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PETITIONER: SARDAR GOVINDRAO MAHADIK & ANR.

       Vs.

RESPONDENT: DEVI SAHAI & ORS.

DATE OF JUDGMENT15/12/1981

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA, R.B. (J)

CITATION:  1982 AIR  989            1982 SCR  (2) 186  1982 SCC  (1) 237        1982 SCALE  (1)191  CITATOR INFO :  E&R        1990 SC1828  (9)  RF         1992 SC 385  (7)

ACT:      Transfer of Property Act, Section 53A-Scope of

HEADNOTE:      The appellant  mortgagor took  a loan by mortgaging his house property to the respondent mortgagee. The mortgage was a mortgage  with  possession.  According  to  the  mortgagee sometime  thereafter   the  mortgagor  agreed  to  sell  the property  to   him  and  that  pursuant  to  this  agreement requisite stamps  were purchased  and a  draft sale deed was drawn up. The sale deed was however not registered.      A few  days later  the mortgagor  sold the  property to another  person   and  the   mortgagor  and  the  subsequent purchaser filed  a suit  against the  mortgagee for a decree for redemption.      In the  written statement  the mortgagee  claimed  that even though  the sale  deed was not registered, since he was in possession  of the  property in  part performance  of the contract of  sale and  continued to be in possession and did several acts attributable to the contract, the mortgagor was debarred from  enforcing any right against him in respect of the property.  It was  also claimed that since the mortgagor himself had  no subsisting title to the property on the date of sale,  he could  not have transferred the property to the subsequent purchaser.      The trial  court held  that though  the sale  deed  was executed but  since it was not registered the transaction of sale was  not complete.  The Court further held that benefit of section  53 A is not available to the mortgagor defendant because the  mortgage  being  a  mortgage  with  possession, continued possession  of the  mortgagee after  the  date  of contract would  not be  in part performance of the contract, and also the payment made for the purchase of stamps and for expenses  of  registration  could  not  be  said  to  be  in furtherance of  the contract  because that  amount was  paid before the execution of the contract.      In the  mortgagee’s appeal  the High Court held that he was entitled  to the  benefit of  section  53A  against  the mortgagor and  the subsequent  purchaser for the reason that

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he was  in possession  of the  property and paid Rs. 1000 in furtherance of the contract.      The appellant  in Civil Appeal No. 1145 of 1969 filed a suit against  the mortgagor  for recovery  of a debt owed to him and obtained attachment of the 187 suit property  before judgment. The suit eventually ended in a decree  in his favour, In the auction of the suit property since there  were no  bidders the  decree holder’s  bid  was accepted with the permission of the Court.      The  High   Court  allowed  the  decree  holder  to  be impleaded as  a respondent  in the  mortgagee’s appeal which was then pending in the High Court.      It was  contended on  behalf  the  mortgagor  that  the decree holder  could not maintain an application under order XXII, Rule  10 of  the Code  of Civil  Procedure because  he could not  be said to be claiming under the mortgagor. (Rule 10 of  order XXII CPC provides for continuance of any action by or  against a  person who acquires any interest either by assignment, creation  or devolution  during the  pendency of the suit with the leave of the Court.) ^      HELD: To  qualify for the protection of the doctrine of part performance  it must  be shown that there is a contract to transfer  immovable property  for consideration  and  the contract is  evidenced by  a writing  signed by  the  person sought to  be bound by it and from which the terms necessary to  constitute   the  transfer   can  be   ascertained  with reasonable    certainty.     After    establishing     these circumstances, it  must be  further shown  that a transferee had  in  part  performance  of  the  contract  either  taken possession of  the property  or  any  part  thereof  or  the transferee  being   already  in   possession,  continued  in possession in  part performance of the contract and had done some act in furtherance of the contract. The acts claimed to be in  part performance  must be  unequivocally referable to the pre-existing  contract and  the acts of part performance must unequivocally  point in  the direction of the existence of contract  and evidencing implementation or performance of contract. There  must be  a real  nexus between the contract and the  acts done  in  pursuance  of  the  contract  or  in furtherance  of  the  contract  and  must  be  unequivocally referable to  the contract.  When series of acts are done in part performance  one such  may be payment of consideration. Any one act by itself may or may not be of such a conclusive nature as  to conclude  the point  one way  or the other but when  taken  with  many  others,  payment  or  part  of  the consideration or  the whole of the consideration may as well be shown to be in furtherance of the contract. [209 D-H]      The view  of the House of Lords that one must not first look at  the oral  contract and then see whether the alleged acts of part performance are consistent with it but that one must look  at the  alleged acts  of part performance and see whether they  prove that there must have been a contract and that it  is only  if they  do so prove that one can bring in the oral  contract may  not  be  wholly  applicable  to  the situation in India because an oral contract is not envisaged by section  53A. Even for invoking the equitable doctrine of part performance  there has to be a contract in writing from which the  terms necessary to constitute the transfer can be ascertained with  reasonable  certainty.  The  correct  view would be  to look  at that  writing that  is  offered  as  a contract for  transfer for  consideration of  any  immovable property, examine  the  acts  said  to  have  been  done  in furtherance of  the contract  and find out wether there is a

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real nexus  between the  contract 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 contract, backs out and pleads non-registration as defence. [210A-D]      Foxcroft v.  Lester, 2 Vern. P. 456; Elizabeth Meddison v. John  Alderson, Lord  Selborne (1882-1183)  8  A.C.  467; Clinan & Anr. v. Cooke & Ors. 1775-1802 188 All. E.R. (Reprint) 16; Chapronierse v. Lambert 1916-17 All. E.R. (Reprint) 1889; Steadman v. Steadman [1974] 2 All. E.R. 977, referred to.      In short,  acts preliminary  to the  contract would  be hardly of  any assistance  in ascertaining whether they were in furtherance of the contract. Anything done in furtherance of the contract postulates the pre-existing contract and the acts  done  in  furtherance  thereof.  Therefore,  the  acts anterior to the contract or merely identical to the contract would hardly  provide any  evidence of part performance [210 E]      Although the mortgagee’s claim regarding payment of Rs. 1000 to  the mortgagor  for the  purchase of  stamps and for expenses incidential  to registration  was not  in  dispute, there is  no evidence  on record  to show  that there was an oral contract  anterior to  the unregistered  sale deed, nor was there  a draft  agreement prior to the drawing up of the sale deed.  Out of  the sum of Rs. 1000 a sum of Rs. 700 was paid prior to the agreement. It was not subsequently claimed that the  balance of  Rs. 300 was paid in furtherance of the contract.      The High  Court was  in error  in holding  that the act envisaged by  the phrase  "in furtherance  of the  contract" should be  in pursuance  of the  contract and  not  that  it should  either  precede  or  follow  the  agreement  or  the contract. If  a written  contract is  a sine qua non for the application of  the equitable  doctrine of  part performance any act preceding the contract could never be in furtherance of that  contract which was yet to materialise. Negotiations for a  contract and  a concluded  contract stand  apart from each other.  Anything at  the negotiating  stage  cannot  be claimed as  a contract  unless  the  contract  is  concluded between the  parties, that  is the  parties are ad idem. The contract  should  be  a  written  contract  from  which  the necessary ingredients  constituting the  transfer  could  be ascertained with reasonable certainty. [203 A-B]      There is  no material  on record  to  substantiate  the mortgagee’s  claim  that  out  of  the  total  consideration payable to the mortgagor he had retained in deposit with him a sum  of Rs. 17000 odd for being paid to other creditors of the mortgagee  and that  out of this amount a sum of Rs. 541 due to  him  had  been  adjusted.  Assuming  that  he  could reimburse himself  there is no evidence to show that he gave discharge or  gave credit  in his  books of  account to this sum. Also there is nothing to show that the mortgagor had in his possession a list of the mortgagees creditors or that he had made any attempt to procure the list or that he issued a public notice  inviting the  creditors of  the mortgagor  to claim payment  from him  to the  extent of the consideration retained by  him. Neither did he pay any creditor nor did he make any  attempt to  pay any creditor including those whose names were known to him. [211 G]      Induction into  possession of an immovable property for the first  time subsequent  to  the  contract  touching  the property, may  be decisive  of the plea of part performance.

