The doctrine of part performance under Section 53-A of the Transfer of Property Act is available to a person who gets into possession of the property in pursuance of a contract of sale, regardless of whether the sale is complete or not. However, the doctrine does not apply to a mortgagee in possession under an unregistered mortgage deed.

SRINIVASA CHARI, J.

( 1 ) AN interesting question of law arises in this case. Two persons, Avanchi Abbaiah and Jagannadham, executed a registered sale deed on 2/02/1951. A suit was filed in the Court of the District Munsif, Warangal, for possession, against defendants 1 and 2 of the northern portion of the property and as against defendant 3 for the southern portion. The suit was contested by defendant No. 3 relying on two documents, one executed by Jagannadham, an unregistered sale deed dated 29/12/1950 and another executed by Abbaiah, a mortgage deed dated 9/01/1951. The plea of the third defendant was that he was in possession of the property under an unregistered sale deed and a mortgage not registered and he was entitled to retain possession and resist the suit for eviction under the doctrine of part performance under Section 53-A of the Transfer of Property Act. The first Court decreed the suit because these two documents were not on stamp paper and also not registered. The Court however, held that the execution of the documents had been proved. It also held that these documents were brought into existence by the fraud of the vendor and under those circumstances, Section 53-A could not be applied and it could not he regarded as possession having been taken in part performance. It held that because there was an out-right sale Section 53-A of the Act would not apply to the case. As regards the possession under the mortgage, it likewise held that Section 53-A could nave no application whatsoever.

( 2 ) THE third defendant appealed to the lower Appellate Court and the lower Appellate Court differed from the Trial Court and field that it made no difference between a complete transfer and an agreement to transfer, for the purposes of Section 53-A. It, therefore, held that Section 53-A applied and that the plaintiff could not dispossess the third Defendant. It allowed the appeal and set aside the decree of the Trial Court. Hence this appeal.

( 3 ) IT was argued by the learned counsel for the appellant that Section 53-A contemplated the taking of possession of property in part performance of the contract, that is to say, where the sale had not been completed but in part performance of the contract between the parties if the vendee took possession of the property, Section 53-A would apply, and not otherwise as in this case where there was an out-right sale. So far as that question is concerned, I do not think that the law makes any difference as between an out-right sale and an agreement to sell. What is necessary for the application of Section 53-A is that there should be a contract to transfer immovable property for consideration and the transferee must have, in part performance of the contract, taken possession of the same or, being in possession, continues to be in possession under this contract and that would be regarded as having come to be in possession in furtherance of the contract. This doctrine of part performance, which is equitable doctrine, is available to a person who gets into possession of the property in pursuance of a contract of sale. It is not necessary that the sale should have been completed by a duly registered document of sale. I might in this connection refer to a decision of this Court in Achayya v. Venkata Subba Rao, 1956 ALT 725: (AIR 1957 Andh-Pra 854 ). It enables the transferee to defend his possession if the transferor seeks to enforce his right. Although it confers no title in the transferee, it nevertheless invests in him a right to resist dispossession where he is sought to be evicted. Therefore, the application of this principle to a case of out-right sale is well accepted and, therefore, the objection of the plaintiff on this ground cannot be accepted.

( 4 ) AS staled above, the third defendant claims to be in possession of a portion of the property under an unregistered mortgage deed also and the suit is resisted on the basis of possession under an unregistered deed of mortgage being a mortga

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