JUDGMENT : 1. This is second appeal filed by defendants Nos. 1 to 4 in a suit for redemption filed by the plaintiffs against them. The defendants 5 and 6 are the original owners of the house in dispute and the fact is not disputed that on 2-8-1935 they had mortgaged their house to defendants Nos. 1 to 4 for a sum of Rs. 110/-. The Plaintiffs thereafter purchased the house from the defendants 5 to 6 on 17-1-1944 for a sum of Rs. 500/- by a registered sale-deed. The plaintiffs then offered the mortgage-money Rs. 110/- to the defendants but as they refused to accept the money the plaintiffs filed this suit for redemption of the mortgage. The suit was not resisted by the original mortgagors-defendants 5 and 6 against whom the proceeding were ex parte. Defendants 1 to 4 who are the appellants in this Court resisted the suit on the ground that, after the mortgage of 2-8-1935 in their favour, the mortgagor on 17-9-1936 sold the equity of redemption by means of a document which had not been registered and the total sum advanced by them to the mortgagors was at that time Rs. 242-8-0. The trial Court held the view that though the document of sale of equity of redemption was compulsorily registrable under the Gwalior Registration Act, yet S. 53A, Transfer of Property Act helped the defendants in resisting the suit. It, therefore, dismissed the Suit. The first appellate Court reversed the decree and judgment on the ground that the consideration for the document of 17-9-1936 has not been proved and as the document was compulsorily registrable under the Gwalior Registration Act, S. 53A cannot help the defendants as at that time the Transfer of Property Act was not applicable in Gwalior State. The defendants Nos. 1 to 4 have now come in second appeal before this Court. 2. Mr. Pancholi, on behalf of the appellants, places reliance on - 'Milkha Singh v. Mst. The defendants Nos. 1 to 4 have now come in second appeal before this Court. 2. Mr. Pancholi, on behalf of the appellants, places reliance on - 'Milkha Singh v. Mst. Shankari', AIR 1947 Lah 1 (FB) (A), which is a decision of five Judges' Full Bench of the Lahore High Court which held that S. 53A, Transfer of Property Act is based on the equitable principles which were previously applicable to the whole of India, and though the Transfer of Property Act was not in force in the Punjab still the position in respect of the defence of part performance is exactly the same as in the Provinces where the Transfer of Property Act was in force. I need not discuss other rulings, but so far as the Gwalior State territory of Madhya Bharat State is concerned the principle embodied in S. 53A had been applied even before : see, the Judicial Committee's judgment reported in - 14 Risala Quanoon 367 (B)', where it was assumed that the principle of. S. 53A, T.P. Act was applicable to this part of the State. 3. But this alone cannot solve the problem in this case for, the proviso to S. 53A is important which is as follows : "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." I agree with Justice Mackney in - 'Ko Mar v. Ma May', AIR 1935 Bang 12 (C), that from the wording of the section it is clear that it is for the person claiming benefit of the doctrine of part performance to show that the transferee, who otherwise has a legal title, had notice of the contract or of the part performance thereof. In the present case there was in fact no reason why the plaintiffs should have made any inquiries as to in what capacity the defendants 1 to 4 were in possession of the house. It was very well known that they were usufructuary mortgagees and as such under the registered mortgage-deed their possession must have been in that capacity. I do not consider that the plaintiffs were bound to make searching inquiries through their spies as to whether or not under some purdahridden arrangements the equity of redemption had been sold to these mortgagees under some unregistered sale-deed. I do not consider that the plaintiffs were bound to make searching inquiries through their spies as to whether or not under some purdahridden arrangements the equity of redemption had been sold to these mortgagees under some unregistered sale-deed. Section 53A in my opinion lays down that the transferee must show that in part performance of the contract some overt or rather express act has been done. When the usufructuary mortgagees were already in possession of the house, they are bound to show two things in such matters first, that some overt or rather express act had been done in furtherance of the sale, and secondly, that the vendee for consideration had notice of the contract or of the part performance thereof. The defendants failed to establish both these things. 4. I need not go into the question whether the "right to redeem" possessed by the mortgagor is a tangible or an intangible property. But one thing is certain that it is not capable of easy actual delivery to the mortgagee. The interest which the mortgagor can transfer when the mortgage is usufructuary cannot be regarded as identical with the property; and so in cases of sale of equity of redemption in a usufructuary mortgage if the mortgagee pleads part performance he must show some distinct overt act (besides his possession which he had as usufructuary mortgagee) in furtherance of the contract. He may show that a declaration in a Panchayat renouncing his rights in the property was made by the mortgagor and that the name of the mortgagee was got recorded in Record of Rights or in a relevant Register of the Municipality, as the case may be. Nothing of the sort has been done in this case. I also agree with the learned District Judge that the unregistered document is tainted with suspicion. When the mortgage-deed had been registered what was there to prevent the defendants 1 to 4 to get the subsequent document (which was a sale-deed) also to be registered ? This unregistered document is dated 17-9-1936. It recites that Bhuwan borrowed Rs. 242/8/- from Bapuji and had sold his house which was already mortgaged to Bapu. It was necessary to have produced either Bhuwan or Bapuji to prove consideration but none of them has been produced. This unregistered document is dated 17-9-1936. It recites that Bhuwan borrowed Rs. 242/8/- from Bapuji and had sold his house which was already mortgaged to Bapu. It was necessary to have produced either Bhuwan or Bapuji to prove consideration but none of them has been produced. Bhuwan is dead but his brother Lachhman says that Bhuwan had not agreed to sell, nor he had taken any money. Then there are two attesting witnesses who are alleged to have been dead so the consideration could not be proved by any unimpeachable evidence; Jhunnulal comes as a scribe but the document does not show that he had written it. He deposes that Rs. 200/- were not paid in his presence. He also says that the attesting witnesses had not signed it in his presence. I agree with the learned District Judge that Kunwarlal is a chance witness who has been produced in order to patch up the weak points and as the document does not itself indicate his presence when it was executed, his statement fourteen years after the execution cannot be relied upon. No explanation is forthcoming why Bapu defendant who is alleged to have paid Rs. 200/- to Bhuwan did not come to the Court as a witness. In chose circumstances so far as the payment of consideration is concerned I do not think that it will be proper for me to take any view different from that taken by the first appellate Court. I, therefore, dismiss the appeal with costs. Appeal dismissed.