The doctrine of part performance under Section 53-A of the Transfer of Property Act, 1882, can be invoked by a person who has performed or is willing to perform his part of the contract, and who has taken possession of the property or has done some act in furtherance of the contract.

( 1 ) THIS appeal is by the defendant against the decree, dated 10-1-1959, passed by shri S. L. Sharma, Second Additional District Judge, indore, in Civil Suit No. 14 of 1961, decreeing the first respondent's suit for redemption of it mortgage, dated 26-11-1929 which he had executed in favour of the appellant, Devisahai.

( 2 ) THE first respondent, Sardar Govindrao is owner of the suit house. He executed a possessory mortgage in favour of the appellant on 26-11-1929 for a consideration of Rs. 10,000/ -. Subsequent to the mortgage, certain other developments have taken place on the strength of which the appellant contests the mortgagor's right to redeem. According to the appellant, the mortgagor had agreed to sell the mortgaged properly to him for a consideration of Rs. 50,000/-; and in pursuance of the same, a sale deed was actually executed and duly signed on 10-10-1950. But before presentation of the sale deed for registration, the mortgagor changed his mind and by using the other stamp papers of the deed except the first and the last, the mortgagor altered it into a deed of sale, dated 14-10-1950 in favour of the second respondent. Gyarsilal, for a consideration of rs. 50,000/ -. At the time of the sale deed in favour of the appellant, an account of the mortgage transaction was made and a round sum of Rs. 25,000/- was settled to he adjusted. The appellant was to pay the balance of Rs. 25,000/- in cash. As there was a completed contract in favour of the appellant, he claimed the benefit of part performance under Section 53-A of the Transfer of Property Act to resist the mortgagor's claim for redemption, and also contended that the second appellant, Gyarsilal did not get any valid title by virtue of the subsequent sale deed, dated 14-10-1950 executed by the mortgagor. ( 3 ) THE plaintiff respondents contended that the mortgagee, Devisahai was not entitled to resist the claim for redemption by relying on the doctrine of part performance and that Section 53-A of the Transfer of Properly Act was not at all attracted

( 4 ) TO add to this confused state of affairs, one, Motilal (now respondent 3 who was not impleaded in the trial Court, but who has now filed an application for being impleaded as a party, and who was provisionally permitted to he impleaded as a respondent by order, dated 3-5-1962) had filed a suit against the mortgagor, sardar Govindrao in the year 1947. He had attached the suit house before judgment on 6-11-1947 Subsequently, he obtained a money decree. That decree was put in execution on 27-3-1951, and the suit house was put to auction on 253-1953 Motilal himself purchased the properly for a consideration of Rs 300/ -. Of course, his purchase could only be subject to the mortgagee's right. Therefore, by virtue of the said auction sale, Motilal now claims to be a person interested in the equity of redemption, as also he resists the mortgagee's right to retain the properly on the strength of part performance, as according to him the agreement to sell either in favour of the appellant. Devisahai or in favour of the second respondent Gyarsilal was during the pendency of his attachment. Therefore, according to him, neither of the vendees is entitled to possession as against his, and he alone is entitled to redeem, and not the original mortgagor, Sardar govindrao. This Motilal had not been a party in the trial Court. Therefore, the learned Judge had no occasion to consider the questions that are now sought to be raised by Motilal.

( 5 ) THE learned Judge of the trial Court held that the mortgagor had executed a sale deed of the mortgaged house in favour of the defendant Devisahai as alleged in paragraph 7 of the written statement. However, as the sale deed was not registered, the mortgagee did not get any right except to enforce the agreement of sale. As regards the mortgagee's contention that he could rely on the doctrine of part performance, the learned Judge held that Section 53-A of the Transfer of pr