Nand Lal and Others vs Ramesh Chand and Others

Shiv Kumar Sharma, J.—Meaningful question that arises in the instant appeal is whether transferee can avail section 53-A of the Transfer of Property Act. 1882 as a shield or as a sword? The panics shall be referred hereinafter in the same manner as they were arrayed in the suit.

The defendants seek to challenge the decree and judgment dated April 14, 1977 of the learned Additional District Judge. Jaipur whereby the suit for redemption of mortgage instituted by the plaintiffs was decreed allowing them to redeem the mortgage after making payment of Rs. 13.999/- till August 15, 1977 to the defendants.

Brief resume of the facts is that the plaintiffs filed suit against the defendants on November 10. 1971 with the averments that Shri Roshan Lal the father of plaintiffs had mortgaged with possession four shops and executed as many as five mortgage deeds in favour of Shri Narain Bux the father of the defendants. In para 2 (ka) of the plaint details of mortgage deeds were incorporated thus:-

First mortgage deed for Shop No. 1 was executed on March 21.1942 for Rs. 1799/-

Second deed again for the said Shop No. 1 was executed on August 31.1945 for Rs.2000/-

Third deed for shop No.2 was executed on August 31.1945 for Rs.3200/-

Fourth deed for shop No.3 was executed on August 31. 1945 for Rs.32()()/-

5th deed for shop No 4 was executed on August 16. 1946 for Rs.3800/-.

Plaintiffs prayed to pass decree for redemption of mortgage after determining the amount due.

The defendants in their written statement pleaded that in so far as Shops No.2 and 3 arc concerned they are the absolute owner. It was also averred that after execution of first and second mortgage deed the father of the defendants got repaired shop No. 1 after spending Rs. 1700/-. The repairs and constructions were made with the consent of the father of the plaintiffs. In respect of second shop it was pleaded that plaintiffs" father Roshan Lal agreed to sell it to the father of the defendants for Rs.4501/-. The possession of the said shop was delivered to the father of the defendants and deed was executed on Feb.2. 1948. The agreement to sell in respect of third shop was also executed on Feb. 19, 1946 by the father of the plaintiffs after receiving Rs.4501/- and possession of the said shop was handed over to the defendants'' father. The defendants'' father performed his part in accordance with both the agreements and the defendants had been in the continuous possession of both the shops as owner for more than a period of 12 years. In so far as fourth shop was concerned repairs were made by the defendants with the consent of the plaintiffs 1 and 2. It was also pleaded that after the death of Roshan Lal his mother became the owner. The mother of Roshan Lal had also died therefore the suit was not maintainable without impleading the legal representatives of the mother of Roshan Lal.

On the basis of the pleadings of the parties, the learned trial Court framed as many as seven issues, thus:

(1) Whether the defendants are owners of second and third shops details of which have been shown in the plaint.

(2) Whether the defendants had got repaired shops incorporated in the first and second mortgage deecls and whether they are entitled to recover from the plaintiffs Rs. 1700/- spent by them in making repairs.

(3) Whether the defendants are entitled to Rs.3000/- spent by them in repairing the shop incorporated in fifth mortgage deed.

(4) Whether the suit is not maintainable without impleading the legal representatives of the mother of late Roshan Lal.

(5) Whether the plaintiffs have right to redeem mortgage after making payment of Rs. 13.999/- or any other amount determined by the Court.

(6) Whether the suit is barred by limitation.

(7) Relief.

The learned trial Court decided all the issues in favour of the plaintiffs and decreed the suit vide the impugned decree and judgment.

I have reflected over the rival submissions and carefully scanned the material on record as well as the case law cited before me. Both the learned counsel restricted their argument sin respect of shops No.2 and 3 only in view of order dated August 16. 1979 passed by this Court with their consent regrading shops No. 1 and 4.

I proceed to discuss the submissions issue wise.

Issue No .I.

