Judgment :- (Appeal filed against the Judgment and Decree of the Subordinate Judge, in A.S.No.8/1982 dated 30.07.1983 filed against the Judgment and Decree of the Principal District Munsif, Srivilliputhur, in O.S.No.526/1980 dated 23.12.1981.) Plaintiff in O.S.No.526/1980 - the third Defendant in O.S.No.53/1983, is the Appellant. Earlier, by the Judgment dated 24.12.1977, both the second appeals were allowed holding that the Plaintiff is entitled to redeem the Othi and recover possession. As against the said Judgment, the unsuccessful first Defendant has preferred appeal before the Supreme Court in C.A.Nos.4440 and 4441 of 1999. Observing that the High Court has assumed jurisdiction under Section 100 CPC without framing a substantial question of law, the Supreme Court has set aside the Judgment of the High Court and remitted back the matter to the High Court for fresh disposal, in accordance with law. Accordingly, both the second appeals are before this Court for fresh consideration. 2.For convenience, the parties are referred to their original rank in O.S.No.526/1980. In O.S.No.526/2000, the Suit Property originally belonged to one Sadagopachariar. He Othied the Suit Property in favour of one Thangamani Ammal, wife of the first Defendant Arumugam Pulavar, on 22.02.1958, for Rs.300/-. Thangamani Ammal died, leaving first Defendant and second Defendant – her husband and son as her Legal Representatives. The Mortgagor Sadagopachariar died leaving the third Defendant as his only heir. Fourth Defendant is the son of third Defendant. 3.In O.S.No.526/1980, case of the Plaintiff is that he purchased the Suit Property from Defendants 3 and 4 on 31.08.1979. As per the recitals of the Sale Deed, the Plaintiff was directed to discharge Othi dated 22.02.1958 in favour of Thangamani Ammal. Further case of the Plaintiff is that after his purchase, he sent notice (Ex.A-3) to Thangamani Ammal and to the Defendants 1 and 2 demanding possession of the Suit Property, claiming benefit under Act 40/1979. D-1 has issued a Reply Notice stating that there is a Sale Agreement dated 02.12.1974. The Plaintiff has no knowledge of the Agreement of Sale and that he is a bonafide purchaser for value without notice of the Sale Agreement. Hence the Plaintiff has filed O.P.No.3/1980 for redemption and thereafter, the said Petition was dismissed as not pressed, since the Plaintiff, as purchaser of the equity of Redemption, is not entitled to the benefits under the said Act. Hence the Plaintiff has filed O.P.No.3/1980 for redemption and thereafter, the said Petition was dismissed as not pressed, since the Plaintiff, as purchaser of the equity of Redemption, is not entitled to the benefits under the said Act. Inspite of lawyer's notice, Defendants 1 and 2 had failed to deliver possession of the Suit Property after receiving the Othi amount. Hence the Plaintiff has filed the suit for redemption and for future mesne profits. 4.First Defendant has filed the Written Statement contending as:- Thiruvengadachariar – D-3, S/o Sadagopachariar has executed an Agreement of Sale in writing on 02.12.1974 with the consent of his father. In the recitals of the Sale Agreement, it was agreed that D-1 should discharge the Othi dated 22.02.1958 and the amount payable towards the Mortgage Deed dated 24.07.1963 was also to be adjusted. The third Defendant and his father should execute the registered Sale Deed on or before 05.02.1975. In furtherance of the Sale Agreement, D-1 gave up his claim under the Mortgage Deed (Ex.B-2). D-1 has been in possession of the Suit Property pursuant to the Agreement of Sale. Thereafter, he has spent amount in reclaiming the Suit Property. His acts of possession are only in furtherance of the Agreement of Sale. D-1 was always ready and willing to perform his part of the contract. Inspite of his readiness, D-3 had failed to execute the Sale Deed as per the Agreement and his whereabouts were actually not known to D-1. Since D-1 is already in possession of the Suit Property, the Plaintiff is not entitled for redemption of the mortgage and for future mesne profits. 5.D-1 has filed the additional Written Statement contending that he is entitled to defend his possession under Section 53 of the Transfer of Property Act, since he is in possession of the Suit Property in part performance of the Contract of Sale. 6.On the above pleadings, five issues and one additional issue were framed in the trial Court. In consideration of the evidence, the trial Court found that the Plaintiff would be entitled for redemption and mesne profits. The learned District Munsif inter-alia found that :: * Othi amount payable by the original owner is Rs.300/- and that the Plaintiff would be entitled to redeem the Othi; * Plaintiff is a bonafide purchaser for value without notice of the Agreement of Sale in favour of D-1 by D-3 - Thiruvenkadachariar. The learned District Munsif inter-alia found that :: * Othi amount payable by the original owner is Rs.300/- and that the Plaintiff would be entitled to redeem the Othi; * Plaintiff is a bonafide purchaser for value without notice of the Agreement of Sale in favour of D-1 by D-3 - Thiruvenkadachariar. * since D-1 has not paid the entire Sale Consideration under the Agreement of Sale, D-1 is not entitled to the protection of his possession under Section 53-A of the T.P.Act. Possession of D-1 is not in part performance of the Agreement of Sale and his possession cannot be protected by the order of the Court; * possession of the Suit Property by D-1 is only in his capacity as the heir of the Othidar and not as an agreement holder. On the above findings, the learned District Munsif decreed the suit and passed the final decree of redemption. 7.Against the Judgment and Decree in O.S.No.526/1980, the first Defendant has preferred appeal A.S.No.8/1982 before the Sub Court Srivilliputhur. When the appeal was preferred, in the same Sub Court, Srivilliputhur, D-1 has filed O.S.No.53/1983 for Specific Performance of Contract on the basis of the Agreement of Sale and for Permanent Injunction. Case of the first Defendant is that third Defendant Thiruvenkadachariar has executed an Agreement of Sale in favour of D-1 on 02.12.1974, for a consideration of Rs.1,500/-. For discharging Rs.3,00/-, secured by Othi and Rs.200/- towards the Mortgage Deed dated 24.07.1963 and after receiving Rs.250/- as advance by D-3, balance of Rs.750/- was agreed to be paid before the Sub Registrar on 05.02.1975, at the time of the execution of the Sale Deed. D-1 was always ready and willing to perform his part of the Contract and get the Sale Deed executed. But the third Defendant has not executed the Sale Deed and absconded. His whereabouts were not known. In collusion with the Plaintiff, D-3 had executed the Sale Deed in favour of the Plaintiff on 31.08.1979 and the Redemption suit in O.S.No.526/1980 filed by the Plaintiff was decreed and pending appeal. The Plaintiff, as purchaser, knew about the earlier transactions and also about the Agreement of Sale and the Plaintiff is not a bonafide purchaser for value. In collusion with the Plaintiff, D-3 had executed the Sale Deed in favour of the Plaintiff on 31.08.1979 and the Redemption suit in O.S.No.526/1980 filed by the Plaintiff was decreed and pending appeal. The Plaintiff, as purchaser, knew about the earlier transactions and also about the Agreement of Sale and the Plaintiff is not a bonafide purchaser for value. On the above averments, D-1 has filed the suit O.S.No.53/1983 for Specific Performance and for Permanent Injunction restraining the Plaintiff and others from interfering with his possession of the Suit Property in part performance of the Agreement of Sale. 8.Thiruvengadachariar (D-3) did not contest the suit. However, he has filed Written Statement contending that the Plaintiff should prove the discharge of the mortgage. D-3 denied the Agreement of Sale dated 06.12.1974 and in any event, the claim on the Agreement of Sale is barred. Time for performance of contract was not extended by D-3 or his father. D-3 had sold the property to the Plaintiff on 31.08.1979 for Rs.6,000/-, which is true and valid. D-1 was never willing to purchase the property. He was not in possession of the property in Part Performance of the Agreement of Sale. The claim is barred by Limitation. 