Section 53-A of the Transfer of Property Act applies to usufructuary mortgages.

( 1 ) IN this appeal presented against the judgment of our learned brother, Srinivasachari J. , under Clause 15 of the Letters Patent, the short point for determination is whether Section 53-A of the Transfer of Property Act could be invoked by a usufructuary mortgagee.

( 2 ) THE suit brought by the respondent on the foot of a registered sale deed for possession of the property, which was usufructuarily mortgaged to the appellant under an unregistered document, was resisted by the appellant on the basis of his possession obtained in part performance of the mortgage.

( 3 ) WHILE the trial court decreed the suit overruling the defence, the lower appellate court on appeal by the aggrieved defendant dismissed the suit upholding the plea of the defendant. In second appeal brought by the plaintiff against the judgment of the District Judge our learned brother, Srinivasachari J. , reversed the lower appellate Courts judgment in the view that Section 53-A of the Transfer of Property Act is inapplicable to the case of a usufructuary mortgage. It is this view of the learned Judge that is challenged before us by the defendant.

( 4 ) SECTION 53-A of the Transfer of property Act reads as follows :"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 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, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding 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 feeing in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferees and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall effect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof".

( 5 ) IT is clear from this section that a transferee for consideration is entitled to invoke this section provided that he has performed his part of the contract and he is put in possession of the property. It is not in dispute that the transferee has fulfilled his part of the contract and is also in possession of the property. The only point debated is whether a usufructuary mortgage falls within the ambit of this section.

( 6 ) WHETHER a mortgage is a "transfer of consideration" has to be judged with reference to the definition of "mortgage" underlying Section 58 of the Transfer of Property Act. Section 58 enacts :" (A) A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money and the instrument (if any) by which the transfer is effected is called a mortgage-deed. " xx xx xx

( 7 ) IT is manifest from Section 58 that a mortgage transfers an interest in specific immov- able property. It may be that the aggregate of rights constituting an absolute ownership is not transferred by the mortgage but some of the rights in the immovable property are conveyed by