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But mere  possession ceases  to be  of assistance  when  the person claiming  benefit of  part performance  is already in possession prior  to the  contract and  continues to  retain possession.  There   is  an  understandable  and  noteworthy difference  in   the  probative   value  of   entering  into possession for  the first  time and continuing in possession coupled with  a claim of change in character. Where a person claiming benefit  of part  performance  of  a  contract  was already in posses- 189 sion prior to the contract, the Court would expect something independent of  the mere retention of possession to evidence part performance.  Mere retention of possession, quite legal and valid,  if mortgage  with possession  is not discharged, could hardly  be said  to be  an  act  in  part  performance unequivocally referable  to the  contract of sale. [213 D-E, 215 E-F]      In the  instant case  retention of  possession is of no consequence because  the mortgage was not 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 the subsequent purchaser by the mortgagor would show that he was  not willing to accept the contract as offered by the mortgagor. The  subsequent purchaser had taken a conditional sale and  this reinforces  the stand  of the  mortgagor. The existence  of   the  dispute,   about  the   nature  of  the transaction, is not in dispute. Therefore the conduct of the mortgagor is consistent with his case. [217 D-F]      The mortgagee  had failed  to prove that he did any act in furtherance  of  the  contract,  continued  retention  of possession being  a circumstance of neutral character in the facts and  circumstances of  the case  and it  being further established that  the mortgagee  was not  willing to perform his part  of the contract, he is not entitled to the benefit of the equitable doctrine of part performance. [217 H]      (2) A  perusal at  the chronological events of the case would clearly  show that  the decree  holder had more than a mere semblance  of title.  Even if the application would not fall under  order 22  Rule 10  CPC. section  146 of the Code enables him  to maintain  the application.  Smt. Saila  Bala Desai v.  Smt. Numala  Sundari  Dassi  and  another,  [1958] S.C.R. 1287 at 1291, referred to. [221-D-E]      The decree  holder  did  not  acquire  under  the  sale certificate the  equity of  redemption of  the mortgage. The suit property  was sold  subject to  subsisting mortgage  in favour of  the mortgagee. At a Court auction what is sold is right, title and interest of the judgment debtor who in this case was  the mortgagor.  Subject to  other conditions,  his right is  the right  to redeem the mortgage. Much before the proclamation of  sale was  issued the  equity of  redemption held by  the mortgagor  was sold  by him  to the  subsequent purchaser. Therefore,  even on the date of decree as also on the  date   of  filing  of  the  execution  application  the mortgagor had  no subsisting  interest in the property which could be sold at the Court auction. [222 A-B]      The object  behind  the  order  levying  an  attachment before judgment  is to  give an  assurance to  the plaintiff that his  decree, if  made, would  be  satisfied.  Where  an attachment has  been made,  any private transfer or delivery of the property attached would be void as against all claims enforceable  under   the   attachment.   What   is   claimed enforceable is  claim  for  which  the  decree  is  made.  A dismissal of the suit may terminate the attachment and would not be  revived even if the suit is restored As a corollary,

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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 fall. It at an intermediate stage pursuant to the decree of the trial Court the attached property is  sold at  a Court auction and where an appeal is preferred, an  attempt should  be made to obtain stay of the execution of the decree of the trial court. If the execution proceeds and the property is 190 sold at  a court  auction before  the appeal is disposed of, the equity  in favour of a person as a auction purchaser may come into existence. In such a case if the auction purchaser is an  outsider and  if the  execution of the decree was not stayed, the auction purchaser would be protected even if the decree in  execution of which the auction sale had been held is set  aside because  the equity  in favour of the stranger should be protected. [223 C-E]      If on  the other  hand the  auction  purchaser  is  the decree holder  himself, he  should not  be entitled  to  any protection because  when he  proceeds with  the execution he was aware  that an  appeal against  the original  decree was pending and  that if the appeal was allowed the decree which he sought  to execute might be set aside. He could force the place by  executing the  decree,  taking  advantage  of  the economic disability of the judgment debtor in a money decree by making  the situation  irreversible. Therefore, where the auction purchaser  was none other than the decree holder who purchased the  property for a meagre sum, this results in an atrocious situation,  but yet  by a technicality he wants to protect himself.  To such an auction purchaser, who is not a stranger and  who is  none other than the decree holder, the Court should not lend its assistance. [224 G-H]      Janak Raj v. Gurdial Singh & Anr. [1967] 2 S.C.R. 77 at 86, followed.      In the instant case the High Court was right in holding that the  auction purchaser  decree holder  was entitled  to recover only  the decretal  amount and  proportionate costs. [225 D]      But yet  the conduct  of the  mortgagor, the subsequent purchaser and  the mortgagee  in not paying a small debt and allowing the property to be auctioned and forcing the decree holder to  fight a never ending litigation was iniquitous in the facts  and  circumstances  of  this  case.  Taking  into consideration the  conduct of  the parties the decree holder should be  paid a  sum of  Rs. 7,000  inclusive of  decretal amount,  interest,   proportionate  costs   and   costs   of litigation so far. [225 E-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 1144- 1145 of 1969.      From the  judgment and decree dated the 5th March, 1964 of the Madhya Pradesh High Court in First Appeal No. 14 of      S.S. Ray,  G.S. Solanki,  S. Kachwah  and K.J. John for the Appellant  in C.A. 1144/69 and for Respondent Nos. 2 and 3 in C.A. 1145/69.      G. L.  Sanghi. A.G. Ratnaparkhi and K.K. Gupta, for the Appellant in  C.A. 1145/69  and for Respondent No. 2 in C.A. 1144 of 1969. 191      V.S. Desai  and Dr.  Y.S. Chitale. Rameshwar Nath, K.A. Chitale and  Mrs. S.  Ramachandran for  Respondent No.  1 in both the Appeals.

