JUDGMENT
T.L. Viswanatha Iyer, J.
1. This second appeal is by plaintiffs 2 and 3 in a suit for redemption of a mortgage Ext. Al dated February 10,1967. A preliminary decree for redemption was passed by the trial court, but it was set aside, and the suit dismissed, on appeal by the defendant. The facts in brief are as follows.
2. The first plaintiff executed a mortgage Ext. Al on February 10, 1967 to the defendant over the plaint schedule property. The mortgage amount was Rs. 5,000/- repayable within a period of five years. The mortgagee was put in possession of the property and he was to appropriate the yield towards the interest on the mortgage. He was to keep possession till the amount advanced was repaid.
3. The first plaintiff later entered into an agreement Ext. B1 dated Januarys, 1971 with the defendant for sale of the property to him for a consideration of Rs.21,000/-. An amount of Rs. 2,000/- was received by the first plaintiff as advance on that day for deposit in O.S. No. 45 of 1956 on the file of the sub Court, Alapusha. After referring to Ext. Al, and the possession of the defendant thereunder, the agreement stipulated that on the defendant paying an amount of Rs. 14,000/- as the balance consideration, after adjusting the mortgage amount of Rs.5,000/- and the advance of Rs.2,000/-before the expiry of the term of the mortgage, the first plaintiff will execute the deed of sale to be got prepared by the defendant, either in his name or in the name of any nominee of his.
If the first plaintiff committed default in executing the sale, the defendant was at liberty to take proceedings for getting the deed of sale executed (the expenses of which will be reimbursed to him by the first plaintiff out of the balance amount of Rs. 14,000/-due to him). The defendant was thereafter to continue in possession as owner in continuation of his present possession. If, on the other hand, the defendant defaulted in making payment of the balance consideration and getting the deed of sale executed within the time stipulated, the agreement will automatically cease to have effect. In that event, the defendant will have no right to get assignment of the property, and the amount of Rupees 2,000/- paid as advance will be appropriated towards the damages sustained by the first plaintiff.
4. Subsequent to the agreement, the defendant paid an amount of Rs. 1,100/- on June 11, 1971 and another amount of Rupees 1,250/- about the date of which there is dispute whether it was on January 13,1972 or February 13, 1972. But the fact remains that this amount was paid. The balance consideration was not however paid nor the sale completed pursuant to Ext. Bl. The first plaintiff issued notice Ext. A2 on September 15, 1980, expressing his readiness to pay the amount due under the mortgage, and calling upon the defendant to appear in the Sub-Registry Office for executing the deed of release on October 4, 1980. The defendant replied by Ext.A3 dated September 23, 1980 in which he made reference to the agreement Ext.Bl and offered to have the deed of sale executed. But the defendant did not pursue his offer, nor did he comply with the demand made by the first plaintiff in Ext. A2. The suit was therefore filed on October 13, 1980 for redemption of the mortgage and for recovery of possession. Notice of the suit was served on the defendant on December 6, 1980, after which a further reply Ext.A4 dated January 4, 1981 was sent by him to the notice Ext. A2 of the first plaintiff. I may mention here that the original reply Ext. A3 did not refer the possession of the defendant after the date of Ext.Bl to the agreement to sell. But by the reply Ext. A4, the defendant purported to
make “amendments” to his reply Ext. A3 by, inserting certain statements here and there to the effect that his possession of the mortgaged property after the date of Ext. Bl was referable to the agreement to sell Ext. Bl and not to the mortgage. In the written statement which the defendant filed thereafter, he claimed that the plaintiff was not entitled to recover possession of the property, because of the protection afforded to him under Section 53A of the Transfer of Property Act, 1882 (TP Act, for short) thanks to his alleged possession under Ext,Bl. He expressed his readiness and willingness to pay the balance consideration and to have the deed of sale executed, after adjusting the amount of the mortgage, the advance of Rs. 2,000/- as also the further amount of Rs. 2,350/- paid in two instalments.
5. Pending suit, the 1st plaintiff assigned his rights over the property by Ext. A7 deed of sale dated January 31, 1983, and the assignees have come on record as plaintiffs 2 and 3.
6. In this state of the pleadings, when there was no serious dispute regarding the primary facts, the question which arose for consideration before the trial Court was whether the defendant was entitled to the protection of Section 53 A of the TP Act on which ground the defendant resisted the claim for redemption and recovery of possession. The trial Court rejected and defendant’s claim for protection under Section 53A, after finding that he was not willing to perform his part of the contract Ext. Bl, and that he had not done anything in furtherance of the agreement, for the Court to hold that his possession after the date of Ext. Bl was referable to it and not to the mortgage. A preliminary decree for redemption was passed accordingly with profits at the rate of Rs. 700/- per annum from the date of deposit of the mortgage money till recovery of possession of the property.