9.The purchaser - Plaintiff Shanmugam (who is D-3 in O.S.No.53/1983) has filed the Written Statement contending that D-1 is not entitled to any relief. Plaintiff Shanmugam is a bonafide purchaser for value, without Notice of the Sale Agreement. Since O.S.No.526/1980 – suit was decreed for redemption, the Plaintiff cannot seek for Specific Performance. 10.On the above pleadings, the trial Court framed five issues. By concurrent findings, the Courts below found that D-1 is not entitled to the relief of Specific Performance; but decreed the suit for Permanent Injunction. Since O.S.No.526/1980 – suit was decreed for redemption, the Plaintiff cannot seek for Specific Performance. 10.On the above pleadings, the trial Court framed five issues. By concurrent findings, the Courts below found that D-1 is not entitled to the relief of Specific Performance; but decreed the suit for Permanent Injunction. The Courts below have inter-alia recorded the concurrent findings : * that the Othi in favour of Thangamani Ammal had been discharged by D-1 and D-1 is in possession of the Suit Property in his own way in pursuance of the Agreement of Sale; * Plaintiff was put on notice about the Agreement of Sale and that the Plaintiff is not a bonafide purchaser for value; * The Agreement of Sale in favour of D-1 is barred by limitation and D-1 is not entitled to the relief of Specific Performance; * D-1 is in possession of the Suit Property only in Part Performance of the Contract and that his possession is to be protected by Permanent Injunction. 11.Aggrieved over the granting of Permanent Injunction by the Courts below, the Purchaser – Shanmugam has filed S.A.No.1245/1986. S.A.No.1245/1986 is admitted on the following substantial questions of law :- 1.Whether the Plaintiff can claim the benefit of Section 53-A when he obtained joint possession along with his son as heir of the mortgagee long after the agreement of sale ? 2.Whether the Courts below can grant Permanent Injunction after dismissing the suit for specific performance ? 3.Whether the notice of time barred agreement deprives the subsequent purchaser the claim of a bonafide purchaser for value ? 12.The Second appeal S.A.No.348 of 1984 was admitted on the following substantial questions of law: - 1.Whether the mortgage under Ex.B-1 stood discharged by operation of law ? 2.Whether the first Defendant, having obtained possession as heir to the mortgagee, can claim protection under Section 53-A of the Transfer of Property Act ? 3.Whether mere notice of the agreement of sale not subsisting in 1979 is sufficient to deprive the Plaintiff of the benefit of the proviso to Section 53-A of the Transfer of Property Act ? 2.Whether the first Defendant, having obtained possession as heir to the mortgagee, can claim protection under Section 53-A of the Transfer of Property Act ? 3.Whether mere notice of the agreement of sale not subsisting in 1979 is sufficient to deprive the Plaintiff of the benefit of the proviso to Section 53-A of the Transfer of Property Act ? 13.Contending that the Appellate Courts have committed serious and substantial error in dismissing the suit for redemption and granting Permanent Injunction to the first Defendant, who claims the benefit of Section 53-A of the Transfer of Property Act, the learned Senior Counsel for the Appellants has interalia made elaborate submissions :: * D-1, who is only Agreement Holder, who has no title to the property, has no right to redeem the mortgage. Even assuming that the mortgage has been redeemed by the Agreement Holder, the alleged redemption cannot be taken note of legally; * the alleged discharge of Othi and redemption by D-1 has not been established. There are atleast four inconsistent versions regarding the alleged discharge of Othi and payment of money to D-1's wife; * the contention that by Ex.B-3 – Agreement of Sale and by the acts of parties, the Othi has been discharged, was neither pleaded nor proved. To prove that there had been discharge, pursuant to Ex.B-3 – Agreement of Sale, there is no endorsement of discharge in Ex.B-1 – Othi; * D-1 is only an Agreement Holder and his right is only an inchoate right, which would get crystalised only when the Registered Sale Deed is executed; * possession of the Respondent is referable only as heir of mortgagee and not under the Agreement. 14.On the above contentions, the learned Senior counsel placed reliance upon a number of decisions and contended that the Courts below have erroneously found that the possession of D-1 is referable to the Agreement of Sale. It is further contended that Ex.B-3 – Agreement of Sale was not enforceable after five years and when the Courts below have dismissed the suit for Specific Performance on the ground of Limitation, granting of Permanent Injunction in favour of the time barred Agreement Holder cannot be sustained. 15.Countering the arguments, the learned counsel for the first Defendant has contended that Ex.B-1 - Othi has ceased to exist and the possession of D-1 is referable only to Ex.B-3 - Agreement of Sale. 15.Countering the arguments, the learned counsel for the first Defendant has contended that Ex.B-1 - Othi has ceased to exist and the possession of D-1 is referable only to Ex.B-3 - Agreement of Sale. It is mainly contended that when D-1's possession is protected under Section 53-A of Transfer of Property Act, the Courts below have rightly granted the relief of Permanent Injunction. Laying emphasis upon the recitals in Ex.B-3 – Agreement of Sale, directing the first Defendant to pay the Othi amount and the mortgage amount under Ex.B-2 and to adjust the amount, the learned counsel for the first Defendant has interalia made the following submissions :: * pursuant to the recitals in Ex.B-3 – Agreement of Sale, Othi has been discharged; * redemption of the othi/mortgage involves discharge of the mortgage debt and reciprocally delivery of possession by the Othidar. In the instant case, possession of Othidar - Thangamani Ammal has gone into the hands of her husband D-1 – Agreement Holder; * Plaintiff is not a bonafide purchaser for value and hence possession of D-1 is to be protected under Section 53-A of the TP Act. Under Section 53A of the T.P.Act, protection would be provided when the Plaintiff and Defendant seek for protection of possession. It is further contended that in any event, payment of mortgage amount to the mortgagee by a volunteer would result in the discharge or extinction of the mortgage. In support of his contention, the learned counsel for the first Defendant has relied upon a number of decisions. 16.In consideration of the impugned Judgment and the arguments advanced, during the course of arguments, the following additional Substantial Questions of Law were formulated: - (i)Whether Ex.B-3 – Agreement of Sale resulted in discharge of Ex.B-1 - Othi or in other words, whether the right of redemption is extinguished pursuant to Ex.B-3 – Agreement of Sale; (ii)Whether the Agreement Holder under Ex.B-3 – Time Barred Agreement can claim protection under Section 53-A of the T.P.Act? 17.Under Ex.A-1 – Sale Deed (31.08.1979), the vendor - D-3 had directed the Plaintiff to discharge Ex.B-1 - Othi dated 22.02.1958. Plaintiff having interest in the Suit Property, as a purchaser, is entitled to maintain the suit for redemption. 