A look at the material on record reveals that with regard to issue No. I the defendants have submitted agreements of sale Ex. A/1 and A/2 respectively executed on Feb.2. 1948 and Feb. 19. 1946. Receipt Ex. A/3 for Rs.500/- dated 4th Feb. 1946. and receipt Ex. A/4 for Rs.4500/-dated 8th April. 1946 have also been submitted by the defendants. Ramdas DW 1 examined by the defendants, has proved the signatures of Roshan Lal. the father of the plaintiffs on Ex. A/I. A/2. Ex. A/3 and A/4. Devi Sahai DW 4 has proved signatures of Badri Narain. ascribe of Ex. A/1 and A/2. This witness is son in law of Badri Narain. Ram Gopal DW3 and Ram Narain DW 5 made statements about the ownership of the defendants. DW3 was the tenant of the said shop and deposed that he was paying rent to Vladan Mohan, defendant. DW5 deposed that he wanted to lake the said shop on rent from the defendants. The learned trial Court held that execution of Ex. A/1. A/2. A/3 and A/4 stood proved by the evidence of DW 1 Ramdas. and DW 4 Devi Sahai and the oral evidence of plaintiff Ramesh Chand was not accepted. It was also held that Ex.A/1 and A/2 were contract of sale and lhc\\ cannot be termed as sale deeds. Though from these documents it is apparent that whole of the purchase money was paid by the father of the defendants to the father of the plaintiffs and possession of the property was also delivered to him in the capacity of owner. Yet the sale deeds were not got executed within the period of limitation as stipulated in the said documents, therefore the defendants had no right to the said properly and the defendants were not entitled to get the benefits of provisions of Section 5 3-A of the Transfer of Property Act. 1882 (in short the TP. Act) as no suit for specific performance was filed by the defendants against the plaintiffs, ll was also held that the defendants were not reads and willing to perform their part of contract. they cannot derive the rights u/s 53-A of the T.P.Act.

Mr.J.S.Rastogi learned counsel appearing for the defendants made scathing criticism of the finding of the learned trial Court and canvassed that the observation of the learned trial Court in respect of issue No. 1 are perverse, It was contended that even if the suit for specific performance was not filed within the period prescribed by the Limitation Act. the benefits u/s 53-A of the Act was available to the defendants.

Reliance was placed on Durga Prasad and Others Vs. Kanhiyalal and Others, and Narasimhasetty and others Vs Padmasetty. AIR 1998 Kar 389.

In Durga Prasad Vs Kanhiya Lal (supra) this Court (Hon''ble N.M. Kasliwal as he then was) in para No.5 held that in granting relief u/s 53-A of the T.P. Act. the question whether a contract is specifically enforceable or not. has no bearing at all. The provisions of sections 10 and 12 of the Specific Relief Act arc quite distinct from section 53-A of the T.P. Act. It has been laid down in Bharat Chandra Das Vs Md.Ramjan Choudhary (1941) 45 Cal. WN 489 and Jahangir Begum Vs Gulam Ali Ahmed. AIR 1955 Hyd. 101 that Section 53-A applies even when the specific performance of a contract is barred for the contract is otherwise unenforceable. The doctrine of part performance embodied in Section 53-A of the T.P.Act is an equitable doctrine. The object of this section is to prevent a transferor or his successor any interest from taking any advantage on account of the non-registration of the document, provided, the transferee has performed his part of the contract and in pursuance thereof has taken possession of some immovable properly. This right is available to the transferee as defence in order to protect his possession.

In Narasimhasetty Vs Padmasetty (supra) Full Bench of Karnataka High Court in para 28 indicated thus:

From the above authoritative pronouncements of the Privy Council and the supreme Court it can unhesitatingly be held that S.53-A of the Act creates a statutory right in favour of transferee though the inspiration for incorporating the same might have been derived from the English equitable doctrine of part performance. But. it is now more than settled that in India the right of a transferee to defend his possession over a immovable property acquired pursuant to a contract and subject to fulfillment of statutory conditions contained in the said section is statutory in nature and cannot be whistled down on the equitable concept of latches or implied limitation.

Mr. Rastogi. learned counsel next contended that the learned trial Court has failed to consider the averments made in para 2 of the written statement that both the shops were agreed to be sold to the father of the defendants by father of the plaintiffs and whole of the purchase money was paid and there was nothing to be done by the defendants. The sale deed was to be executed by the father of the plaintiffs and the part of the contract assigned to the father of the defendants was over as after execution of ex. A/1 and A/2 he paid purchase money and got possession in the capacity of owner of the shops, therefore the defendants became the owners of the said shops and mortgage deeds did not subsist Even if there was no specific plea u/s 53-A of the T.P. Act in the written statement the benefit of section 53-A of the T.P. Act is still available to the defendants. Reliance was placed on Shesh Mal and others Vs Harak Chand and others. AIR 198.1 Raj 109 and Pirn Charan Pal and another Vs Minor Sunilmoy Nemo and another. AIR 1073 Cal. 1.