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    The Judgment of the Court was delivered by      DESAI, J.  . What  constitutes 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 common certificate.      Facts first Sardar Govindrao Mahadik original plaintiff 1 (now  deceased prosecuting these appeals through his legal representatives)  and   Gyarsilal   original   plaintiff   2 (appellant 2) filed Civil Suit No. 14151 in the Court of the District Judge,  Indore, for  redemption of  a  mortgage  in respect of  house No.  41  more  particularly  described  in plaint paragraph  1, dated  February 22, 1951. A loan of Rs. 10,000  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  not  a usufructuory mortgage  but an anomalous 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 notice dated October 5,  1945, calling  upon the mortgagee to render true and full  account of the mortgage transaction. The mortgagee failed to  comply with  the notice.  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. 50,000. Account of the mortgage transaction was made and the consideration of 192 Rs. 50,000  for the  sale of the house which would mean sale of equity of redemption was worked out as under: Rs. 25,000        Principal mortgage  money plus  the amount                found due  as interest  on taking accounts of                mortgage. Rs. 17,735      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. 1,000         Taken in advance for purchasing stamps and                incurring registration expenses. Rs. 6,265          To  be  paid  in  cash  at  the  time  of                registration before the Sub-Registrar. ---------- Rs. 50,000 ---------- 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.  50,000 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

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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 not been  registered would  not clothe  the  mortgagee  with title of  owner to  the mortgaged  property,  yet  he  could defend his possession as transferee owner under the doctrine of part  performance in as much as not only is the mortgagee in possession  in part  performance of  the contract of sale but has continued in possession in part perfor- 193 mance  of   the  contract   and  has   done   several   acts unequivocally referable  or attributable to the contract and that the  mortgage as  transferee has not only performed but is  willing  to  perform  his  part  of  the  contract  and, therefore, the  mortgagor is debarred from enforcing against the  mortgagee   any  right  in  respect  of  the  mortgaged property. As  a necessary  corollary, it  was also contended that plaintiff 2 has acquired no right, 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  no subsisting  title  to  the property on  the date  of  the  sale  which  he  could  have transferred to the 2nd plaintiff.      Arising from  the pleadings of the parties, trial court framed five  issues. The  trial court  held that plaintiff I executed a  sale deed of the mortgaged property in favour of the defendant  mortgagee  but  as  the  sale  deed  was  not registered the  transaction of  sale is riot complete on the issue of  protection of section 53A claimed by the defendant mortgagee the trial court held against him. It was held that the  mortgage  being  mortgage  with  possession,  continued possession of  the mortgagee  after the date of the contract dated October  10, 1950, would not be in part performance of the con  tract. The trial court further held that no payment was made could remotely be said to be in part performance of the contract.  With regard  to the  payment of Rs. 1,000 for purchase of stamps and expenses of registration, it was held that the same was paid before the execution of the contract, and therefore, could not be said to be in furtherance of the contract. On  these  findings  the  trial  court  held  that section 53A  of the  Act was  not attracted and the mortgage was accordingly  held to  be subsisting  and  a  preliminary decree for  taking accounts  was passed.  A Commissioner was appointed for taking accounts.      Defendant mortgagee  Devi Sahai  preferred Civil  First Appeal No.  14/66 to  the Indore Bench of the Madhya Pradesh High Court.  When this appeal was pending, appellant Motilal in cognate Civil No 1145/69 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 contest the rights of the plaintiffs as  well as  of the  mortgagee defendant to claim any right, title or interest in the 194 property. In  his application  Motilal alleged  that he  had filed Civil  Suit  No.  243/47  dated  November  3,1947  for recovering  a  certain  amount  against  the  1st  plaintiff mortgagor and  had secured attachment before judgment of the mortgaged property on November 6, 1947. His suit was decreed

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to the  extent of  Rs. 2500  by the  trial court.  He  filed execution application  No. 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  court 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 No. 78/53 in  the High Court and by its judgment dated September 4, 1958,  Motilal’s claim to the tune of Rs. 500 against the Ist plaintiff  mortgagor along  with proportionate  interest and costs  was decreed. The application of Motilal for being impleaded as  a party  was contested  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 contentions advanced on his behalf on merits.      The only  contention canvassed  by the mortgagee in his appeal in  the High  Court was  that he  is entitled  to the protection conferred  by Section 53A of the Act. In order to attract section  53A it was urged that Rs. 1,000 advanced to mortgagor for  purchase of stamps etc. was in furtherance of the contract.  The only  such act pleaded was payment of Rs. 1,000 and  no other act or circumstance was relied upon. The High Court  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 continued to be in possession and paid Rs. 1,000  in furtherance  of the contract. While so holding the High  Court imposed  a condition that the mortgagee must pay or  deposit in  the court  an amount  of Rs. 24,000 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 not  paid by  the mortgagee. The deposit was  directed to  be made  in the trial court within three months from the date of the judgment of the High Court for payment to the 2nd respondent which would enable 195 the  mortgagee   to  retain   possession  of  the  mortgaged property. The  High Court  gave a  further direction that if the payment  or deposit  as directed in the judgment was not made, the  appeal of the mortgagee would stand dismissed and if the amount directed in the judgment of the High Court was paid or  deposited in  the trial court 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 Motilal’s  claim the High Court 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 Court did not award costs to either side.      Both the  original plaintiffs and Motilal made separate applications for  certificate under  Article 133 (l) (a) and (b) of  the Constitution 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

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to non-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 consideration of Rs. 50,000 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.   1,000  being  part  of  the  consideration  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 constitutes 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  confusing mass  of legal  squabble and,  proceed to analyse the  contents of section 53A, subsequently referring to legislative cum legal history so far as it is 196 relevant for  interpretation of  the  section.  Section  53A reads as under:           "53A. Where  any person  contracts to transfer for      consideration any  immovable property by writing signed      by him  or on his behalf from which the terms necessary      to constitute  the transfer  can  be  ascertained  with      reasonable certainty,  and the  transferee has, in part      performance of  the contract,  taken possession  of the      property or  any part there of, or the transferee being      already in  possession continues  in possession in part      performance of  the contract  and has  done some act in      furtherance of  the contract  and  the  transferee  has      performed or  is willing  to perform  his part  of  the      contract.           then, not  withstanding that  the contract, though      required to be registered, has not been registered, or,      where there  is an  instrument of  transfer,  that  the      transfer  has   not  been   completed  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  continues in  possession, other  than a right      expressly provided by the terms of the contract;           Provided that nothing in this section shall affect      the rights of a transferee for consideration who has no      notice of  the contract  or  of  the  part  performance      thereof."      In order to qualify for the protection conferred by the equitable doctrine of part performance as enacted in section 53A, the following facts will have to be established:      (1)  That the transferor has contracted to transfer for           consideration any  immovable property  by  writing           signed by  him or  on his  behalf from  which  the           terms necessary  to constitute the transfer can be           ascertained with reasonable certainty;      (2)  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, 197