17.Under Ex.A-1 – Sale Deed (31.08.1979), the vendor - D-3 had directed the Plaintiff to discharge Ex.B-1 - Othi dated 22.02.1958. Plaintiff having interest in the Suit Property, as a purchaser, is entitled to maintain the suit for redemption. Othi Deed in respect of which redemption has been prayed for is Ex.B-1 dated 22.02.1958 executed by Sadagopachariar – father of D-3, in favour of Thangamani Ammal, wife of D-1, for Rs.300/-. Thangamani Ammal died on 06.05.1977. D-1 contested the suit for redemption on the ground that he has been in possession of the Suit Property not as the legal heir of the Othidar, but as an Agreement Holder, under Ex.B-3 – Agreement of Sale, dated 02.12.1974, executed by D-3 in his favour. In O.S.No.53/1983 and A.S.No.137/1984, the Courts below concurrently found that Ex.B-1 - Othi had been discharged and that D-1 is in possession of the Suit Property only pursuant to Ex.B-3 – Agreement of Sale. Tracing possession of D-1 to Ex.B-3 - Agreement of Sale, the Courts below laid emphasis upon Ex.B-3 for granting relief of Permanent Injunction and affording protection under Section 53-A of the T.P.Act. 18.In that context that the Courts below have referred the possession of D-1 to Ex.B-3 – Agreement of Sale, we need to bear in mind few important aspects. In Ex.B-3 – Agreement of Sale, it was stipulated that D-3 and his father are to execute the Sale Deed on or before 05.02.1975. Out of the total sale consideration of Rs.1,500/-, a sum of Rs.250/- was paid to D-3 on the date of Agreement. As per the recitals, D-1 is to discharge the Othi amount Rs.300/- and also to give up his claim under the Registered Mortgage Deed dated 24.07.1963 (Rs.200/-). Balance sale consideration of Rs.750/- should be paid to the executant before 05.02.1975. In A.S.No.137/1984, the Appellate Court has observed that Sadagopachariar was postponing the execution of the Sale Deed. It is relevant to note that D-1 has not pursued the agreement for a long time. Time for performance was fixed as 05.02.1975. Though the first Defendant is said to have written Ex.B-7 - Letter in 1977, the first Defendant has not chosen to file the suit for Specific Performance for nearly five years thereafter. Ex.A-1 - Sale Deed was executed by D-3 in favour of the Plaintiff on 31.08.1979. Plaintiff has sent Ex.A-3 - Notice on 11.09.1979. Though the first Defendant is said to have written Ex.B-7 - Letter in 1977, the first Defendant has not chosen to file the suit for Specific Performance for nearly five years thereafter. Ex.A-1 - Sale Deed was executed by D-3 in favour of the Plaintiff on 31.08.1979. Plaintiff has sent Ex.A-3 - Notice on 11.09.1979. Ex.A-4 - Reply was sent by D-1 on 15.09.1979. O.S.No.526/1980 was filed in the Court on 20.11.1980. The suit was decreed on 23.12.1981. Till that time, no suit was filed for Specific Performance. Even in O.S.No.520/1986, the defence of claiming benefit under Section 53-A of T.P.Act and the Part Performance, was pleaded only by way of additional Written Statement. 19.Against the Judgment and Decree in O.S.No.526/1980, A.S.No.8/1982 was filed in the Sub Court, Srivilliputhur. Only at that time, O.S.No.53/1983 (O.S.No.265/1982) was filed for Specific Performance, on 23.04.1982. Even in the suit, the relief was for Permanent Injunction and the Specific Performance was sought for only as an alternative prayer. Ex.A-3 is a time barred Agreement. The inordinate delay in filing the suit for Specific Performance assumes importance. Since Ex.B-3 – Agreement is time barred, both the Courts have concurrently held that D-1 is not entitled for the relief of Specific Performance. Since the Courts below have referred the possession of D-1 to the time barred Agreement of Sale and the Judgment of the Appellate Court in A.S.No.8/1982 is demonstrably erroneous, it has become necessary to reappreciate the entire evidence and the conduct of the parties. 20.The Courts below have held that D-1 – Agreement Holder was entitled to redeem the Othi and thereby taken erroneous view on the substantial question of law. Power under section 100 CPC is very peculiar. It is neither wide as under Section 96 CPC, nor restricted as under Section 115 CPC. When the Courts below have committed serious and substantial error, the Court could make a fresh appraisal of the evidence and arrive at a different conclusion. The High Court must always be alive to the situation that in the interest of justice, it would be necessary not to ignore improper appreciation of evidence or to turn a blind eye to the glaring misreading or drawing impermissible inferences committed by the Subordinate Courts and the High Court could reappraise the evidence. The High Court must always be alive to the situation that in the interest of justice, it would be necessary not to ignore improper appreciation of evidence or to turn a blind eye to the glaring misreading or drawing impermissible inferences committed by the Subordinate Courts and the High Court could reappraise the evidence. 21.Meaning of 'Substantial Question of Law' and the question of interference in the second appeal, is well settled by catena of decision. It is well settled that interference with the concurrent findings of the Courts below by the High Court under Section 100 CPC must be avoided. Unless warranted by compelling reasons, in the Second Appeal, scrutiny of evidence is not totally prohibited. However, it is permissible in exceptional circumstances and upon proper prospection :- * where the findings of the lower Court are based on misleading of evidence or based on no evidence, the High Court would be justified in interfering in the Second Appeal. * Where the decision of the first Appellate Court is perverse and the same is liable to be set aside in the second appeal. [AIR 200 SC 1283; AIR 2000 SC 2108 ]. 22.Since D-1 is only an Agreement Holder, certain legal aspects emerge in the light of which, contentious points are to be appreciated. * under Section 54 of T.P.Act, a contract for the sale of immovable property does not of itself create any interest in or charge of such property. * as held in AIR 1967 SC 744 [Rambaran Vs. Ram Mohit], the contract of sale does not create any interest in land, in view of Section 54 of T.P.Act. * it is only merely a document creating a right to obtain another document. * the transaction is still at the stage of contract. Even if he has paid the price or part of the price and even if he is alleged to have taken possession, the right of the Agreement Holder is nebulous. Bearing in mind the above legal aspects, we are to proceed to consider the matter. 23.Case of the Plaintiff is that D-1 is in possession of the Suit Property as the legal heir of Thangamani Ammal and only the interest of Othidar devolved upon D-1. Per contra, case of the first Defendant is that he is in possession of the Suit Property pursuant to Ex.B-3 - Agreement. 23.Case of the Plaintiff is that D-1 is in possession of the Suit Property as the legal heir of Thangamani Ammal and only the interest of Othidar devolved upon D-1. Per contra, case of the first Defendant is that he is in possession of the Suit Property pursuant to Ex.B-3 - Agreement. Be it noted that there is no recital in Ex.B-3 – Agreement stating about the handing over of possession. 24.Ex.B-3 - Agreement has been executed by Thiruvenkadachariar, S/o Sadagopachariar. There is no evidence as to the date of death of Sadagopachariar. The evidence shows that Sadagopachariar was alive in 1977. Even during the life time of Mortgagor - Sadagopachariar, his son D-3 is said to have executed Ex.B-3 - Agreement of Sale. In O.S.No.526/1980, Plaintiff/Purchaser has taken a stand denying the genuineness of Ex.A-3. But Ex.A-3 - Agreement of Sale is self writing by D-3 – Rg!;jypfpjk;/ Pointing out the same and the later correspondence between D-1 and D-3 in O.S.No.526/1980, the learned District Munsif found that Ex.A-3 - Agreement of Sale is a genuine one. Though there could be no denying that Ex.B-3 - Agreement of Sale was executed by D-3, there is no explanation as to why D-1 has not approached Sadagopachariar in person for completion of the Transaction. There appears to be inaction on the part of the first Defendant during the interregnum period 1975 to 1977. 