BABU MURLIDHAR Vs. SOUDAGAR MOHAMMAD ABDUL BASHIR

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit which he brought for the redemption of a mortgage with possession which he created in favour of defendant-1 in the year 1342 fasli. The suit was resisted on the ground that under a subsequent agreement which was executed on May, 30 1940 by the plaintiff in favour of defendant 1, the right of redemption has been lost and defendant-1 had become the owner of the property. The appeal in that context was to the doctrine of part performance which S. 53-A of the Transfer of Property Act incorporates. Both the Subordinate Judge and the District) Judge, accepted the plea of defendant 1 and dismissed the suit.

(2.) So, this second appeal. Ex. D-3 which is the subsequent agreement executed by the plaintiff in favour of defendant-1 on May 30, 1940 states that there was a mortgage with possession in favour of defendant-1 for a period of five years for securing the repayment of a sum of Rs. 2,500 borrowed by the plaintift from defendant-1 and that the plaintiff had constituted defendant-1 owner of the property in supersession of the mortgage, having received from defendant-1 a further sum of Rs. 2,000. The document recited that defendant 1 was already in possession of the property and that the plaintiff would no longer have any right and interest therein and that defendant-1 was at liberty to get the property transferred to his name in the municipal registers.

(3.) The Courts below dismissed the plaintiff's suit principally on the ground that there was part performance under S. 53-A of the Transfer of Property Act and this finding is assailed in this appeal by Mr. Murlidhar Rao on the contention that since Ex. D-3 the subsequent agreement does not display any transformation of defendant-1's possession as mortgagee, into possession as owner under the agreement of sale, and there was no act done in furtherance of the contract which advanced the matter beyond the stage of the contract and resulted in part performance, the appeal to the doctrine of part performance became unavailable.