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         continues in possession in part performance of the           contract:      (3)     That  the  transferee  has  done  some  act  in           furtherance of the contract: and      (4)   That the  transferee has already or is willing to           perform his  part of  the contract." (see Nathulal           v. Phool Chand. There was no dispute that the aforementioned conditions have to  be   satisfied  to   make  good   the  defence  of  part performance. The  controversy is on their application to the facts of the case.      The High  Court 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. 1,000 for  purchase of  stamps was  an  unequivocal  act  in furtherance of the contract. The defendant mortgagee did not invite the  High Court  to consider  any other act as having been done  by him  under the contract or  furtherance of the contract,  or   unequivocally  referable  to  the  contract. However, when  the matter  was heard in this Court, Mr. V S. Desai,  learned   counsel  appearing   for  the   respondent mortgagee urged  the following  acts as  having been done by the mortgagee  in furtherance  of the  contract which  would constitute part performance;      (a)   payment of  Rs. 1,000  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.  17,735  retained  by  the           mortgagee from the total consideration payable for           discharging other debts;      (c)     mortgagee  agreed  to  discharge  the  mortgage           subsisting  on  the  property  in  his  favour  on           settlement of accounts; 198      (d)   all dues  owed by  the mortgagor to the mortgagee           may have  to be  taken as cleared on completion of           the      (e)   nature and  character of  possession  changed  as           recited in the contract; A few  more circumstances  were relied upon to show that the mortgagee was  willing to  perform his  part of the contract and the  omissions pointed  out are  not fatal  to his case. They are:      (f)   failure to  offer the  amount agreed  to be  paid           before the  Registrar and/or not discharging debts           agreed to  be  discharged  as  having  been  given           credit in the consideration for the sale would not           detract from part performance because they have to           be evaluated in the facts and circumstances of the           case;      (g)     conduct  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 contract in favour of           the  defendant  mortgagee  and  he  was  retaining           possession in furtherance of the contract:      (h)   defendant mortgagee  made all attempts to get the           deed registered by approaching the Sub-Registrar;      (i)     the  defendant   mortgagee  initiated  criminal           proceedings against  the 1st  plaintiff  mortgagor

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         for misusing the stamp papers.      Ordinarily  this   Court  would  be  loath  to  examine contentions  of   facts  based  on  evaluation  of  evidence advanced for  the first  time before  this Court without any attempt at inviting the adjudication of the same by the High Court. However, as all the contentions arise from the record and proceedings,  we propose  to examine them on merits more so because  we do  not propose  to rest  this judgment  on a technical around and also because we are inclined to reverse the decision  of The  High Court  which is  in favour of 1st defendant mortgagee. 199      Section 4  of the  Statute of  Frauds, 1677  of  United Kingdom provided  that no  person shall  be charged upon any contract for  sale of  lands or  any interest  in land  etc. unless the agreement or some memorandum or some note 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 not effect the law relating  to part-performance  or sales by the court. As no action could be brought on oral agreement the doctrine of part performance  was devised  by the  Chancery Court with a view to  mitigating the hardship arising out of an advantage taken by  a person  under an  oral contract  and failure  to enforce it would permit such person to retain the undeserved advantage by  the Equity  Court enforcing  the contract. The situation must  be such  that not to enforce the contract in face of  the defence  of  Statute  of  Frauds  after  taking advantage of  oral contract would perpetuate the fraud which the statute  sought to  prevent The  party who  altered  its position under  the contract  must have  done some act under the contract  and it  would amount  to fraud in the opposite party to  take  advantage  of  the  contract  not  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 Court while granting relief of specific performance wanted  to be  wholly satisfied that the pleaded oral contract  exists  and  is  established  to  its  utmost satisfaction and  in order to ascertain the existence of the oral  contract   before  granting   a  relief   of  specific performance the  court wanted to be satisfied that some such act has  been done which would be unequivocally referable to the oral  contract  as  would  prove  the  existence  beyond suspicion, meaning  part performance  of the  contract.  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 non and simultaneously the statute also insists upon proof of some act having been done in furtherance  of the  contract. The  act  relied  upon  as evidencing part  performance must  be  of  such  nature  and character that  its existence  would establish  the contract and its  implantation. Each  and  every  act  subsequent  to contract by  itself may  not be sufficient to establish part performance. The act must be of such a character as being 200 One unequivocally  referable to the contract and having been per. formed  in performance  of the contract. In Lady Thynne v. Earl  of Glengall it was observed that: "part performance to take  the case  out of  the  Statute  of  Frauds,  always supposes  a  completed  agreement.  There  can  be  no  part

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performance  where   there  is  no  completed  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 contract 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, continued  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 not changed hands, it would be  for the  mortgagee to  show that  he continued  to retain possession  in part  performance of  the contract and has done  some act  in furtherance  of the  contract.  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 contract. He must further establish that he  has done  some act  in furtherance of the contract. This  was   not  disputed   and,  therefore,  the  mortgagee defendant urged  before the High Court and reiterated before us that,  payment  of  Rs.  1,000  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 contract.      Before evaluating  the submission  a few relevant facts may be  noticed. 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 consideration:           ".. It  is requested  that we  have entered into a      contract with  you for  the sale-condition of our house      No. 12  situated in  Kalai Mohalla.  Therefore  to  buy      stamps etc.  for the  sale you  should  pay  Rs.  1,000      (Rupees one thousand 201      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 consideration for the sale deed a credit was given  for Rs.  1,000 paid by the mortgagee for purchase of stamp.  So far there is no dispute. 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 not complete the  transaction and sold the house subsequently on October 14,  1950 to the 2nd plaintiff, under Ext. P-1 which is a conditional sale with a right to repurchase.      It would  thus transpire  that  payment  of  Rs.  1,000 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 not in dispute. What  is in dispute is whether the payment was made

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towards some  contract anterior to the letter Ext. P-3 dated October 9,195,  or it was in pursuance to the contract dated October 10,  1950, as  reflected in  the  unregistered  sale deed. In  this connection  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   not  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 not suggested that there  was any  oral contract  anterior to  the one  as found in  the unregistered  sale deed Ext. D-l. Nor is there any suggestion  of any  draft agreement prior to the drawing up of the sale deed Ext. D-l. What transpires from 202 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  conditional sale with a right of repurchase by the mortgagor  and that  becomes evident from the recital in Ext. P-3, "sale condition" which is contemporaneous evidence having its  intrinsic worth  and  a  stamp  of  truthfulness because at that time no dispute had arisen and the mortgagor was seeking  tc work  out and  implement  the  agreement  by seeking a  loan of  Rs. 1,000 for purchase of stamps and for expenses incidental  to registration  so as  to complete the transaction. But  there was  no written contract. 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 conditional sale to which he  did not  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  contract   from  which   the  terms   necessary  to constitute the  transfer can  be ascertained with reasonable certainty. There  was no concluded contract prior to Ext. D- l. The  only written  contract 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. 1,000 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 not specifically claimed that was payment in furtherance of the contract. In any event, stamps were purchased  prior to the drawing up of Ext. D-l which is the contract  relied upon  for the  purposes of section 53A. And it  must  be  shown  that  the  act  has  been  done  in furtherance of the contract, i.e. subsequent to the contract or  at   best  simultaneously  with  the  contract  but  un- equivocally attributable  or referable  to the  contract. It must follow  that acts  anterior to and done previous to the agreement cannot  be presumed  to be done in pursuance of it and  cannot,  therefore,  be  considered  as  acts  of  part performance (See  Whiteread v. Brockhunt quoted by White and Tudor, leading cases on Equity at p. 416).      The High  Court while evaluating the probative value of the circumstances of payment of Rs. 1,000 started on a wrong premise when  it observed  that the  act  envisaged  by  the phrase in furtherance of the contract" in section 53A should be in  pursuance of  the contract  and not  that  it  should