25.Be that as it may, under Section 60 of the T.P.Act, at any time after the principal amount has become due, the Mortgagor has a right to redeem the mortgaged property, provided that the right conferred under Section 60 of the T.P.Act has not been extinguished by act of the parties or decree of a Court. In this case, the mortgagor has not filed the suit for redemption. Purchaser from the Mortgagor's son has filed the suit. Section 91 of the T.P.Act deals with the person who may sue for redemption. Under Section 91 of the T.P.Act and Order 34 CPC, besides the mortgagor, any person who has any interest in, or charge upon, the property mortgaged or in or upon right to redeem the same. Under Ex.A-1 - Sale Deed, the Plaintiff has purchased the Suit Property. Under Section 91 of the T.P.Act and Order 34 CPC, besides the mortgagor, any person who has any interest in, or charge upon, the property mortgaged or in or upon right to redeem the same. Under Ex.A-1 - Sale Deed, the Plaintiff has purchased the Suit Property. In the recitals in Ex.A-1, it is enjoined upon the Plaintiff to redeem the Othi, as is clear from the following: "_tpy;ypg[j;J}h; S.R.O Mgprpy; 1/992/309/334-1958 ePuhf U:/300-= (U:gha; Kd;D}Uf;F) vGjpf;bfhLj;J xj;jpg; gj;jpuj;jpw;F ehsJ njjp tiu ahbjhU bjhifa[k; brYj;jhjdhy; jh';fns bry; vGjp K:l;o Mjut[ bgUjy; trk; epWj;Jjy; U:/300-= (U:gha; Kd;D}Wf;F)/" As per the recitals and by virtue of Section 60 and 91 of the T.P.Act, the Plaintiff is entitled to maintain the suit for redemption, provided the right of Redemption has not been extinguished by the act of the parties. By virtue of Section 60 and Section 91 of the T.P.Act, the right of redemption is a statutory right. The right of redemption being a statutory right cannot be extinguished unless by the act of parties or by decree of the Court. (Proviso to Section 60 T.P.Act) 26.In the suit for redemption, D-1 pleads discharge. According to D-1, Ex.B-3 – Sale Agreement has resulted in the discharge of the suit Othi. Ex.B-3 is the Agreement of Sale by D-3 – Thiruvengadachariar in favour of D-1, agreeing to sell the Suit Property for a total sale consideration of Rs.1,500/-. Ex.B-3 shows the payment of advance of Rs.250/- and Rs.300/- towards suit Othi and another sum of Rs.200/- towards the mortgage amount payable to the first Defendant. Under Ex.B-3, remaining sum of Rs.750/- is payable before 05.02.1975. The main contention advanced by the first Defendant is that the Othi amount in Ex.B-3 Agreement, is shown as of having been set off in Ex.B-3, as an item of consideration. Under Ex.B-3, remaining sum of Rs.750/- is payable before 05.02.1975. The main contention advanced by the first Defendant is that the Othi amount in Ex.B-3 Agreement, is shown as of having been set off in Ex.B-3, as an item of consideration. In support of his contention, emphasis is laid upon the following recitals in Ex.B-3 - Agreement of Sale :: "v';fSf;F g{h;tPfkha; ghj;jpag;gl;L eh';fs; mDgtpj;J tUfpw jgrpy; brhj;ija[k; mjd; rfy ghj;jpa';fshdJ ehsJ njjpapy; j';fSf;F U:.1500 (U:gha; Mapuj;J IE}W) ngrp ml;thd;rhf bgw;Wf; bfhz;lJ U:/250-= (U:gha; ,UE}w;wpak;gJ kl;Lk;) ,jw;F Kd; j';fspd; kidtp tp/j';fkzp mk;khSf;F 22/02/1958 y; vGjpf;bfhLj;J U:/300-= jfg;gdhuhy; th';fg;gl;lJ/ (1)24/07/1965 e; njjpapy; vd; jfg;gdhuhy; mlkhdk; bgahpy; th';fpf; bfhz;LJ U:/250-=/ (2) Mf bkhj;jk; U:/500/- ml;thd;rhf ehsJ njjpapy; bgw;Wf; bfhz;lJ U:/250-=/ ,J nghf v';fSf;F ju ntz;oa U:/750-=a[k; tUfpw 1975 k; tUlk; gpg;uthp 5k; njjpf;Fs; 5/2/1975 fpiuak; vGjpf;bfhLj;Jtpl;L cah;jpU rg;hp$p!;jh; Kd;dpiyapy; U:/750-= a[k; bgw;Wf; bfhs;ntdhft[k;" 27.The contention now advanced is, by the above recitals adjusting of deduction of Rs.300/-, the Othi is discharged because the Othidar was none else than the wife of D-1 – Agreement Holder. The learned counsel for D-1 has further submitted that just as Ex.B-2 - Mortgage amount payable by D-1 unto himself has shown as set off in Ex.B-3, in natural sequence Othi amount payable to the first Respondent wife was also set off in Ex.B-3 – Agreement as an item of consideration. It is the further contention that the Plaintiff being the third party to the Sale Agreement of Othi, the Plaintiff – the purchaser could have no say in the manner of set off intended by the parties in Ex.B-3 Sale Agreement to set off the suit Othi amount. It is also contended that Thangamani Ammal being the wife of D-1, no separate proof of discharge of Othi is required. It is urged that since Ex.B-3 Agreement discharged the Othi, there is no other right or redemption for the Plaintiff to seek for and hence the Plaintiff is not entitled for the right of redemption. 28.The mortgage deed can come to an end only in manner known to law. In AIR 1985 SC 1646 , [Javasingh Dnyanu Mhoprekar Vs. Krisna Balaji Patil and another], the Supreme Court has held :: "The Supreme Court has held that the right of redemption under a mortgage deed can come to an end only in a manner known to law. In AIR 1985 SC 1646 , [Javasingh Dnyanu Mhoprekar Vs. Krisna Balaji Patil and another], the Supreme Court has held :: "The Supreme Court has held that the right of redemption under a mortgage deed can come to an end only in a manner known to law. Such extinguishment of the right can take place by a contract between the parties by a merger or by a statutory provision which debars the mortgagor from redeeming the mortgage. A mortgagee in possession of the property will have to deliver possession to the mortgagor when a suit for redemption is filed unless he is able to show that the right of redemption has come to an end or that a suit is liable to be dismissed on some other valid ground." 29.The right of redemption being a statutory right, cannot be extinguished except by act of the parties. In the facts and circumstances of the case, it is to be seen :- (i)whether Ex.B-1 Othi is discharged; (ii)whether the right or redemption is extinguished by the act of parties under Ex.B-3 Agreement dated 02.12.1974. Once the Othi is proved to have been discharged, the right of redemption does not arise. Hence D-1 who pleads discharge must strictly prove that Ex.B-1 - Othi has been discharged pursuant to Ex.B-3 - Agreement of Sale. It is also to be proved that pursuant to Ex.B-3 - Agreement there was discharge of Othi and right of redemption has come to an end. 30.Discharge can only be under the manner known to law. Regarding the alleged discharge of Othi, D-1 has atleast four versions. In his evidence, PW-1 has stated that "xj;jpf;F nru ntz;oa gzk; vd; kidtpf;F bfhLj;J tpl;nld;". But DW-1 does not clearly state when he has paid the amount. In paragraph No.5 of the Written Statement, it is alleged that Othi was discharged on 15.08.1975. Whereas in Ex.A-4 – Reply Notice, D-1 has stated that the Othi was discharged on the date of Agreement of Sale i.e. on 02.12.1974. The early evidence and the pleadings in the Written Statement and the earlier statement made in Ex.A-4 - Statement are inconsistent regarding the actual date of discharge of Othi. The trial Court has rightly disbelieved the alleged discharge of Othi, taking note of the inconsistent versions regarding the actual date of discharge of Othi. The early evidence and the pleadings in the Written Statement and the earlier statement made in Ex.A-4 - Statement are inconsistent regarding the actual date of discharge of Othi. The trial Court has rightly disbelieved the alleged discharge of Othi, taking note of the inconsistent versions regarding the actual date of discharge of Othi. 31.It is relevant to note that in Ex.B-1 – Othi Deed, there is no endorsement of payment. Thangamani Ammal died on 06.05.1977. Ex.B-1 – Othi was by Sadagopachariar whereas Ex.B-3 - Agreement of Sale was executed by his son – D-3. Under such circumstances, though the Othidar is the wife of D-1 – Agreement Holder, he is reasonably expected to get an endorsement of discharge in Ex.B-1 - Othi. The trial Court has rightly found that if really the Othi was discharged, Ex.B-1 must bear an endorsement of discharge. Without proper appreciation of the inconsistent version and the absence of endorsement of discharge in Ex.B-1, the lower Appellate Court erred in finding that the Othi was discharged. 32.The main contention advanced is that as Ex.B-2 - Othi amount payable by D-1 and himself, is shown as set off in Ex.B-3, as an item of consideration, and in natural sequence, Othi amount payable to D-1's wife was also set off in Ex.B-3 - Agreement, which according to D-1 is the discharge by adjustment. On this score, it is submitted that no specific endorsement is required and the formal adjustment of sale consideration towards the Othi is sufficient. Absolutely there is no plea in the Written Statement that by the act of the parties, Othi has been discharged. On the other hand, in the Written Statement, it is only stated that it was agreed that D-1 should discharge the Othi dated 22.02.1958 and that he has discharged the Othi on 15.08.1975. Only case pleaded by D-1 in the Written Statement was 'discharge by payment'. There is no plea regarding the discharge of Othi by adjustment as per the Agreement of Sale. Such version was not even put forth during the trial. 