Delivery of possession of a tangible immoveable property can be effected by the vendor or by a person directed by the vendor.

K.Sahai, J.

1. The plaintiff, who has lost in all the Courts, has preferred this appeal under Clause 10 of the Letters Patent against the decision of a learned single Judge of this Court in Second Appeal No. 553 of 1950. It has been referred to this Bench on account of conflict of judicial opinion on the points which have been raised.

2. Briefly, the facts of the case are as follows. One Sarju Lal executed a registered zerpashgi bond (Exhibit B) dated the 12th October, 1925, in favour of Bharduli Singh, a predecessor-in-interest of defendants Nos. 1 to 3 in respect o£ the disputed property, namely, an area of 6 Kathas 4 dhurs in plot No. 211 of village Patti Pachamba, for a consideration of Rs. 49/-. On the 16th January, 1930, Sarju Lal orally sold the mortgaged property to defendants Nos. 4 and 7 (Baban Dubey and Kapildeo Dubey) brothers of defendants Nos. 5 and 6, for a consideration of Rs. 89/-.

On the same date, Sarju Lal executed the receipt (Exhibit D), acknowledging the oral sale and receipt of Rs. 40.00 in cash and directing the vendees to redeem the mortgage on payment of Rs. 49/- to Bharduli Singh. Thereafter, the vendees paid Rs. 49/- to Bharduli Singh and redeemed the mortgage. Exhibit C is the endorsement made by Bharduli Singh on the back of exhibit B, acknowledging receipt of the entire mortgage money, i.e. Rs. 49/-.

The Courts below have held that Sarju Lal executed the receipt (Exhibit D), and that Bharduli made the endorsement (exhibit C) and delivered possession of the disputed property to the vendees on one and the same day. They have also found that the zerpashgi bond was redeemed by the vendees "at the instance and in the presence of the vendor".

3. The plaintiff claims to have purchased the disputed property from Sarju Lal under a registered sale deed dated the 16th May, 1945. He instituted the suit for redemption on the allegation that the defendants refused to receive payment of the mortgage money and to allow the mortgaged property to be redeemed. The Courts below have dismissed his suit on the ground that defendants Nos. 4 and 7 became the owners of the disputed property on the basis of the oral sale to them, hence it is not capable of being redeemed.

4. Appearing on behalf of the appellant, Mr. Jaleshwar Prasad has advanced the argument that the oral sale by Sarju Lal to defendants Nos. 4 and 7 was invalid and unenforceable. In support of his argument, he has first contended that all that Sarju Lal held on the 16th January, 1930, was the equity of redemption in the disputed property, and that it could not be legally sold by an oral sale because it was an intangible thing and not a tangible immoveable property within the meaning of Sec. 54 of the Transfer of Property Act. He has next contended that, in any case, the sale had to be accompanied by delivery of possession in order to be effective, and that, the disputed property having been in the possession of a usufructuary mortgagee, it was not possible for the vendor to deliver possession to the vendees. According to him, the fact that the mortgagee delivered possession to the vendees is not a sufficient compliance with the requirements of the law as contained in Sec. 54.

5. I propose to consider the two points raised by Mr. Jaleshwar Prasad in the order in which I have mentioned them. Under the English common law, a mortgagee became the owner of a property mortgaged to him subject to a covenant for re-conveyance if his mortgage dues were paid to him within a fixed time. The mortgagors right to redeem the mortgage until he was debarred from it by foreclosure or the mortgaged property was sold under the orders of the Court was recognised by the Courts of Equity which held that a mortgage was merely a security for money.

This right is called the equity of redemption, Even when the mortgagor was given this right, the mortgagee continued to be the legal owner of the mortgaged property. This lasted until the Law of Property Act, 1925, was passed w