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either precede or follow the 203 agreement or  the contract.  If a written contract is a sine qua  non  for  seeking  coverage  of  the  umbrella  of  the equitable doctrine of part performance any act preceding the contract could  conceivably never  be in furtherance of that contract which  was yet  to materialise.  Negotiations for a contract and  a concluded  contract stand  apart  from  each other. Anything  at the  negotiating stage cannot be claimed as contract  unless the  contract is  concluded between  the parties, i.e.  the parties are ad idem. Coupled with this is the further requirement that it should be a written contract in that  the contract  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 Court  overlooking the  very  important fact situation  that the  only contract  relied upon  by the mortgagee defendant  was one  contained in  the unregistered sale deed  Ext. D-1  dated October  10, 1950,  committed  an error in  holding that  the payment  of Rs.  1,000 prior  to October 10, 1950 would undoubtedly be an act in pursuance of the contract 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 Court could not 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  no  concluded contract because  the very  letter Ext.  P-3 which  the  Ist plaintiff  mortgagor   sought  a   loan  of  Rs.  1,000  for purchasing the  stamps etc.  was pursuant  to a  conditional sale and  that is  totally  denied  and  repudiated  by  the mortgagee as  shown hereinabove. Accordingly when the amount of Rs.  1,000 was  paid it was the stage of negotiations and not a concluded contract. And when the contract was drawn up as evidenced  by Ext.  D-1 being  the unregistered sale deed dated October  10, 1950,  the  parties  were  not  ad  idem. because the  mortgagor declined  to agree to registration of the sale  deed as  it  was  contrary  to  the  understanding arrived at  between the  parties  though  no  doubt  he  had executed the  sale deed.  The contention  therefore that the amount of  Rs. 1,000 was paid in furtherance of the contract does not bear scrutiny.      However, assuming  that the finding of fact recorded by the High  Court that  the amount  of Rs.  1,000 was  paid in furtherance of  the contract,  is a finding of fact recorded on appreciation  and evaluation  of evidence  and ordinarily not interfered  with  by  this  Court  unless  shown  to  be perverse, the alternative contention that 204 payment of part or even whole of the consideration could not be said to be in furtherance of the contract and, therefore, not sufficient  to constitute  part performance,  may now be examined.      How  far   payment  of   part  or  even  whole  of  the consideration would  constitute part  performance so  as  to take the  case out of section 4 of the Statute of Frauds may now  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  Court of Chancery. Commenting upon section 4 of the Statute of Frauds

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1677, Lord  Redesdale observed  in  Foxcroft  v.  Lester,(l) (quoted in  White &  Tudor’s Leading  cases on  Equity,  8th Edn., p. 413) as under:           "The Statute of Frauds says that no action or suit      shall be  maintained on an agreement relating to lands,      which is  not in  writing, signed  by the  party to  be      charged with  it; and  yet the  Court 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  not applicable  to the  particular      case. It was against conscience 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  consideration  can  be  unequivocally attributed to the contract. At 416 the authors observe :           "Payment of part or even of all the purchase-money      will not  be considered  an act  of part performance to      take 205      a parol contract out of the Statute of Frauds. Nor will      payment of the auction duty."      The  payment   of  a  part  or  even  a  whole  of  the consideration  was  not  treated  unequivocal  act  of  part performance because it was believed that money can be repaid or can be reclaimed and, therefore, it is not an unequivocal act evidencing  an act  in furtherance  of the contract (See Hanbury  &  Maudsley,  Modern  Quity,  10th  Edn.,  p.  37). Similarly, Story’s  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 considerable 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 now  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 not in      either. One ground why part payment is not now 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 compensation."      Equity by  G.M. Keeton  and L.A. Sheridan, 2nd Edn., p. 366 sets  out chronologically  the approach  of the Court 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 not      (in

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206      itself)  unless  connection  is  established  by  parol      testimony indicative of a contract consisting of land."      In Snell’s  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  noted  that payment of  a part of the purchase-money, or even apparently the whole,  is not  sufficient for  part  performance  of  a contract for the sale of land for the payment of money is an equivocal act  (not in  itself),  until  the  connection  is established by  parol testimony,  indicative of  a  contract concerning land.  Maddison v.  Alderson is  relied  upon  in support of this statement.      A few cases to which our attention was drawn may now be referred to.  In Clinan and Anr. v. Cooke and Ors.,(1) Cooke 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  no receipt was given Subsequently Mr. Cooke  refused to perform the agreement and he granted a new term  of lease  to the  defendants who  entered into the same  with   the  knowledge   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 not  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. Cooke. It      has always been considered that the payment of money is      not to be deemed part performance to take a case out of      the statute."      In  Maddison’s   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 not enough, and judges of high authority 207 have said the same even of payment in full. Clinan v. Cooke, (supra) Hughes  v. Morris(1) and Britain v. Rossiter(2) were relied upon in support of this. Again at p. 484 Lord O’Hagan taking  note   of  the  conflict  of  decisions  pertinently observed as under:           "I confess  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,  confessedly  in      pursuance and affirmance of a contract of sale, is not.      As to  some of  the judgments  prompted no  doubt by  a      desire to  defeat fraud  and accomplish  justice, I  am      inclined to concur with the present Master of the Rolls      in Britain  v. Rossiter  (1), when he called them" bold      decisions." It may  be noted  that in  that case  an intestate induced a woman to  serve him  as his  house-keeper without  wages for

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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, not 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 intestate’s death without wages yet  the Court  in its equity jurisdiction declined to hold such  an act  as referable  to any contract and was not 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 not enough. Offer to work without  wages was  treated as  evidencing some payment not enough  to sustain  the plea  of part  performance.  The equity  should  take  such  a  view  of  human  service  and sacrifice is  difficult to  appreciate.  Modern  notions  of equity, fairplay and just approach would stand rudely shaken by the view taken in that case & and quoting the case is not to be interpreted to mean sharing the view. 208      In Chaproniere  v.  Lambert,(1)  the  Court  of  Appeal reinforced the  view which held the field till then that the mere payment  of rent  is not  such part performance to take the case out of the statute and even payment of whole of the purchase money  has been  held not  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      not 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 not  lend its aid if there was an adequate remedy      at law. It was argued that a payment could be recovered      at law,  so there  was no  call for the intervention of      equity. But  the payee  might not 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  not  imply  a  pre-existing      contract, but  is equally  consistent with  many  other      hypotheses. This may be so in many cases, but it is not      so in  all cases.  Oral testimony  may not  be given to      connect the  payment with a contract; but circumstances      established by  admissible evidence (other acts of part      performance, for case, for example, what was said (i.e.      done) in the magistrates’ court in part 209      performance of  the agreement  makes it  plain that the      payment of the 108 was also in part performance of the      agreement and  not a  spontaneous act  of generosity or