33.The question of adjustment does not arise, since the Agreement Holder and the Mortgagee are different. Though the are husband and wife, they are different entities. Equally, Ex.B-3 - Agreement does not authorise D-1 to redeem the Othi. Such version was not even put forth during the trial. 33.The question of adjustment does not arise, since the Agreement Holder and the Mortgagee are different. Though the are husband and wife, they are different entities. Equally, Ex.B-3 - Agreement does not authorise D-1 to redeem the Othi. When the Agreement of Sale does not authorise the Agreement Holder to discharge the Othi and the Mortgagee being a different person, the question of adjustment does not arise. 34.Admittedly, there is no endorsement in Ex.B-1 Othi. There is no acknowledgement of receipt of money by the mortgagee – Thangamani Ammal. From the evidence on record, it comes to be known that D-1's wife Thangamani Ammal was working as a teacher in Panchayat Union School. She was in the habit of writing diary. Ex.B-10 is the Diary for the year 1976. As seen from Ex.B-10, some endorsement has been made regarding the payment of amount to the third parties, and also receipt of amount from others. If really D-1 has paid the amount due under Ex.B-1 - Othi to his wife, Thangamani Ammal would have made an entry in the diary maintained by her during the relevant time. But D-1 had not produced the diary maintained by Thangamani Ammal either for the period 1974 or 1975. It is not the case of D-1 that since the Othidar and the Agreement Holder are closely related, Ex.B-1 was taken as discharged without paying the amount. But on the other hand, it is the definite case of D-1 that even though the Othidar was is wife, he paid cash of Rs.300/- in order to discharge Ex.B-1, in pursuance of Ex.B-3. If that be so, D-1 must prove at what point of time he had discharged the Othi. The inconsistent versions only falsify the alleged discharge of Othi by payment of Othi amount. There is no proof of discharge by payment, pursuant to Ex.B-3 – Agreement. Hence the extinction of the right of redemption conferred under Section 60 T.P.Act has not been proved. 35.These aspects were not at all appreciated in proper perspective by the first Appellate Court. The first Appellate Court has not at all considered whether Othi was discharged. There is no proof of discharge by payment, pursuant to Ex.B-3 – Agreement. Hence the extinction of the right of redemption conferred under Section 60 T.P.Act has not been proved. 35.These aspects were not at all appreciated in proper perspective by the first Appellate Court. The first Appellate Court has not at all considered whether Othi was discharged. Without going into the oral and the documentary evidence, the lower Appellate Court found that "vdnt xj;jp jPh;e;j fhykhfpa 6/5/1977y; ,Ue;J 1k; gpujpthjpna fpiua xg;ge;jj;jpd; mog;gilapy; tHf;fpil brhj;ij mDgtpj;J tUfpwhh; vd;gJ ed;F tps';Fk;/" Without proper analysis of the varying versions, the lower Appellate Court accepted the ipse dixit of DW-1 that pursuant to Ex.B-3 – Agreement, Othi amount of Rs.300/- was given to his wife – Othidar and the Othi had been discharged. The strict proof of discharge of Othi and extinction of right of Redemption was not carefully analysed by the lower Appellate Court. There is also inconsistency in the findings of the lower Appellate Court. At one stretch, the lower Appellate Court has found that the right of Othi devolved upon D-1 "1k; gpujpthjp mtUila Tl;Lf; FLk;gj;jpd; fh;j;jh Mthh;/ vdnt. j';fkzp mk;khSf;F gp/rh/M/1 go cs;s xj;jp ghj;jpaj;ij thhpRKiwapy; 1k; gpujpthjpf;F fpilf;f cs;sJ". Contrary to its own findings, the lower Appellate Court further held that D-1 is in possession only pursuant to Ex.B-3 Agreement of Sale. Finding of the lower Appellate Court "vdnt 06/05/1977 Kjy; 1k; gpujpthjp xj;jpjhh; Kiwapy; mDgtpf;ftpy;iy/ Mdhy; fpiua xg;ge;j mog;gilapy; jhd; mDgtpj;J tUfpwhh;" is inconsistent and palpably erroneous. 36.Misreading of evidence and perversity of the reasonings of the first Appellate Court is manifest from its findings, "vdnt 1k; gpujpthjpapd; kidtp j';fkzp mk;khs; ,we;j gpwF 1k; gpujpthjp fpiua xg;ge;j mog;gilapy; jhd; tHf;fpilr; brhj;ij mDgtk; bra;J. mjpy; ku';fis btl;oa[s;shh;". At one stretch PW-1 has stated "ehd; kidtpf;F xj;jpg;gzj;ij brYj;jp xj;jpia kPl;nld;/" In another stretch he has stated "xj;jpjhh; Kiwapy; vd; kidtpa[k; mth; ,we;jgpd; ehd; fpua xg;ge;jg;goa[k; mDgtpj;J tUfpnwhk; ///". Case of the first Defendant is that he has paid the Othi Amount and that Othi was discharged and he continued to be in possession of the property in pursuance of the part performance of the Contract. Without proper appreciation of varying versions, the lower Appellate Court has erred in reversing the well considered Judgment of the trial Court. Case of the first Defendant is that he has paid the Othi Amount and that Othi was discharged and he continued to be in possession of the property in pursuance of the part performance of the Contract. Without proper appreciation of varying versions, the lower Appellate Court has erred in reversing the well considered Judgment of the trial Court. The lower Appellate Court has committed a serious and substantial error in brushing aside the tell tale circumstances that there was no endorsement of discharge in Ex.B-1 – Othi Deed and inconsistent versions of D-1 on the alleged discharge of Othi. 37.Let us assume for the sake of arguments that D-1 has paid the amount of Rs.300/- to the Othidar – his wife Thangamani Ammal. The main question that arises for consideration is, can that payment of amount would result in extinguishment of right of redemption ? 38. Whether Agreement Holder is entitled to Redeem Othi :- Section 91 of Transfer of Property Act deals with the persons who may redeem or institute a suit for redemption. Under Section 91 of T.P.Act, "(a)any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same." Under Section 54 of the T.P.Act, a contract for the sale of immovable property does not of itself create any interest in or charge on such property. Agreement Holder who is contracted to by the land has no interest in the immovable property and has no right to redeem the mortgage. 39.The reason is obvious. Under Section 60 of the T.P. Act, on redemption of mortgage, mortgagee is under certain obligations towards the Mortgagor, viz., the delivery of possession of property, documents etc. As per Section 92, any person referred to in Section 91, redeeming property has the right of subrogation. The person redeeming is substituted for the mortgagor – that person making the payment shall exercise the right of power of the original creditors. Section 92 reads :- Subrogation.- Any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagor whose mortgage he redeems may have against the mortgagee or any other mortgagee. Section 92 reads :- Subrogation.- Any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagor whose mortgage he redeems may have against the mortgagee or any other mortgagee. The right conferred by this Section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems." The question arises – Can an agreement holder have such right of mortgagor to redeem, having the right of subrogation ? The Courts below have neither understood this vital legal aspect, nor there is proper appreciation of the same. 40.Section 60 of the T.P.Act deals with the right of the mortgagor to redeem. When the mortgagor exercises the right of redemption, tendering money to redeem the mortgage, valuable rights emerge under Section 60. At any time, after the principal money has become due, the mortgagor has a right and on payment or tendering of the mortgage money, the Mortgagor would have the right against the Mortgagee. As per Section 60 of the T.P.Act, the Mortgagor would have the following rights: "(a)to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession relating to the mortgaged property which are in the possession or power of the mortgagee; (b)where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor; and (c)at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument)." 