7. This decree was recovered in appeal by the District Judge, who held that the possession of the defendant after the date of Ext. Bl was pursuant to, or in furtherance of, the said agreement. He also held that the defendant was willing to perform his part of the
contract, as evident from the two payments made by him subsequently. The requirements of Section 53A were thus satisfied and the defendant was entitled to the protection of the section. The suit was accordingly dismissed. Plaintiffs 2 and 3 are therefore in appeal.
8. Counsel for the appellants contends that there was no change in the character of the possession after the date of Ext. Bl and that it was still referable to the mortgage Ext. Al. He would also point out that the defendant was not willing to perform his part of the contract, inasmuch as he had not done anything to have the deed of sale executed after the five years period of the mortgage expired on February 10, 1972. He had not offered the balance consideration, nor made any demand of the first plaintiff to execute the deed of sale. He has not even examined himself to speak in support of his case. On the other hand, the evidence in the case was clear that he had always treated his possession as that of a mortgagee only. The two deeds of hypothecation Ext. A5 and sale Ext. A6 executed by him in the years 1972 and 1980, wherein he relates his possession to the mortgage Ext. A1 are referred to in this connection. It is therefore contended that the essential conditions for Section 53 A of the T.P. Act to apply namely continuance in possession in part performance of the contract, the doing of some act in furtherance of the contract, as also willingness on the part of the transferee to perform his part of the contract are absent, thereby keeping the section out of application.’
9. The simple question which arises for. consideration is therefore whether the defendant is entitled to the benefit of Section 53 A of the T.P. Act.
10. The essentials of Section 53A are (1) a contract to transfer immovable property;
(2) the transfer should be for consideration; (3) the contract must be in writing; (4) it should be signed by or on behalf of the transferor; (5) the terms of the contract can be ascertained with reasonable certainty from the Writing; (6) the transferee takes possession of the Whole or part of the property or if already in possession continues in possession; (7) such taking of or continuance in possession should be in part performance of the contract; (8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract. The bone of contention between the parties is regarding conditions 7, 8 and 9. While the plaintiffs-appellants would contend that they are not satisfied, the defendant would contend that they are also satisfied.
11. There is no dispute between the parties regarding the other conditions laid down by the section.
12. S.53A requires that the transferee should take possession of the property, or if he is already in possession, he should continue in possession in part performance of the contract, and should also do some act in furtherance of the contract. These conditions should be satisfied before the transferee becomes entitled to the protection of Section 53 A. The defendant was admittedly in possession of the property under the mortgage Ext. Al which enured for a period of five years up to February 10, 1972. He continued in possession even thereafter, something which he was entitled to do under the terms of the mortgage Ext.Al. The question is whether the possession after the execution of Ext. Bl was referable to and was in part performance thereof.
13. The doctrine of part performance incorporated in Section 53A is the importation into India of the equitable doctrine of part performance in the English law. The rationale behind the rule and the purpose for which it was devised by the Court of Chancery in England have been traced by the Supreme Court in paragraph 13 of the judgment in Sardar Govindrao Mahadik v. Devi Sahai, AIR 1982 SC 989. S. 4 of the Statute of Frauds provided that no person could be charged upon any contract for sale of lands unless the agreement or some memorandum or note thereof was in writing and signed by the party to be charged. As no action could be brought on an oral agreement, the doctrine of part performance was devised by the Court of Chancery to mitigate the hardship arising out
of the advantage taken by the person under an oral contract, as failure to enforce it would permit such person to retain the undeserved advantage. The situation was such that not to enforce the contract because of the defence under the Statute of Frauds after the transferee took advantage of the oral contract, would perpetuate the very fraud which the statute was intended to prevent. But before granting the relief of specific performance of such a contract, the Chancery Court wanted to be absolutely certain about the existence of the contract and for that purpose, wanted that some act had been done by the transferee, which would unequivocally be referable to the oral contract as would prove its existence beyond suspicion, meaning part performance of the contract. This doctrine was incorporated in Section 53 A but with a difference that a written contract was made a sine quo non for its application. But the act relied on as evidencing part performance must be of such a nature and character that its existence would establish the contract and its implementation. Each and every act subsequent to the contract by itself may not be sufficient to establish part performance, but it must be of such a character as to be unequivocally referable to the contract and as having been done in performance of the contract. Therefore one of the essential conditions for the doctrine of part performance to apply was that the act done by the transferee must be unequivocally referable to the contract and not to anything else. The fact that the act is consistent with the contract is not by itself sufficient to make it an act of part performance. There should be a real nexus between the contract and the act relied as in part performance of the contract. Thus it has been held that while the taking of possession by the transferee can be considered as unequivocally referable to the contract (Morphett v. Jones (1818) 37 ER 45), the continuance in possession of the transferee already in possession under a previous arrangement is by its nature equivocal and cannot, by itself and without anything more, be accepted as in part performance of a new agreement with the transferor. The mere holding over of a tenant, unless qualified by
payment of a different rent, was held not to be enough to spell out possession under a new agreement with the landlord — the continued possession being in its nature equivocal. (Wills v. Stradling (1797) 30 ER 1063). Thus a a person claiming the benefit of the doctrine, when he is already in possession prior to the contract, should do something independent of the mere retention of possession to evidence part performance. Mere continued possession though quite legal and valid by itself could hardly be an act of part performance unequivocally referable to the subsequent contract (Sardar Govindrao Mahadik, AIR 1982 SC 989. See also Panna-lal v. Labhchand, AIR 1955 Madh Bha 49 re: continuance in possession by a mortgagee with possession.)
