BAPUJI Vs. KUKAJI

JUDGEMENT

(1.) THIS is second appeal file (sic) Defendants Nos. 1 to 4 in a suit for red (sic) filed by the Plaintiffs against them. The (sic) Defendants 5 and 6 are the original owners of (sic) house in dispute and the fact is not disputed (sic) on 2 -8 -1935 they had mortgaged their (sic) Defendants Nos. 1 to 4 for a sum of Rs. (sic) The Plaintiffs thereafter purchased the (sic) from the Defendants 5 to 6 on 17 -1 -1944 for (sic) of Rs. 500/ - by a registered sale -deed. The (sic) tiffs then offered the mortgage -money Rs. (sic) the Defendants but as they refused to acc (sic) money the Plaintiffs filed this suit for reder (sic) of the mortgage. The suit was not resis (sic) the original mortgagors -Defendants 5 and 6 (sic) whom the proceeding were ex parte.

(2.) MR . Pancholi, on behalf of the Appellants, places reliance on - Milkha Singh v. Mst. Shankari, AIR 1947 Lah 1 (FB) (A), which is a decision of five Judges' Full Bench of the Lahore High Court which hold that Section 53A, Transfer of Property Act is based on the equitable principles which were previously applicable to the whole of India, and though the Transfer of Property Act was not in force in the Punjab still the position (sic) respect of the defence of part performance is exactly the same as in the provinces where the transfer of property Act was in force. I need not (sic) other rulings, but so far as the Gwalior sate territory of Madhya Bharat State is con - (sic) the (sic) in Section 53A had been even before (sic) the judicial Committee's(sic) 367 (sic) that the principle of (sic) applicable to this part of (sic) State.

(3.) I need not go into the question whether the (sic) redeem" possessed by the mortgagor is (sic) or an intangible property. But one (sic) certain that it is not capable of easy ac -(sic) to the mortgagee. The interest which (sic) can transfer when the mortgage is (sic) cannot be regarded as identical with the property; and so in cases of sale of equity of redemption in a usufructuary mortgage if the mortgagee pleads part performance he must show some distinct overt act (besides his possession which he had as usufructuary mortgagee) in furtherance of the contract. He may show that a declaration in a Panchayat renouncing his rights in the property was made by the mortgagor and that the name of the mortgagee was got recorded in Record of Rights or in a relevant Register of the Municipality, as the case may be. Nothing of the sort has been done in this case.