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    discharge of  a legal obligation or attributable to any      other hypothesis."      To some  extent, therefore  the  statement  of  law  in Maddison’s case  that it  may be  taken as well settled that payment of  part of  purchase money or even the whole of the consideration is  not sufficient act of part performance can be  taken   to  have   been  shaken  considerably  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   not  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 contract  to transfer for consideration immovable property and the  contract is  evidenced by  a writing  signed by the person sought  to be  bound by r it and from which the terms necessary to constitute 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 contract either 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 and has done some act in furtherance of the contract. The acts claimed to be in  part performance  must be  unequivocally referable to the pre-existing  contract and  the acts of part performance must unequivocally  point in  the direction of the existence of contract  and evidencing implementation or performance of contract. There  must be  a real  nexus between the contract and the  acts done  in  pursuance  of  the  contract  or  in furtherance  of  tho  contract  and  must  be  unequivocally referable to  the contract.  When series of acts are done in part performance,  one such may be payment of consideration. Any one act by itself may or may not be of such a conclusive nature as  to conclude  the point  one way  or the other but when  taken   with  many  others  payment  of  part  of  the consideration or  the whole of the consideration may as well be shown  to be  in furtherance  of  contract.  The  correct approach would be what Lord Reid said in Steadman’s case 210 that one  must not  first took at the oral contract 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 contract and it is only if they do so prove that one  can bring  in the oral contract. This view may not be wholly  applicable to  the situation  in India because an oral contract  is not  envisaged by  section 53A.  Even  for invoking the  equitable doctrine  of part  performance there has to  be a  contract  in  writing  from  which  the  terms necessary to constitute the transfer can be ascertained with reasonable certainty.  Therefore, the  correct view in India would be, look at that writing that is offered as a contract for transfer for consideration of any immovable property and then examine  the acts said to have been done in furtherance of the  contract and  find out whether there is a real nexus between the  contract  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  contract   backs  out   and  pleads   non registration as defence, a defence analogous to section 4 of

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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 contract. Anything done in  furtherance of  the contract  postulates  the  pre- existing contract  and the acts done in furtherance thereof. Therefore, the  acts interior  to  the  contract  or  merely incidental to the contract would hardly provide any evidence of part performance.      The contention  of Mr.  Desai that payment of Rs. 1,000 for purchase  of  stamps  in  an  act  of  part  performance unequivocally attributable to the contract dated October 10, 1950, cannot be accepted for two reasons, one being that Rs. 700 out  of the  amount of  Rs. 1,000 was paid on October 9, 1950, that is prior to the date of contract. Then there is a serious dispute  as to  the nature  of  contract  which  was negotiated on  October 9,  1950, the day on which payment of Rs. 700 was made. Mortgagor was insisting upon a conditional sale  and   defendant  mortgagee   declined  to  accept  the conditional sale and that is borne out by his evidence also. There was  thus no  concluded contract  on October  9, 1950, and, therefore,  the payment  of Rs. 700 out of Rs. 1,000 in any case  could not  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 not be an act of part performance. In 211 our opinion,  therefore, the  High Court recorded an utterly unsustainable  finding   without  minutely   examining   the relevant evidence  coupled with  the requirements of law and erred in  holding that  the payment  of  Rs.  1,000  was  in furtherance of  the contract.  We would also add that in the facts and circumstances of the case payment of Rs. 1,000 was not such  an  act  of  part  performance  which  would  help defendant mortgagee in any manner.      Mr. Desai  next contended that the mortgagee discharged a debt  of Rs.  541 which  was included in the amount of Rs. 17,735  retained   by   the   mortgagee   from   the   total consideration payable  for discharging  other debts and that this payment  was  in  furtherance  of  the  contract.  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 no  sufficient evidence to uphold this contention.  In fact,  the defendant  mortgagee himself has to some extent prevaricated on the question of retention of Rs.  17,735 out  of the  total consideration for the sale transaction agreed  at  Rs.  50,000.  Consideration  of  Rs. 50,000 was  made up,  inter alia, by retaining Rs. 17,735 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, 17,735  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 not stated a word that out of the amount of Rs. 17,735  he paid  Rs. 541  to any particular creditor. In his written  statement he  has stated that the amount of Rs. 17,735 was  kept in deposit for payment to other creditor of the mortgagor. One such creditor was to be paid a sum of Rs. 541. This creditor is none other than the mortgagee himself. This would mean that he himself was creditor to whom he paid Rs. 541.  Assuming that  he could  have reimbursed  himself, there is nothing to show that he gave a discharge or that he

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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 court as well as the High Court and  we find no material evidence to substantiate this contention. The contention, 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 212 subsisting on  the property  in his  favour on settlement of accounts. The  mortgage deed  admittedly was not returned to the mortgagor even after the mortgagor executed Ext. D-1 the sale deed  which was  not ultimately registered. But that is not enough.  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. 1,000 paid to the mortgagor  for purchase of stamps. Could 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  completely belies the claim and demonstrably establishes that  mortgagee never  claimed to regard himself as owner from October 10, 1950 the date of contract but till a later  date continued  to regard  himself as  a  mortgagee with subsisting  mortgage. Mortgagee  made an application on June 23, 1952 nearly two years after the contract of sale in the execution  proceedings filed by Motilal seeking to bring mortgage  property   to  court  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 noted in the  sale proclamation  and thereafter property should be sold. Now  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   conduct  of  mortgagee  is sufficient to  negative this  contention. In  any event mere oral agreement  to discharge a mortgage could hardly be said to be  an act of part performance unless in fact such an act was done  and that could 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 completion  of  the contract Now,  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. 29,000 was found to be due from the mortgagor. If on October 10, 1950, all accounts were made up, how could he continue a mortgage account which mortgage according  to him came to be satisfied when he took the  sale   deed  and   continued  in   possession  in  part performance of  the contract  ? Therefore, the submission is without merits. 213      The  next  act  of  part  performance  pleaded  by  the mortgagee is  that the  nature and  character of  possession changed  as  recited  in  the  contract.  Mortgagee  was  in possession as mortgagee. Now 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

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be liable  to pay  taxes as  owner. There is no overt 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 contract  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  contract  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 contract and continues to retain  possession. However a reference to a statement of law in  Halsbury’s 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 concluded and the possession      is retained  after the conclusion 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 not suffice." If a person claiming benefit of part performance is inducted into possession  for the first time pursuant to the contract it would  be strong  evidence of the contract and possession changing hands  pursuant  to  the  contract.  in  Hedson  v. Heuland (1)  it  was  held  that  although  the  entry  into possession  was   antecedent  to   the  contract,   yet  the subsequent  continuance   in  possession  being,  under  the circumstances,  unequivocally  referable  to  the  contract, constituted a 214 part performance  sufficient to  take the  case out  of  the Statute of Frauds.      In Nathulal’s  case, the fact that Nathulal parted with possession  after   receiving  part   payment  of  the  sale consideration  was   held  sufficient   to  constitute  part performance. This  Court observed  that j,, part performance of contract  Phoolchand has taken possession of the property and  he  had  in  pursuance  thereof  paid  a  part  of  the consideration and  thereby the  first three  conditions  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  could  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 mortgagor’s suit was dismissed. The Court attached  considerable importance  to the provision in the unregistered  agreement for  mutation in  favour of  the mortgagee  as  owner  and  the  subsequent  conduct  of  the mortgagor in  making an application for mutation was held to be the  clearest indication  which is essential for invoking