In Seshmal and others Vs Harak Chand and others (supra) it was held that:

If sufficient and necessary facts have been pleaded, on the basis of which a plea of part performance could be legitimately raised, then it would not proper to deprive the defendant of defence available to him u/s 53-A on the ground of mere technicality.

In Piru Charan Pal and another Vs Minor Sunilmoy Nemo and another (supra), the Full Bench of Calcutta High Court indicated that defendant can raise defence u/s 53-A even if not specifically pleaded in written statement if all ingredient facts of the section arc stated.

Mr.Rastogi. learned counsel for the defendant appellants further contended that the observations of the learned trial Court that the defendants did not perform their part of the contract and they were not ready and willing to perform their part arc also perverse and against the record of the case. In view of Ex.A/1 and A/2 along with A/3 and A/4 it is apparent that whole of the purchase money was paid by the father of the defendants to the father of the plaintiffs and it was the duty of the father of the plaintiffs to gel the sale deed registered. So far as defendants arc concerned, their father has performed his part of the contract by paying purchase money and by taking the possession of the property. Thus the requirements of section 53-A of the T.P. Act were fully complied with. Under these circumstances the plea of the plaintiffs that mortgage deeds were alive does not subsist. The provisions contained in section 16(c) of the Specific Relief Act 1963 (in short the Act of 1963. will not apply to the defence taken u/s 53-A of the T.P. Act. Section 16(c) of the Act of 1963 only applies to the persons, who institute a suit for specific performance. It does not apply to those who raise defence plea u/s 53-A of the T.P. Act. Reliance was placed on Kirpal Singh Vs. Mst. Kartaro and Others, Kripa and others Vs Sureda. 1988(1) RLR 982, Thakur Shanker Singh Vs Dharmdas. 1994(1) W L C (Raj.) 342.

In Kirpal Singh Vs Kartaro 9supra) the conduct of the defendants in not purchasing the stamp and drafting the sale deed was considered. It was held that omission to purchase stamps and prepare draft sale deed does not disentitle the plaintiffs to get the decree for specific performance.

In Kirpa and others Vs Sufeda and others (supra), the defendants did not purchase the stamp for drafting the sale deed. The Court held that it cannot be inferred that defendants were not prepared to perform their part of the contract.

In Thakur Shankar Singh Vs Dharmdas (supra) it was held that time was not the essence of the contract and readiness and willingness of the plaintiff was held to be proved.

Mr.Rastogi. lastly contended that the learned trial Court has wrongly decided issue No. 1 against the defendants, therefore the finding should be set aside and this issue be decided in favour of the defendants.

On the other hand Mr.B.P. Agrawal. learned Senior Advocate supported the finding of the learned trial Court and canvassed that the authorities cited by Mr.Rastogi are distinguishable and not applicable to the facts of this case. Referring the provisions contained in Section 60 of the T.P. Act Mr.Agrawal. learned counsel, contended that right conferred by section 60 of the T.P. Act to the plaintiffs to redeem the mortgage was not extinguished, therefore, the plaintiffs were entitled to redeem the mortgaged properly. Mr.Agrawal. learned counsel, further contended that no benefit can be derived by the defendants by placing reliance on agreements Ex. A/1 and A/2 as they cannot be termed as sale of the properly. Inviting my attention towards section 54 of the T.P. Act. Mr.Agrawal. canvassed that a contract for the sale of immovable property does not itself create any interest in or charge on such property as transfer of immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument. It was therefore urged that as the sale of property was not legally effected and the father of the defendants was not willing to perform his part of the contract, the plaintiffs had every right to redeem the mortgage. Reliance was placed on Ellappa Naicker and Others Vs. Sivasubramania Maniagaran, wherein it was held that "where in pursuance of an agreement to sell certain mortgaged property to the mortgagee, possession is transferred to the mortgagee but the title to the property intended to be sold in discharge of the mortgage debt has not passed to the mortgagee, the mortgage cannot be deemed to have been extinguished.