41.Can the Agreement Holder, who has only contracted to buy, seek deliverance of documents relating to the mortgaged property ? Can the Agreement Holder seek delivery of Possession ? Can the Agreement Holder seek retransfer of property to him ? Certainly not. Onbehalf of the first Defendant, it is contended that there is no proposition or authority stating that the Agreement Holder cannot discharge the Mortgage. Can the Agreement Holder seek delivery of Possession ? Can the Agreement Holder seek retransfer of property to him ? Certainly not. Onbehalf of the first Defendant, it is contended that there is no proposition or authority stating that the Agreement Holder cannot discharge the Mortgage. It is the further contention of D-1 that it is not the question of entitlement to tender the mortgage amount but only the question of payment of mortgage amount, which is only a question of fact. This contention has no merits. 42.Right of the Agreement Holder being inchoate, cannot claim to have possession of the immovable property and the documents of title. Under the Agreement, his right being inchoate, right gets crystallised only when the registered Sale Deed is executed. There is no statutory right to legally discharge the mortgage. Even if D-1 has paid the amount, it has not resulted in extinguishing the right of redemption. This is all the more so, when mortgagor Sadagopachariar has not executed the Agreement of sale in favour of D-1. 43.A Mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a Registered Deed. Explaining the conditions under which such right can be extinguished, in 1977 (3) SCC 247 [Narandas Karsondas V. S.A.Kamtam And Another], the Supreme Court has held: "32.A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein. ............ 35.The mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. In England a sale of property takes place by agreement but it is not so in our country. The power to sell shall not be exercised unless and until notice in writing requiring payment of the principal money has been served on the mortgagor. In England a sale of property takes place by agreement but it is not so in our country. The power to sell shall not be exercised unless and until notice in writing requiring payment of the principal money has been served on the mortgagor. Further Section 69(3) of the Transfer of Property Act shows that when a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no ease had arisen to authorise the sale. Therefore, until the sale is complete by registration the mortgagor does not lose right of redemption." 44.In the above observation, the Supreme Court has approved the decision in AIR 1944 Bombay 156, observing, "the decision in Abraham Ezra Issac Mansoor v. Abdul Latif Usman, is correct law that the right to redeem a mortgage given to a mortgagor under Section 60 of the Transfer of Property Act, is not extinguished by a contract of sale of the mortgaged property entered into by a mortgagee in exercise of the power of sale given to him under the mortgage deed. Until the sale is completed by a registered instrument, the mortgagor can redeem the mortgage on payment of the requisite amount." 45.The principle laid down by the Supreme Court that the Mortgagor has a right to redeem unless the sale of the property was complete by registration in accordance with the provisions of Registration Act is not applicable to the case in hand. To the same proposition, the learned Senior Counsel for the Appellant has also relied upon AIR 1937 Madras 293 [Ellappa Naicker and others Vs.Sivasubramanian Maniagaram]. 46.The learned counsel for D-1 sought to distinguish the above decisions contending that the decisions AIR 1937 Madras 293, AIR 1944 Bombay 156 and 1977 (3) SCC 247 are not the voluntary sale, but Exproprietary sale, falling under Section 69 TP Act. It was contended that AIR 1937 Madras 293 was a case of Revision by a prior Mortgagee, who came forward to discharge subsequent mortgage, in which the property was auctioned in the Auction Sale. Since the decisions refers to the Court auction sale, it was not completed by Registered Deed of conveyance, which left the right of the parties to redeem under Section 60 of T.P.Act, intact. Since the decisions refers to the Court auction sale, it was not completed by Registered Deed of conveyance, which left the right of the parties to redeem under Section 60 of T.P.Act, intact. It is contended that such Exproprietary sale is not involved in the case in hand, where the right of redemption is extinguished by the Act of parties by entering into agreement of sale which resulted in discharge of Othi. 47.The contention that right of redemption has been extinguished by the Act of the parties was neither pleaded nor proper evidence adduced on this aspect. In the Courts below, the only case pleaded in the Written Statement was one of discharge by payment. There is no plea, nor evidence regarding Othi being discharged by act of parties as per the Agreement of Sale. Having neither pleaded nor adduced evidence, it is not open to the first Defendant to plead adjustment and contended that the right under Section 60 of T.P.Act has been extinguished by the act of the parties. Onbehalf of D-1, it is contended that though Section 91 T.P.Act gives list of persons who may redeem a mortgage, the Act does not state any person other than those listed in Section 91 T.P.Act. If shown to have paid the mortgage amount to the mortgagee that would not result in discharge of the mortgage liability. The learned counsel for D-1 has contended that any person not listed in Section 91, if he chooses to pay the Mortgage amount to the Mortgagee, that will be deemed to be a payment by a Volunteer. It is further contended that on payment by a volunteer, and in such cases also, the payment of mortgage amount by a volunteer would result in discharge or extinguishment of the mortgage. It is contended that any payment of mortgage amount by any volunteer would also result in the discharge or extinguishment of the mortgage. 48.The learned counsel for D-1 has relied upon AIR 1996 SC 1075 (Kesavanchari Gopalakrishnan Achari V. Velu Achari Pappukutty Achari and others) wherein the Supreme Court has held :: "Where a stranger to mortgage obtains a deed of release from a mortgagee of such mortgagee's interest by paying off mortgage debt, such a stranger, does neither acquire a right of a subrogee nor of the mortgagee. Such stranger volunteering to pay off mortgage deed may have a claim in equity against the mortgagor but by such action the said stranger does not step into the shoe of the mortgagee because a deed of release executed by a mortgagee on satisfaction of mortgage debt. Only extinguishes the mortgage." The above decision does not in any way support the contention of the first Defendant. On the other hand, it only strengthens the case of the Appellant. D-1 may claim in equity for the payment of mortgage amount against the mortgagor Sadagopachariar; but he does not step into the shoes of the mortgagee. In the above decision before the Supreme Court, there was a Deed of Release executed by the Mortgagee on satisfaction of mortgage debt. In that factual context of executing Release Deed by Mortgagee to the stranger, who volunteered to pay off the Mortgage Deed, the Supreme Court has held that the mortgage is extinguished. The case in hand stands entirely on a different footing. Thangamani Ammal has not executed any such Release Deed in favour of D-1. As noted earlier, there is not even an endorsement of payment in Ex.B-1 Othi. In the absence of definite proof on the payment of Othi amount, the above decisions cannot be applied to the case in hand. 49.Placing reliance upon AIR 1963 SC 1041 (Prithi Nath Singh and others v. Suraj Ahir and others), the learned counsel for the first Defendant has contended that with the payment of mortgage money by the mortgagor, mortgage comes to an end and it cannot be said to exist, so long as the Mortgagor's right to ask the Mortgagee to perform acts mentioned in Section 60 continues. In the above decision, the Supreme Court has held as follows :: "When the mortgage money is paid by the mortgagor to the mortgagee, there does not remain any debt due from the mortgagor to the mortgagee, and therefore, the mortgage can no longer