14. A further concomitance of this principle is that a contract which is claimed to be partly performed must by its very nature be one which is capable of putting the transferee in possession of the property. Section 53A stresses on taking of, or continuance in, possession of the property by the transferee pursuant to the contract, so that unless the defective transfer relied on is such as to yield possession to the transferee, the doctrine of part performance cannot be attracted at all. In other words, the contract should be one which by its terms contemplates possession of the transferee. Accordingly a projected lease or a mortgage with possession may be taken in by Section 53A, but not a mere agreement to sell, without any condition for delivery of possession, as S. 54 of the T. P. Act provides that an agreement to sell by itself does not create any interest in immovable property, nor does it entitle the transferee to claim possession of the property pending the transfer. An intended purchaser gets the right to possession only if so provided in the agreement to sell, and not otherwise or only after the sale itself is effected.
15. It is in the background of these principles that the question as to whether the defendant has complied with the conditions of Section 53A has to be dealt with. There is no condition In Ext, Bl to put the defendant in possession of the property, There is also no implieation in Ext. B1 that he will cease to be
in possession as a mortgagee and that his continuance will be in possession under Ext. B1. Only about one third of the consideration due for the sale had been paid on the date of Ext. Bl. Even the additional payments made will not make up any substantial part of the consideration of Rs. 21.000/- agreed upon between the parties. On the other hand, Ext. Bl is clear that the possession of the defendant as owner will arise only when he complies with his obligations under the agreement by paying the balance consideration and getting the deed of sale prepared for execution by the first plaintiff. It is only if the first plaintiff defaults thereafter that the defendant’s possession is made referable to the agreement Ext. B1. Therefore, and on the terms of Ext. Bl and having regard to the nature of the rights created thereby, there is no question of applying Section 53A inasmuch as the agreement is of such a nature that no possession is contemplated to pass thereunder.
16. The defendant had also not entertained the belief at any time (till after the institution of the suit) that his possession was under the agreement Ext. Bl. He had executed a deed of hypothecation of his rights under Ext. Al namely Ext. A5 on May 18, 1972. He recites therein that his possession is under the mortgage Ext. Al. He does not refer to Ext. Bl at all, nor does he trace his possession to Ext. Bl. Similar is the case with Ext. A6 dated December 3,1980, just after the suit, when he assigned his rights under Ext. Al to one Sosamma Paul. Here again he refers to his possession as referable to Ext. Al, and not to Ext. Bl. In fact, he does not even purport to transfer his rights under Ext. Bl to Sosamma Paul. His conduct in sending the reply Ext. A3 in which he does not relate his possession to the agreement Ext. Bl is another important circumstance against the defendant. It was only after he received notice of the suit that he chose to send an amendment to the earlier reply Ext. A3 attempting to refer his possession to Ext. Bl in pan performance of that agreement.
17. What section 53A contemplates is an unequivocal act on the part of the transferee
to continue in possession of the property under the defective transfer. This must be evident from the facts and circumstances of the case. The conduct of the transferee is very relevant in this context; when it indicates that his possession was not referable to the defective transfer, that should spell the rejection of his claim under Section 53A. Thus the conduct of the defendant in refraining from relying on Ext. Bl in Ext. A5, Ext. A6 and Ext. A3 ranging from 1972 to 1980 is proof positive that he had no such animus to relate his possession of the property to Ext. Bl, in part performance of that agreement. As a matter of fact, the question of keeping possession under the agreement Ext. Bl does not really arise, as the agreement by its very nature, or by its specific terms, does not contemplate passing, or keeping nine, of possession to or by the transferee. Ingredient No. 7 of the ingredients referred to earlier is not therefore satisfied in this case.