Reliance was also placed on Narandas Karsondas Vs. S.A. Kamtam and Another, wherein it was held that:

The right of redemption which is embodied in Section 60 of the Transfer of Property Act is available to the Mortgagor unless it has been extinguished by the act of parties. The combined effect of Section 54 of the Transfer of Property Act and section 17 of the Indian Registration Act is that a contract for sale in respect of immovable property of the value of more than one hundred rupees-without registration cannot extinguish the equity of redemption. In India it is only on execution of the conveyance and registration of transfer of the mortgagor''s interest by registered instrument that the mortgagor''s right of redemption will be extinguished. The conferment of power to sell without intervention of the Court in a Mortgage Deed by itself will not deprive the mortgagor of his right to redemption. The extinction of the right of redemption has to be subsequent to the deed conferring such power. The right of redemption is not extinguished at the expiry of the period. The equity of redemption is not extinguished at the expiry of the period. The equity of redemption is not extinguished by mere contract for sale.

In AIR 1947 188 (Nagpur) relied upon by Mr. Agrawal. it was held thus:

Section 53-A requires in the first place that there should be a written contract, which means a valid specifically enforceable contract. Secondly, it must be shown that the party relying on the section has cither fulfilled or is prepared to fulfill his part of the bargain. This readiness and willingness must be pleaded. Where it is not pleaded and the contract is not a valid contract as for example one b\\ the guardian to sell a minor''s immovable property which a guardian is incompetent to make, the section cannot apply.

In Bai Dosabai Vs. Mathurdas Govinddas and Others, relied upon by Mr.Agrawal. it was indicated thus:

It is clear from the ultimate para of Section 54 and the ultimate and penultimate paras of Section 40 of the T.P. Act expressly enunciates that a contract for sale of immovable property does not of itself create any interest in or charge on such property.

Mr.Agrawal. lastly placed reliance on Mohan Lal (deceased) through his LRs. Kachni and others Vs Mira Abdul Gaffar and another. AIR 1996 SC 910. wherein their Lordships of the Supreme Court propounded that a person who wants to retain the possession of the immovable property held under the agreement of sale must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain the possession of the said property. When transferee seeks to avail of section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract.

Concluding the arguments, in respect of issue No. 1 Mr.B. P. Agrawal. learned counsel canvassed that the learned trial Court has rightly decided issue No. 1 and the authorities cited on behalf of the defendants are distinguishable as all the cases cited by Mr.Rastogi are not related to suits for redemption of mortgages.

Close scrutiny of the legislative history of Section 53-A of the T.P. Act demonstrates that it was inserted for the first time in the Act by the Transfer of Property (Amendment) Act. 1929. As held by the Privy Council in the case of Pir Baksh Vs Mahomed Tahar 1933 61 IA 388. by incorporating the said section in the Act, the English equitable doctrine of part performance was partially imported into India "whereby the defendant in an action of ejectment may in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action.

28.In Sheth Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla and Sons, their Lordships of the Supreme Court propounded at page 4 thus - "The section is a partial importation in the statute law of India of the English doctrine of part performance. It furnishes a statutory defence to a person who has not registered title deed in his favour to maintain his possession if he can prove a written and signed contract in his favour and some action on his part in part performance of that contract.

Their Lordships of the Supreme Court again in Patel Natwarlal Rupji Vs. Shri Kondh Group Kheti Vishayak and another, indicated that Section 53--A of the Act gives statutory right to a transferee for consideration in possession of the property under a contract and it also correspondingly imposes a bar on the transferer to recover the possession of the immovable property from the said transferee.

In order to appreciate the rival submissions it will be apposite to lake slock of section 53-A of the T.P. Act. which reads thus:

53-A. Part performance where any person contracts to transfer for consideration any immovable property by writing 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 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, or where there is an instrument of transfer, that the transfer as not been completed in the manner prescribed therefor by the law for the time being in force. '' the transferor or any person claiming under him shall be debarred from enforcing against the transferer and persons claiming under him any right in respect of the properly of which the transferee has taken or continued in possession, other than right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

According to mandate of Section 53-A of the T.P. Act the defendants had to prove that they were already in possession, continued in possession in part performance of the contract of sale and has done sonic act in furtherance of the contract and they were willing to perform their part of the contract. Section 53-A of the T.P. Act docs not provide for any limitation on expiry whereof the defence contemplated in the section will be lost or will extinguish. Limitation bars the remedy but not the right in possession. Thus the law of Limitation does not apply to section 53-A of the T.P. Act.

