A contract for the transfer of immovable property must be registered in order to be enforceable, and the doctrine of part performance does not apply to contracts that are not themselves transfers of property.

1. This is an appeal by a mortgagee and his two tenants directed against the judgment and decree of the lower Appellate Court, which while affirming the decree of the trail Judge with regard to the right of redemption of the mortgagor has reduced the rate of interest from 51/2 per cent to 3 per cent on the mortgage amount. The appeal, therefore, is concerned only with the rate of interest or the mortgage amount, whether it is payable at the rate of 51/2 per cent or 3 per cent.

2. The respondent Banwari Lal mortgaged a double-storeyed shop in Kucha Lal Rura Mal in Ludhiana City with Karam Chand for a sum of Rs. 4,000/- by a document executed on the 9th of February 1942. The interest was payable at the rate of 3 per cent and the mortgage was described to be as one with possession. It seems, however, that the mortgagor remained in possession and continued to pay rent to the mortgagee till the 10th of August 1948 when the property was actually delivered to the appellant-mortgagee. The suit for redemption was brought by the mortgagor respondent on the 29th of November, 1961. The real dispute turned on the rate of interest which was payable on the mortgage amount of Rs. 4000/-. The plaintiff claimed that interest was payable at the rate of 3 per cent mentioned in the mortgage deed itself. The mortgagee, however, placed reliance on documents A and B which are letters written on the 19th of September and 2nd of October 1943 by the mortgagor himself in which he reluctantly agreed on pressure from the mortgagee to raise the rate of interest from 3 to 51/2 per cent. These letters in the opinion of the trial Judge entitled the mortgagee defendant to claim a higher rate of interest and a decree was passed in accordance with this novation in the terms of the mortgage agreement embodied in these two letters. The rate of interest decreed by the trial Judge was 51/2 per cent. A decree for redemption of property was passed on payment of Rs. 2,298/8/9. On the mortgagors appeal, the learned Additional District Judge of Ludhiana being of the view that these letters were inadmissible in evidence for want of registration, the rate of interest was reduced to 3 per cent. The decorate amount thus stood reduced to Rs. 653/11/9. There is no dispute in the matter of calculation and the mortgagee has come in appeal only on the point that the letters A and B could be used for a collateral purpose under the doctrine of "part performance" laid down in S. 53-A of the Transfer of Property Act, 1882, as the mortgagor had in terms of the contract delivered possession of the property.

3. It is contended by Mr. Thapar that the letters A and B of the 19th of September and 2nd of October 1943 by which the rate of interest was increased form 3 to 51/2 per cent were followed by delivery of possession on the 10th of August, 1948. In his arguments it has been stressed that the mortgagee having partly performed the contract by entering into the possession of the suit premises, the mortgagor at once became liable for payment in terms of the contract embodied in these two letters. On an examination of the provisions of S. 53-A of the Transfer of Property Act, I do not find it possible to accede to this submission of the learned counsel for the appellant.

Under this section :-

"Where any person contracts to transfer for consideration any immovable property by writing signed by him. 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 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 ............................. the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the tr