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the doctrine  of part  performance. The decision can be said to depend  more or less on the facts of the case. However in this connection  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 continued to be in possession in part  performance of  the agreement  which  argument  was repelled by  the Court on the observation that the mortgagee had never  been in possession and the contention that he was always in constructive possession could hardly assist him. 215 In Jahangir  Begum v.  Gulam Ali  Ahmed,(1) the  Court after holding that  the defendant was in possession and had put up a structure  on it,  came to  the conclusion that he was not entitled to  the benefit  of doctrine  of  part  performance because he  was already in possession before the contract 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 contract in order to constitute a  part performance of the contract. 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  consideration of  the mortgage  debt and  the  amount spent by  A on  improvements and  repairs of  the house. The deed was  not  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 Court held that as was already in possession as a  mortgagee, unless  he shows  that he  did some  act in furtherance  of  the  contract,  over  and  above  being  in possession,  mere   continuance  in   possession  would  not constitute part  performance. The  case is  very near to the facts disclosed  in the  case under  discussion. There is an understandable and  noteworthy 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  contract  was  already  in  possession  prior  to  the contract, the  court would  expect something  independent of the  mere   retention  of   possession  to   evidence   part performance. Therefore  mere retention  of possession is not discharged, could  hardly be  said to  be  an  act  in  part performance unequivocally referable to the contract 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 contract. And if it is shown  that he  was not  ready and willing to perform his part of  the contract he will not 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.  17,735  out  of  the  total consideration  of  Rs.  50,000  for  payment  to  the  other creditors of the mortgagor. Barring a 216 claim made in the written statement that he paid himself Rs. 541 which  was included  in the  amount of  Rs. 17,735 which allegation itself  is unconvincing,  there has  not been the slightest attempt on his part to pay up any of the creditors of the  mortgagor. There  is nothing 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 notice inviting  the creditors  of the  mortgagor  to  claim

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payment from him to the extent of the consideration retained by him.  Not a  single creditor has been paid is an admitted position. But  the more  inequitous conduct of the mortgagee is that he had not made the slightest attempt to contact any of the  creditors of  the  mortgagor  or  to  pay  even  the smallest sum.  There is  no such  statement in  the  written statement but  even in  his evidence at the trial he has not 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  known  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. 17,735  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. 17,735 from  total consideration 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 nor other creditors and thereby did not perform his part  of the  contract. He  even did  not  pay  a  small decretal amount  of Rs.  500  plus  interest  and  costs  to Motilal in 1952 but allowed the property to be sold. Coupled with this  is the  fact according to the recital in Ext. D-1 he had  agreed to pay the balance of the consideration of Rs 6265 to  the mortgagor  at the  time of  registration of the sale deed.  Now, undoubtedly  the mortgagor did not 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 complete his title both legally and even in equity  he was  under an obligation to pay Rs 6265 to the mortgagor. This liability is not disputed yet in this behalf he has  not 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 217 even after  October 10,  1950. All  this would  conclusively show A that the mortgagor himself was not willing to perform his part  of the  contract. In  this view  of the matter Mr. Desai’s contention  that failure to pay the amount agreed to be paid  before the  Registrar and/or  not discharging debts agreed to  be discharged  as having been given credit in the consideration for  the sale  would  not  detract  from  part performance because  they have  to be evaluated in the facts and circumstances of the case cannot be upheld.      It was  next contended  on behalf of the mortgagee that the conduct  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 contract  of sale  in favour  of the defendant mortgagee evidence that the Ist plaintiff was aware of the contract in favour of  the defendant  mortgagee  and  he  was  retaining possession in  furtherance of  the contract.  The submission does not  constitute any  independent act  on  the  part  of mortgagee but  it is  merely another  facet of  the fact  of permission  being   retained  by  the  defendant  mortgagee. Retention of  possession is  of no  consequence in this case because the  mortgage was  not discharged and was subsisting and the  mortgage  being  a  mortgage  with  possession  the

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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 contract  as offered  by the  mortgagee.  The subsequent purchaser  Gyarsilal has taken a conditional 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 not in  dispute. Therefore  the conduct  of the mortgagor is consistent with this case.      It was next contended 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 not detain us, as they have no probative value.      Having,  therefore,   examined  all   the   contentions canvassed on behalf of the mortgagee we unhesitatingly reach the conclusion  that the  mortgagee has failed to prove that he did  any act  in furtherance  of the  contract, continued retention of  possession being  a  circumstance  of  neutral character in the facts and circumstances of 218 the  case   and  it   being  further   established  to   our satisfaction that  the mortgagee  was not willing to perform his part  of the contract, it is clear that the mortgagee is not entitled  to the  benefit of  the equitable  doctrine of Part Performance.      On  the   conclusions  hereby   indicated  the   appeal preferred by the plaintiffs (CA 1144/69) must be allowed and the judgment  of the  High Court has to be set aside and the one rendered  by the  trial court  is  restored  with  costs throughout.      That takes us to the second appeal preferred by Motilal being CA  1145/69. First a synopsis of the facts relevant to the dispute raised by appellant Motilal. Motilal filed Civil Suit No. 243/47 on November 3, 1947, for recovering his debt from mortgagor  Govindrao Mahadik.  In this suit he obtained attachment before  judgment of the suit property on November 6, 1947. The suit of Motilal ended in a decree in the amount of Rs. 2,500 on March 15, 1951. On March 27, 1951, execution application No  216 of 1951 was made by Motilal. On April 3, 1951, the  executing court  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, Code of Civil Procedure. The Court 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 comply with the conditional  stay order  and on his failure auction sale was directed  to be held on March 23, 1952. After correcting 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 court to bid at the auction and his bid in the amount of Rs. 300 was accepted and the sale in favour of Motilal was confirmed on September 23, 1952.      In the  mean time mortgagor Govindrao Mahadik the judg- ment debtor  in Motilal’s  suit  filed  Regular  Appeal  No. 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

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Second Appeal  No. 78/53  in the High Court of Madhya Bharat and by  its judgment  dated  September  1,  1958,  Motilal’s appeal was allowed and a decree in 219 his favour  in the  amount of  Rs.  500  with  interest  and proportionate costs was passed.      Motilal made an application on April 2, 1962 purporting to be  under order  XXII, rule  10  of  the  Code  of  Civil Procedure alleging that he came to know 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 cannot now 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  contested on  behalf of  the parties to the suit.      The High  Court  was  not  fully  satisfied  about  the explanation of  delay in  making the  application by Motilal and was  not 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 Court ultimately made on order as under:           "Therefore, although  ordinarily we  might not  be      inclined to  allow Motilal’s request to be impleaded in      this Court  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  not by  allowing him  to  replace  both  the      plaintiffs."      Having thus directed Motilal to be impleaded as a party respondent, the  High Court 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 220 instance of  Motilal by  a sale of the property, Motilal was held disentitled  to costs on account of the delay in filing the application.      Mr.  Ray,   learned  counsel   for  the  Ist  plaintiff mortgagor contended  that the  High Court  was in  error  in allowing the  application of  Motilal to  be impleaded  as a party because according to Mr. Ray Motilal could not be said to be  claiming under  the mortgagor and that, therefore, he could not  maintain the  application under  order XXII, rule 10, Code of Civil Procedure.      Rule 10  of order  XXII, provides for continuance 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  court.  In ascertaining whether  Motilal can  maintain the  application his averments  in the  application will  have to be taken as the basis  for invoking the Court’s jurisdiction under order XXII, rule 10. The question that will have to be posed would