Therefore, keeping in view the various judicial pronouncements referred to as above, it is evident that the right of the transferee to defend his possession envisaged under the above provisions is statutory in nature and it has not been subjected to am limitation either express or implied.

Conditions necessary for making out a defence for possession contemplated u/s 53-A of the T.P. Act in a suit for ejectment by the owner have been clearly spelt out by their Lordships of the Supreme Court in the case of Nathulal Vs. Phoolchand, which are the following (Para 9 at page 548):

(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty:

(2) that the transferee has, in part performance of the contact, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;

(3) that the transferee has done some act in furtherance of the contract; and

(4) that the transferee has performed or is willing to perform his part of the contract.

In the above case, it has also been held that:

If these conditions are fulfilled then notwithstanding that the contract though required to be registered, has not been registered of, where there is an instrument of transfer, that the transfer has not been completed in,the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession, other than right expressly provided by the terms of the contract.

In order to apply the aforesaid conditions enumerated in the case of Nathulal Vs Phool Chand (supra) it is to be seen whether the father of the defendants had in part performance of the contract, taken possession of the property or he was already in possession and continued in possession in part performance of the contract and he did some act in furtherance of the contract or was willing to perform his part of the contract.

A bare perusal at the written statement filed by the defendants reveals that in para No.2 the defendants pleaded thus:

As already discussed the execution of agreement for sale Ex. A/1 and A/2 stood proved. The shops No.2 and 3 were already in possession of the defendants" father and continued as such in the capacity of owner after payment of purchase money to the father of the plaintiffs. The plaintiffs have suppressed the fact of execution of agreements for sale in respect of shops 2 and 3. The plaintiffs did not plead that said agreements were ever executed or that the defendants'' father was not ready and willing to perform his part of the contract. Whereas the defendants in para 2 of the written statement specifically pleaded that their father performed his part in accordance with both the agreements and the defendants had been in the continuous possession of shops No.2 and 3 as owner for more than twelve years. The plaintiffs did not choose to file rejoinder to controvert the pleadings of the defendants. 1 am thus unable to persuade myself to agree with Shri B.P. Agrawal. learned Senior Advocate that as the father of the defendants did not purchase stamps he was not ready and willing to perform his part of the contract. I am of the considered view that the father of the defendants performed his part by paying entire purchase money under the agreement to the father of the plaintiffs and took possession of the shops No.2 and 3 in the capacity of owner. He did everything in furtherance of the contract and it was for the plaintiffs'' father to perform his part by executing registered sale deed.

In so far as argument advanced by Shri Agrawal in respect of section 16(c) of the Act of 1963 is concerned lam of the view that it is also devoid of merit. Section 16(c) of the Act of 1963 provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. other than terms the performance of such has been prevented or waived by the defendant. In the instant case as already observed that the defendants in the written statement pleaded that their father performed his part in accordance with both the agreements.

In Mohan Lal (deceased) through his L. Rs. Kachru and others Vs Mira Abdul Gaffar and another (supra), the appellant Mohan Lal had come into possession of the suit lands pursuant to an agreement. He paid part consideration and obtained possession of the land. Subsequently the respondents purchased the lands by sale deeds. In the meanwhile the appellants'' suit for specific performance of the contract for sale was dismissed and became final. The respondent filed the suit for possession. The trial Court decreed the suit. On appeal, it was reversed and in second appeal the High Court set aside the judgment and decree of the appellate Court and restored the decree of the trial Court. Against the finding of the High Court, the appellant preferred special leave petition. The only question before the Supreme Court was whether the appellant is entitled to retain possession of the suit property. Two pleas had been raised by the appellant in defence. One was that having remained in possession he has perfected his title by prescription. Secondly, that he is entitled to retain his possession by operation of Section 53-A of the T.P. Act. Their Lordships of the Supreme Court held that since the appellant''s claim was founded on section 53-A of the T.P. Act and the appellant admitted by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession was not available to the appellant. In so far as argument relating to section 53-A of the T.P. Act their Lordships of the Supreme Court observed that the appellant lost his right as suit for specific performance had been dismissed and became final. Therefore, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Their Lordships of the Supreme Court propounded thus:

Even otherwise, a transferee can avail of section 53-A only as a shield but not as a sword. It contemplates that where any person contracts to transfer for consideration any immovable property by writing 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 has performed or is willing to perform his part of the contract, he would be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of contract. Agreement does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise.

