contract to show that possession after that date would be in pursuance of the agreement of sale. According to the terms of the agreement of sale, the mortgagor Pannalal calculated the principal and interest on the mortgage and the charge to amount to Rs. 262/14/6 and it was mentioned that the sale was being effected for Rs. 455/- and that out of the unpaid amount of Rs. 192/1/6, he was receiving Rs. 30/- in cash and the balance would be taken by him on execution of the sale deed. As the mortgagees were already in possession of the property nothing was required further in the present case than to execute a deed of sale. In the document, there are words to indicate that the parties only considered the execution of the deed and its registration as a formal matter and were it not for the Law of Stamps and Registration, the parties, so far as they were concerned, were quite prepared to take this agreement as a complete sale. The words which occur soon after the mention of the factthat the mortgagor had agreed to transfer the property for Rs. 455/- are:
'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.'
There is also mention that the transferor had received Rs. 30/- out of the balance of the consideration of Rs. 192/1/6. Learned counsel for the appellant relied on 'SUBBRAO v. MATTA-PALLI', AIR 1950 FC 1 in support of his contention that the mortgagor should appear to have transferred possession under the agreement of sale. That case is easily distinguishable because it was admitted by the parties in that case that the mortgagees had never been in possession. It has been held in 'EWAZ ALI v. MT. FIRDOUS JEHAN', AIR 1944 Oudh 212 that S, 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. In the present case, the transferees were already in possession as mortgagees and, as stated above, nothing further was required to convey an absolute title except the execution of the deed of sale and the receipt of consideration. Something had I been done by the transferees in this case by paying Rs. 30/- to the transferor and the trans-feror had mentioned in the deed that he was making the sale by executing that agreement of sale.
3. The lower Court has taken a correctview of the case. Therefore, this appeal failsand is hereby dismissed with costs.