JUDGMENT

Dunkley, J - The suit brought by the plaintiff-appellant was a suit for redemption of an usufructuary mortgage, and the facts found by both the lower Courts are that the defendant-respondent was in possession of a holding of land belonging to the plaintiff-appellant as usufructuary mortgagee, but that in March 1933 the plaintiff-appellant agreed to sell this land to the defendant-respondent for a further sum of Rs. 150, over and above the mortgage amount, and that after this agreement had been concluded the defendant-respondent remained in possession of the land in suit. On these facts the learned Township Judge decreed the suit for redemption on the ground that the redemption of a mortgage and a contract for the sale of the mortgaged land are entirely distinct transactions, and that the plaintiff-appellant was entitled to redeem the mortgage and the remedy of the defendant-respondent was a suit for specific performance of the contract of sale. On appeal to the District Court of Kyaukse the learned Additional Judge correctly realized that the question whether redemption ought to be allowed or not must be decided on a consideration of the principles of the doctrine of part performance; but he failed to realize that the principles of this doctrine, as applicable in British India, are now contained in the new Section 53-A of the Transfer of Property Act, which was added by the Amending Act of 1929, and that the decisions of this Court which he has quoted are, in consequence of the enactment of this section, no longer good law. Section 53-A of the Transfer of Property Act, so far as the present case is concerned, is in the following terms:

Where any person contracts to transfer for consideration any immovable property by wilting 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 as, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continued 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 inquired 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 transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

2. Consequently, in order that the defendant-respondent should be able to resist the plaintiff-appellant's suit for redemption of the mortgage, it is necessary for the defendant-respondent to establish, first, that the agreement for sale of the land to her was made in writing signed by the appellant and that from this writing the terms of the contract of sale can be ascertained with reasonable certainty; and, secondly that she has continued in possession of the suit land in part performance of this contract and has done some act in furtherance of the contract.

3. The allegation set up on behalf oi the respondent is that there was such a writing, that in pursuance of the agreement for sale she paid a further sum as earnest money of Rs. 50 out of the additional sum of Rs. 150 due, and that at the time that the contract was entered into the terms of the agreement were reduced to writing and were signed by the appellant. This writing, which is written in Burmese is contained in an exercise book, has been produced and has been duly proved by the witnesses who were present when it was written and signed. It is in the following terms:

On 5th Laaan Tabaung 1294, I, Ma Thet residing at Sulegon village, had mortgaged to Ma Se Mi, residing in the same village, the holding No, 67, situate in Pauktaw kwin and when I sell it outrig