18. I may mention here that the decisions of this court in Sultan v. Zohra Beevi(1989) 1 Ker LT 945 : (AIR 1990 Ker 186), Kutty Kuttappai v. Pappan Appukuttan (1989) 2 Ker LT (Short Notes) 50, Damodaran v. Shekharan (1990) 2 Ker LT (Short Notes) 46, all support this view taken by me.
19. This is sufficient to overrule the defendant’s plea of protection under Section 53A. But I shall refer to the last two ingredients as well for the sake of completeness. The next question is whether the two payments made by the defendant subsequent to Ext. Bl are acts done in furtherance thereof. Of these two payments, there is controversy regarding the date of the second payment, whether it was on January 13,1972 or on February 13,1972. If it is January 13, it is within the time prescribed in Ext. Bl for performance thereof, as the period of the mortgage was up to February 10, 1972. The plaintiffs relate the payment to January 1972. But the defendant would have it in February 1972, apparently in an attempt to show that the parties were keeping the contract alive after the expiry of the period fixed for performance. The trial court accepted the payment as on January 13, 1972. The appellate court did not demur to that finding.
I perused the endorsement in Ext. B1 relating to this particular payment, I am also satisfied that the payment was actually made on January 13, 1972 and not on February 13, 1972. A bare perusal with the naked eye is sufficient to show that the word January written in Malayalam has been altered as February. Evidently the defendant has tampered with the document to bolster up his case of keeping alive the contract beyond the date fixed for performance. The defendant has also not gone into the box to explain how the alteration in Ext. Bl happened to be made. Whatever that be, it is unnecessary to go into this question whether the payments made were in furtherance of the agreement Ext. Bl in the view that I have already taken that an essential requirement of Section 53A is missing in this case.
20. Now coming to the last of the ingredients, Ext. Bl stipulates that the defendant shall make payment of the balance consideration of Rs. 14,000/- on or before February 10, 1972, and also get the deed of sale prepared for execution by the first plaintiff. Apart from making two small payments, aggregating Rs. 2,350/-, the defendant did not admittedly make payment of the balance, or get the document prepared at any time. It was only when the suit notice Ext. A2 was sent that he sent reply stating that he was willing to perform his part of the contract. In the interregnum between 1972 and 1980, the defendant did not do anything either to make payment of the balance of consideration or to get the deed of sale prepared for execution by the first plaintiff. He did not even make any demand of the first plaintiff to receive the balance consideration and execute the document. Absolutely nothing was done by him over the period of over eight years to fulfil his obligations under the agreement Ext. B1. The question of the defendant’s willingness to perform his part of the contract has to be adjudged with reference to his conduct over the years. The burden is on him, and it is for him to discharge it with sufficient pleadings, evidence and explanation regarding the circumstances against him. It was particularly incumbent on him to explain his silence and inaction for nearly nine years from 1972. But
none was attempted, no explanation was forthcoming in the written statement, nor did he lead any evidence on the point. The defendant did not even examine himself to speak about his willingness to perform the contract or to explain his tell tale inaction between 1972 and 1980. A mere ritualistic racital in the reply Ext. A3 or in the written statement of his alleged willingness will not do service to the requirements of Section 53A. It is also noteworthy that eveti after the suit was filed, the defendant did not deposit the money in court or seek execution of the document.
21.. In these circumstances, I do not find any bona fides in his claim that he was, and had always been, willing to perform his obligations under the contract. The trial court rightly held that he was not willing to perform his obligations under the contract and therefore was not entitled to avail of Section 53A.
22. I am in agreement with the trial court in holding that the defendant has not proved’ that his continuance in possession subsequent to the date of Ext. BI was in part performance of the contract. I am also in agreement with the trial court that the defendant was not willing to perform his obligations under the contract. The defendant was not therefore entitled to claim the protection of Section 53 A. The The lower appellate court has gone wrong in reversing the decree of the’ trial court and in dismissing the suit for redemption.
23. Defendant raised a plea in this court that on the execution of Ext. Bl, treating the mortgage money as part of the sale consideration for the eventual sale, the mortgage got extinguished and therefore the suit for redemption was not maintainable. There is no merit in this plea. The parties did not at any time, when they entered into the contract Ext. Bl or later intend the mortgage to be extinguished. There was no adjustment of the mortgage money to the ultimate sale consideration so instanti Ext. Bl was executed. The amount was to be adjusted to the sale consideration only as and when the defendant; paid the balance consideration and got the deed of sale ready for execution by the first plaintiff. There was therefore no scope for the extinguishment of the mortgage till the sale
deed was ready for execution. I am not elaborating further on this point as there is no substance in it. The plea is only to be rejected.
24. No other points are raised before me. There is also no dispute raised regarding the quantum of mesne profits decreed by the trial Court.
The second appeal is therefore allowed. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. In view of the untenable contentions raised by the defendants he will pay the costs of the appellants in this Court and in the lower appellate Court.