continue after the mortgage money has been paid. Further, the definition of usufructuary mortgage itself leads to the conclusion that the authority given to the mortgagee to remain in possession of the mortgaged property ceases when the mortgage money has been paid up. When the mortgage money has been paid up, no question of appropriating the rents and profits accruing from the property towards interest or mortgage money can arise. When the mortgage money has been paid up, no question of appropriating the rents and profits accruing from the property towards interest or mortgage money can arise. If the mortgage money has been received by the mortgagee and thereafter he refuses to perform the acts which he is bound to do under S.60, the mortgagor can enforce his right to get back the mortgage document, the possession of the mortgaged property and the re-conveyance of that property through court. A new right to get his demands enforced through the Court thus arises as a result of the provisions of S.60. The right to demand the mortgagee to do certain things on payment of the mortgage money is different from enforcing the demands subsequent to the payment of the money. It would not be correct to say that the right of redemption in such a case would not come to an end so long as the mortgagor's right to ask the mortgagee to perform any of the acts mentioned in S.60 continues." 50.The above decision cannot be applied to the case in hand, in view of different factual context viz.:- (i)in the case in hand, payment of mortgage money by D-1 to his wife Thangamani Ammal has not been proved; (ii)the alleged payment of mortgage money sent by Mortgagor would apply the above decisions. Hence placing reliance upon the above decision, it is not open to the first Defendant to contend that Othi has come to an end and no longer continues to exist. 51.On the first Additional substantial question of law, we may sum up the position :- * D-1 being an Agreement Holder, has no equal right and it is only an inchoate right, which gets crystallised only when a registered Sale Deed is executed; * Since Section 54 of the Act specifically provides that the Contract of Sale does not of itself create any interest in the property, D-1 being an Agreement Holder has no right to redeem the mortgage. The Agreement Holder is not a person listed under Section 91 of the T.P.Act, entitled to redeem the mortgage; * the payment of Othi Amount of Rs.300/- to Thangamani Ammal has not been satisfactorily proved; * extinguishment of right of redemption by act of parties was neither pleaded nor proved by adducing proper evidence. The Agreement Holder is not a person listed under Section 91 of the T.P.Act, entitled to redeem the mortgage; * the payment of Othi Amount of Rs.300/- to Thangamani Ammal has not been satisfactorily proved; * extinguishment of right of redemption by act of parties was neither pleaded nor proved by adducing proper evidence. D-1 and his son D-2 were in possession of the Suit Property only as the legal heirs of mortgagee Thangamani Ammal; * Plaintiff being a purchaser, stepping into the shoes of the mortgagor, has the right to redeem the Suit Property and is entitled to exercise the right of mortgagor to redeem, as stipulated under Section 60 of the TP Act. 52. Additional Substantial Questions of law No.2 and other Substantial Questions of law : Whether the Agreement Holder, under Ex.B-3 - Time Barred Agreement, can claim protection under Section 53-A of the T.P. Act? 53.In O.S.No.53/1983, the Courts below have recorded the findings :- (i)that Othi had been discharged by D-1 and therefore, he was in possession of the property in his own way, in pursuance of Ex.B-3 Agreement; (ii)D-1 cultivated the property as his own, by doing the maramath work by cutting the trees and by paying the kist. Such acts indicate that Plaintiff was in possession in Part Performance of the contract; (iii)possession of D-1 being in Part Performance of the Contract, is entitled to be safeguarded against any other person and the right could be used by him as a shield. The Courts below have also concurrently found that the Plaintiff is not a bonafide purchaser for value. It is to be considered whether in recording the above findings, the Courts below have taken into its fold the essential conditions under Section 53A of T.P.Act. 54.For invoking the benefit under Section 53A of T.P.Act, four essential conditions are necessary to be satisfied:- (i)The contract should have been in writing signed by transferor. (ii)The transferee should have got possession of the immovable property covered by the contract. (iii)The Transferee should have done some act in furtherance of the contract. (iv)The Transferee has either performed his part of the contract or is willing to perform his part of the contract. 55. (ii)The transferee should have got possession of the immovable property covered by the contract. (iii)The Transferee should have done some act in furtherance of the contract. (iv)The Transferee has either performed his part of the contract or is willing to perform his part of the contract. 55. Willingness to Perform :- By a careful consideration of the evidence and the conduct of the parties, this Court finds that excepting his contention, that there is written Agreement between D-1 and D-3, none of the other contentions are satisfied. Firstly, we may consider whether D-1 has performed or is willing to perform his part of the Contract. The trial Court in O.S.No.53/1983 and the Appellate Court has not considered those essential aspects of Section 53 of the Act viz., readiness and willingness to perform his part of the contract. Defendant who takes a plea of Part Performance of the contract and claims benefit of Section 53-A must definitely plead and assert that he had demanded for Specific Performance within the stipulated time. Part performance, as a statutory right is conditioned upon the Agreement Holder's continuous willingness to perform his part of the contract in terms of the Agreement. However such willingness in the context of Section 53-A of the Act must be absolute and unconditional. Regarding willingness to perform, the Court must consider the obligations of the parties and the sequence in which they were to be performed. 56.In the instant case, D-1's wife - Thangamani Ammal was in possession of the Suit Property. D-1 was required to pay the balance consideration of Rs.750/- before 05.02.1975 and get the Sale Deed executed in his favour. As noted earlier, there is no evidence showing the payment of Othi amount of Rs.300/- to his wife Thangamamani Ammal. That apart, absolutely there is no evidence showing that D-1 was ready and willing to perform his part of the contract. Within a few days after Ex.B-3 – Agreement (dated 02.12.1974), i.e. on 06.12.1974, D-3 has written Ex.B-4 - Letter to D-1 calling upon him to pay Rs.750/-, stating that his father is unwell, D-3 has requested D-1, "U:gha; 750-= Fiwahky; bfhLj;J tpraj;ij Koj;J tplt[k;/ ntW ahUf;Fk; ,e;j tprak; bjhpa ntz;lhk;/" It is not known whether the amount was paid. It is to be noted that there is no endorsement of payment in Ex.B-3 – Agreement. 57.On 24.01.1975, D-3 has written Ex.B-6. It is to be noted that there is no endorsement of payment in Ex.B-3 – Agreement. 57.On 24.01.1975, D-3 has written Ex.B-6. D-3 has written, "Mjyhy; ijkhjk; 25 KTh;j;jk; ghh;j;J ,Uf;fpwJ/ Mjyhy; mjw;F Kjypy; vGjpa vf;hpbkz;Loy; 350k; nrh;j;J Tl 500-= nrh;j;J g[J vf;hpbkz;L vGjp jahh; bra;J tplt[k; rpj;jpiu iffhrpapy; vy;yhtw;iwa[k; nrh;j;J Koj;JtpLnthk;/ vy;yh tpc&aKk j';fSf;Fj; bjhpa[k;". D-1 does not appear to have sent any reply nor appears to have questioned the request of D-3. D-1 does not seem to have raised any objection for the fresh agreement to be executed. It is to be noted that Ex.B-6 - Letter (dated 24.01.1975) is just a few days prior to the time stipulated for agreement, i.e. 05.02.1975. As rightly held by the learned Trial Judge that if Ex.B-6 is to be taking into consideration in toto, then the previous agreement viz., Ex.B-3 would not have much force. 