JUDGMENT

D. A. DESAI, J.:—What constitutes part performance within the meaning of the expression in S. 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 die erstwhile mortgagor for redemption, is the question canvassed in these two appeals by common certificate.

2. Facts first. Sardar Govindrao Mahadik original plaintiff I (now deceased prosecuting These appeals through his legal representatives) and Gyarsilal original plaintiff 2 (appellant 2) filed Civil Suit No. 14/51 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 Feb. 22, 1951. A loan of Rs. 10,000/- was secured by the mortgage. The mortgage was mortgage with possession. Plaintiff 1 was the mortgagor and the sole defendant Devi Sahai was the mortgages. Plaintiff 2 is a purchaser of the mortgaged Property from plaintiff I under a registered sale deed Ex. P-1, dated Oct 14, 1950. Plaintiff 1 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 Oct. S. 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 sonic 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 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 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 mortagagor.

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 dead was drawn up on Oct. 10, 1950, but it was never registered. On Oct. 14, 1950, 1st 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 mortgages and the subsequent purchaser as plaintiffs 1 and 2 respectively filed a suit on Feb. 22, 1951 against mortgagee defendant Devi Sahai for taking accounts of the mortgage transaction and for a decree for redemption.

3. The mortgagee Devi Sahi defended the suit on diverse grounds but the principal and the only defence canvassed was one under. S. 53-A 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 inasmuch as not only is the mortgagee is possession in part performance of the contract of sale but has continued in possession in part performance of the contract and has done several acts unequivocally referable or attributable to the contract and that the mortgagee as transferee has not only performed but is willing to