It was also held in the said case that the transferee must plead and prove his readiness and willingness to perform his part of the contract in view of section 16(c)j)f the Act of 1963. It was further held thus:

Equally, when transferee seeks to avail of section 53-A to retain possession of the property which he had under the contract, fit would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contact.

As already held by me that the defendants pleaded in para 2 of the written statement that their father performed his part of the contract. Thus the ratio of Mohanlal Vs Mira Abdul Gaffar (supra) does not help the plaintiffs.

In so far as the cases of Narandas Vs S. A.Kamtam (supra). Pusaram Maniklal Izardar Vs Deorao Gopalrao Mali (supra) and Ellappa Vs Sivasubramanian (supra), relied by the plaintiffs are concerned. I am of the view that the ratio of the said cases are distinguishable and not applicable in the instant case, in view of the mandate of section 53-A of the T.P. Act.

I subscribe the view of this Court expressed in Durga Prasad and others Vs Kanhiya Lal and others (supra). In granting relief u/s 53-A of the T.P. Act the question whether a contract is specifically enforceable or not has no bearing at all. The provisions of sections 10 and 12 of the Specific Relief Act are quite distinct from Section 53-A of the T.P. Act. Section 53-A applies even when the specific performance of a contract is barred or the contract is otherwise unenforceable. The doctrine of part performance embodied in section 53-A of the T.P. Act is an equitable doctrine. The object of this section is to prevent a transferor or his-successor any interest from taking any advantage on account of the non-registration of the. document, provided the transferee has performed his part of the contract and in pursuance thereof has taken possession of some immovable property. The conduct of the plaintiffs in suppressing the fact of agreement of sale in respect of shops 2 and 3 disentitle them from seeking the relief on account of non-registration of the said documents Ex. A/1 and A/2 in view of Section 53-A of the T.P. Act as it has been established that the father of the defendants had performed his part of the contract under the said agreements. The plaintiffs now cannot derive the advantage of section 60 of the T.P. Act. The right of redemption embodied in section 60 of the T.P. Act is available to the mortgagor unless it has been extinguished by the parties. Where the mortgagee effectively pleads possession under an unregistered contract of sale in defence, the right of mortgagor u/s 60 of the T.P. Act is not available and it will be deemed as extinguished. In my view the defendants have not used the defence available to them u/s 53-A of the T.P. Act as a sword but it has been used as a shield. In view of what 1 have discussed hereinabove, the issue No. 1 is decided in favour of the defendants and the finding of the trial Court in respect of this issue is reversed and set aside.

ISSUES 2 & 3.

So far as issues 2 and 3 arc concerned, they are with regard to expenditure incurred by the defendants. 1 have closely scrutinized the evidence of the parties. The case of the defendants was that all these repairs were done by the father of the defendants. It was also said that these repairs were done in the year 1953. 1954 and 1969 and the suit was filed in the year 1977. Though details of repairs have been given in the statements but accounts books have not been produced. The learned trial Court after properly appreciating the evidence of the parties rightly decided issues 2 and 3 against the defendants and in favour of the plaintiffs and 1 do not sec any illegality in the finding of the trial Court in so far as it relates to issues 2 and 3.

ISSUE No. 4.

DW 1 Ramdas stated in his cross examination that he does not know the name of Roshan Lal and he did see him only on the day of the death of Roshan Lal. This statement has hot been corroborated by any other witness. Therefore, the trial Court has rightly decided this issue against the defendants.

ISSUES 5 & 6

Issues 5 & 6 were not pressed before me by the defendants.

ISSUE No. 7

In view of discussion of Issue No. 1 appeal of the defendants stands partly allowed. If is held that the plaintiffs are not entitled to redeem mortgage in respect of shops 2 and 3 in question. Costs easy.