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be whether  Motilal acquired  any  interest  by  assignment, creation or  devolution during  the pendency of the suit and would, therefore, be entitled to continue 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 contends  that the  suit property  was  sold  at  a  court  auction  with  subsisting mortgage thereon  and the  right, title  and interest of the mortgagor was  sold at  the court  auction and  on the  sale being confirmed  and the  sale certificate  being issued  he acquired the  interest either by assignment or devolution of the original  mortgagor. Now  this assertion is controverted on behalf  of the  original  mortgagor  and  the  subsequent purchaser contending  that much  before the  confirmation 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 no subsisting right, title and interest in the suit property on August  23, 1952, being the date of the sale in favour of Motilal. This  was countered  on behalf  of Motilal  by  his learned counsel  Mr. G.L.  Sanghi asserting that Motilal had obtained an  attachment before judgment of the suit property by  order   dated  November  6,  1947,  and  that  this  was subsisting till  March 5, 1951, when the trial court 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  no reattachment  was necessary.  These facts are  incontrovertible but  one aspect of law has to be examined as to what is 221 the effect  of the  judgment of  The appellate  court in the appeal filed  by original  mortgagor Govindrao  Mahadik, the decree obtained  by Motilal,  to wit, the appeal was allowed and Motilal’s  suit was dismissed on March 27, 1953. Between March 27,  1953, till  the High  Court allowed the appeal of Motilal on  September  4,  1958,  there  was  no  subsisting attachment but  it must  be recalled  that by  September 23, 1952, the  sale was  confirmed 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  not 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 chronological  events  as  delineated  hereinabove  would clearly show  that Motilal has more than a mere semblance of title which this Court will have to investigate. And even if stricto sensu  the application  would not  fall under  order XXII, rule  10, CPC,  yet section  146 of  the Code of Civil Procedure would  certainly enable  Motilal to  maintain  the application (See  Smt. Saila  Bala  Desai  v.  Smt.  Nirmala Sundai  Dassai  and  another,  at  1291,  referred  to  with approval in Shew Bux Mohata & Ors. v. Bengal Breweries Ltd & Ors. Undoubtedly  the High  Court was  reluctant to overlook the gross delay in preferring the application but even after this  reluctance   the  High   Court  having   granted   the application, we  would consider  it imprudent  to reject the application on the ground of delay.      Once Motilal  becomes a party, two contentions 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

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mortgagor from  bringing the present action; (b) What is the effect of  the attachment  before judgment secured by him on November 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 222 Sahai, mortgagee.  At a  court 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 conditions, 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 court 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 no  substance in this contention 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 no  subsisting  interest  in  the property which  could be  sold at the court auction. On this short ground  it can  be held  that Motilal  did not acquire under the  sale certificate  equity  of  redemption  of  the mortgagee.      But Mr.  Sanghi, learned  counsel for Motilal contended 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  cover 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 Code of Civil Procedure be void against the attaching creditor.  Proceeding   further  along   this  line  it  was contended that  as a  corollary if  the sale  in  favour  of subsequent purchaser is void against Motilal then the equity of redemption  continued to  remain vested  in the  original mortgagor and  at the  court 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  Court  to  levy attachment before judgment at the instance of a plaintiff if the conditions therein prescribed are satisfied. What is the nature of  attachment levied  in this case is not made known 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, 223 One can  say that  what  was  attached  was  the  equity  of redemption. The  attachment  was  levied  and  continued  to subsist till  the date  of the  decree. It would, therefore, not be necessary to reattach the property.      What is  the effect  of attachment  before  judgment  ? Attachment before  judgment is  levied where the court 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

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about to  remove the  whole or any part of his property from the local  limits of the jurisdiction of the Court. 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  Code  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  contrary  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. Motilal’s suit was for a money claim.  It finally  ended in  a decree  for Rs. 500 by High Court  and in  between  the  1st  appellate  court  had dismissed Motilal’s  suit in  entirety. There  is nothing to show that  the attachment  which would come 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 not 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 not 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  corollary 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  no  difficulty  in reaching this conclusion.      The  question,  however,  is  what  happens  if  at  an intermediate state pursuant to the decree of the trial court the attached pro- 224 perty is  sold at a court 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 court.  However, it  is notorious  that the  appellate court is  loath or reluctant to grant stay of a money decree and the  judgment debtor may not 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 court  auction may  come  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 not stayed of which he may have assured himself by appropriate enquiry, the court auction held and sale confirmed 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  not obtaining stay of the execution of the decree during the pendency of the appeal.

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    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 not  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  cannot  force  the  pace  by executing  the  decree  taking  advantage  of  the  economic 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 none  other than the decree  holder who  by pointing  out that  there  is  no bidder at  the auction,  for a  nominal  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 225 auction purchaser  who is  not a  stranger and  who is  none other than  the decree holder, the court should not lend its assistance. The  view which we are taking is not unknown and to some  extent it  will be borne out by the observations of this Court in Janak Raj v. Gurdial Singh and Anr. This Court 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  not 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 Court 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 costs could be  styled as  manifestly equitable. However the Court cannot overlook  the  conduct  of  the  mortgagor  Govindrao Mahadik, his  subsequent purchaser  Gyarsilal and  even  the original mortgagee Devi Sahai in not 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 costs  the sale  in his favour is of no significance. The  logical course  for us would have been to leave Motilal to his own remedy which we consider inequitous in the  facts and circumstances of this case. The order made by the  High Court  would hardly  provide him  Rs. 1,500  to recover which  he must  have spent  at the  inflated rate of litigation costs.  In our  opinion, while  not granting  the substantial relief  claimed by  Motilal and  looking to  the conduct of all the parties, we direct that Motilal should be paid Rs.  7,500  inclusive  of  decretal  amount,  interest, proportionate costs  and costs of the litigation till today, and for  this amount there will be a charge on this property to be cleared by 226

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Govindro Mahadik  at the  time of redemption of the property which amount  will have  to be paid by Gyarasilal’s heirs in view of the sale-deed in favour of Gyarsilal.      Accordingly,  Civil   Appeal  No.   1144/69  filed   by Govindrao Mahadik  is allowed and the judgment and decree of the High  Court are  set aside  and those of the trial court are restored with costs throughout.      Civil  Appeal  No.  1145/69  preferred  by  Motilal  is disposed  of   in  accordance  with  direction  herein-above indicated with  no order  as to  costs. CMP  9004/80 and CMP 10593/80 for substitution are allowed. P.B.R.                                      Appeals allowed. 227