JUDGMENT V.R. Krishna Iyer, J. 1. The appellant, who is the 2nd defendant, has filed this appeal, against findings rendered adversely to him by the courts below. Nevertheless a serious effort has been made by counsel to show how his client is entitled to resist the action for redemption of the mortgages covered by Exs. D3 and D4, based upon the agreement to transfer executed by the plaintiffs in his favour (Ex. D1) and possession obtained by him allegedly pursuant to the agreement. 2. Facts first and law next, plaintiffs are the owners of 35 cents of land, 15 cents out of which were mortgaged possessorily in 1119 under Ex. D-3 to the first defendant and 20cents a little later in the same year under Ex. D-4to the same person thus putting the first defendant in possession of the entire 35 cents of land the mortgage amount being Rs. 325/- and Rs. 450/- respectively. 11 is also disclosed that as per Ex. D-5, a deceased son of 1st plaintiff (the other plaintiffs are the other children of the first plaintiff) had executed in favour of the 1st defendant a simple mortgage over the plaint schedule property for Rs. 500/- in 1123 Thereafter the plaintiffs entered into an agreement to transfer 15 cents of land to the 2nd defendant for a consideration of Rs. 3,000/-. Ex. D1 dated 20-7-1953 is this agreement, where under a sum of Rs. 150/- is paid by way of advance, Rs. 2,000/- is reserved for getting a release of the mortgages and the payment of value of improvements due to the first defendant (to fix the first defendant to this figure he has also been persuaded to join Ex. D-1) and a period ending with 15-3-1129 is fixed for the completion of the sale, paying the balance consideration. However, before the date fixed for completion of the sale the second defendant obtained an assignment of the mortgage rights from the first defendant, under Ex. D-6 dated 4-9-1953. He came into possession of the entire 35 cents of land by virtue of Ex. D-6, which incidentally recited and earlier agreement between the two defendants regarding the transfer. The amount paid by way of consideration for Ex. D-6 is Rs. 2,000/- which tallies arithmetically with the figure fixed as payable to the first defendant under Ex. D-1. 3. He came into possession of the entire 35 cents of land by virtue of Ex. D-6, which incidentally recited and earlier agreement between the two defendants regarding the transfer. The amount paid by way of consideration for Ex. D-6 is Rs. 2,000/- which tallies arithmetically with the figure fixed as payable to the first defendant under Ex. D-1. 3. Sometime later, finding the transaction of sale not going through the plaintiffs caused a lawyer notice to be sent to the 2nd defendant, Ex. D-2 demanding fulfilment of the agreement. (Ex. D-1 had directed the 2nd defendant to take the follow-up action for the completion of the sale, such as the drafting of the sale deed etc.). The 2nd defendant apparently ignored that notice and continued in possession till at last the present suit was brought in 1964 for redemption of the two mortgages Ex. D-3 and D-4 (although Ex. D-5 simple mortgage also subsists in favour of the first defendant, that was not sought to be redeemed in the suit) and then he raised the defence of immunity from dispossession under S.53(A) of the Transfer of Property Act. 4. On these facts the learned Munsiff found that what was covenanted in Ex. D-1 was not done by the 2nd defendant under Ex. D-6 and that there was no act in part performance of the contract which could be used as a shield by him. The learned District Judge went a step further and stated that not only was there no act in performance of the contract, but the transferee had not shown willingness to perform his part of the contract, apparently harking back to Ex. D-2 notice and the indifference of the 2nd defendant to it. 5. I do not think I should go elaborately into the facts or the law, since the learned District Judge has fully set out the relevant facts and evidence and applied what I regard as the correct law on the point. The only defence raised is that Ex. D-6 whereby the 2nd defendant came into possession, is attributable to the contract Ex. D-1., Did the 2nd defendant (the transferee within the meaning of S.53(A) take possession of the property in part performance of the contract, Ex. D-1? No, said the District Judge and gave atleast fine reasons in support of the finding in Para.5 and 7 of her judgment. D-1., Did the 2nd defendant (the transferee within the meaning of S.53(A) take possession of the property in part performance of the contract, Ex. D-1? No, said the District Judge and gave atleast fine reasons in support of the finding in Para.5 and 7 of her judgment. I am not impressed much with the distinction between a release deed and a transfer deed as such. If that were the only point which led the learned District Judge to the conclusion that Ex. D-6 was not referable to Ex. D-1, 1 would have dissented; but what I do find is that the character of Ex. D-6 is substantially different from what was contemplated by the parties under Ex. D-1 and in substance Ex. D-6 has an independent character. Since the factual basis for this conclusion is already set out in the judgment of the District Court, I need not repeat it here. I agree with the courts below that the possession which the 2nd defendant came by was not necessarily referable to the agreement to transfer. The law is well established that an act to be in part performance of the contract under S.53(A) must flow out of the agreement as it were and must be referable clearly to that agreement. It is not possible to say this of Ex. D-6. Indeed a realisation of this flaw led the 2nd defendant to refer to another oral agreement between the first and 2nd defendants, but such a different agreement, oral or otherwise, cannot do duty for the agreement to transfer with reference to which alone an act in part performance can lay the foundation for the defence under S.53(A). My point has already been made and the appellant has, to lose. 6. Although the learned District Judge has taken the view that from the failure to respond to Ex.D-2 the unwillingness of the 2nd defendant to fulfill the agreement can be inferred, I need not go into the matter. A miss is as good as a mile and one fatal point is enough to dismiss the appeal which fails with costs.