58.After Ex.B-6 – Letter in January 1975, there is no evidence of any connection between the parties. The stipulated time extended on 05.02.1975. D-1 has not taken any steps to perform his part of the contract immediately after 05.02.1975. Absolutely, there is no evidence showing willingness of D-1 to perform his part of the contract from 05.02.1975. Only on 15.06.1977, D-1 is said to have written Ex.B-7 - Letter to Sadagopachariar. In Ex.B-7 – Letter, D-1 has stated that :: "jh';fs; cj;jutpd; nghpy; ghg;ght[f;F fy;ahzk; bra;a mtrukhf nkYk; 500 U:/ ntz;Lbkd;W 24/01/1975 vdf;F fojk; vGjptpl;L 30/01/1975 ,';F vd;dplk; te;J mtruk; vd;W brhy;yptpl;L 500 U: th';fpf; bfhz;L bkhj;jk; 1250 U: th';fpapUf;fpnwd; vd;W brhy;yptpl;L nghdth;. Ciutpl;nl v';nfh ngha;tpl;ljhf bjhpfpwJ/ vdf;F ngrpago fpuak; Koj;J bfhLf;fhky; ,Ue;Jtpl;lgoahy; ,e;j fojj;ij mDg;gpapUf;fpnwd;/ clnd te;J fpwak; Koj;Jf; bfhLf;f jtwpdhy; vf;fphpnkz;Lgo ehd; fpwa Ch;rpjk; bra;J tUntd; jh';fSf;F ehd; juntz;oaJ bjhif U:/250-= jhd; vd;gij ,f;fojj;jpd; K:yk; bjhptpj;Jf; bfhs;fpnwd;" 59.The above letter said to have been written by D-1 to Sadagopachariar is now produced by D-1 himself. How D-1 happened to obtain the letter written by him to Sadagopachariar is not explained. It is not the case of D-1 that Ex.B-1 - Letter is the copy of the letter sent by him to Sadagopachariar. D-1 has also not explained as to the necessity of retaining copy of the letter sent to Sadagopachariar. 60.Contents of Ex.B-7 - Letter is self serving. It is not the case of D-1 that Ex.B-1 - Letter is the copy of the letter sent by him to Sadagopachariar. D-1 has also not explained as to the necessity of retaining copy of the letter sent to Sadagopachariar. 60.Contents of Ex.B-7 - Letter is self serving. Even if Ex.B-7 is taken as correct, it is seen that the first Defendant has not stated that he is already in enjoyment of the Suit Property as a person who had been in possession of the property as an Agreement Holder. Under the Sale Agreement, D-1 is liable to pay Rs.750/-. But in Ex.B-7, D-1 has stated that he is liable to pay only a sum of Rs.250/- since a sum of Rs.500/- was already paid to D-3. We may recapitulate that there is no endorsement of payment in Ex.B-3 - Agreement of sale. The essential condition of Sec. 53-A that willingness to perform the contract must be absolute and unconditional. When Rs.750/- was due towards the balance sale consideration, statement of D-1 that he is bound to pay only Rs.250/- cannot be said to be the willingness in the context of Section 53-A of the Act. In proper appreciation of the conduct of the parties in O.S.No.526/1980 the learned Judge has found that the essential conditions of Section 53-A T.P.Act, has not been complied with. The Appellate Court was not right in upsetting the well considered Judgment of the trial Court. 61.Ex.B-7 - Letter is dated 15.06.1977. In Ex.B-7 – Letter to Sadagopachariar, D-1 has stated that if the Sale Deed is not executed, he would enjoy the property as is own. Strangely, D-1 has not informed if the Sale Deed is not executed, he would approach the Court for Specific Performance. If Sadagopachariar and D-3 have not turned up for executing the Sale Deed, D-1 ought to have taken steps for filing the suit for Specific Performance. It is not as if D-1 was naïve or illiterate. His wife was employed as a teacher. Even in 1958, the family has lent money on Othi and subsequently lent money under Ex.B-2 - Mortgage Deed also. In the Written Statement and other documents, D-1 has signed in English, showing that he is worldly wise. The inaction for a long period is a strong militating circumstance on the 'willingness'. This aspect was not properly appreciated by the Courts below in O.S.No.53/83. In the Written Statement and other documents, D-1 has signed in English, showing that he is worldly wise. The inaction for a long period is a strong militating circumstance on the 'willingness'. This aspect was not properly appreciated by the Courts below in O.S.No.53/83. 62.As noted earlier, till the disposal of O.S.No.526/ 1980, suit for Specific Performance was not filed. Only on 23.04.1982, after the disposal of O.S.No.526/1980 the suit for Specific Performance was filed. The Courts below have committed serious error in ignoring this vital aspect. Section 53A of the Act, confers no right upon the party, which has not proved his readiness and willingness to perform his part of the contract. 63. Act of Part Performance and alleged taking over of possession :- In O.S.No.526/1980, in the Written Statement, the Defendant has alleged, "on redemption of the othi, this Defendant has been continuing possession of the Plaint Schedule Property in pursuance of the Agreement of Sale." It is relevant to note that there is no recital in the Ex.B-3 - Agreement of Sale, that possession has been handed over to D-1. To get protection under Section 53-A of T.P.Act, it is necessary to show that the Agreement Holder is in possession of the Suit Property in pursuance of Contract. D-1 has no definite case as to when he came to be in possession. In his evidence, D-1 has stated that after the death of his wife, he was enjoying the Suit Property on the basis of the Agreement of Sale. In O.S.No.53/1983 and in A.S.No.8/1982, the learned Subordinate Judge has virtually accepted the same stating that "vdnt 1k; gpujpthjpapd; kidtp j';fkzp mk;khs; ,we;j gpwF 1k; gpujpthjp fpiua xg;ge;j mog;gilapy; jhd; tHf;fpilr; brhj;ij mDgtk; bra;J. mjpy; ku';fis btl;oa[s;shh;". The alleged possession after the death of Thangamani Ammal on 06.05.1977 cannot be said to be in pursuance of the Contract of sale. 64.To show that D-1 is in possession of the Suit Property and that he has spent amount for improving on the Suit Property, DW-2 Kaliappan was examined. DW-2 has spoken that he was engaged for levelling and reclaiming the Suit Property and that he received amount, for which he has signed in the diary. By perusal of Ex.B-10 Diary, it is seen that on 13.01.1976, DW-2 has received the amount, which he has acknowledged by signing in the entry in Ex.B-10 - Diary. DW-2 has spoken that he was engaged for levelling and reclaiming the Suit Property and that he received amount, for which he has signed in the diary. By perusal of Ex.B-10 Diary, it is seen that on 13.01.1976, DW-2 has received the amount, which he has acknowledged by signing in the entry in Ex.B-10 - Diary. As noted earlier, the Diary was maintained by Thangamani Ammal. The entry only indicates that DW-2 must have received the amount only from Thangamani Ammal. This does not in any way advance the case of D-1; but only weakens the defence that he had taken possession in pursuance of the Agreement of Sale. Engaging DW-2 - Kaliappan and payment of amount by Thangamani Ammal does not amount to act of part performance by D-1. His possession after the death of Thangamani Ammal is only in his capacity as legal heir of Othidar. Kist receipts Exs.B-8 and B-9, for the faslis 1389 and 1390 (1980 and 1981) have been paid only after the issuance of Ex.A-3 - Notice (dated 11.09.1979) by the Plaintiff, for redemption. The scant evidence adduced by first Defendant does not satisfy the requirement of Part Performance, within the meaning of Section 53-A of the Act. 65.Contending that in a similar situation, the Supreme Court has confirmed the relief of Permanent Injunction on the basis of Doctrine of Part Performance of Contract under Section 53A of the Act, the learned counsel for the first Defendant has relied upon 2001 SAR Civil 48 [Hamzabi Vs. Syed Karimmudin]. In the said case, the subject matter of the dispute was a house at Aurangabad. The house belonged to one M.H. In 1951, M.H. created a usufructuary mortgage of the house for seven years in favour of the Petitioner No.1 for a consideration of Rs.700/-. Later in 1953, MH agreed to sell the house to the Petitioner No.1's husband for Rs.825/- and the Agreement is evidenced by the document. First Petitioner's husband improved the Mortgaged Property and made various additions and alterations, converted the two room house into a fifteen roomed one. Few years later, the legal heirs of the deceased had sold the house to the first Respondent for a sum of Rs.3,000/-. Out of which, the amount of Rs.600/- was retained by the first Respondent for the purpose of redeeming the mortgage in favour of the first Petitioner. Few years later, the legal heirs of the deceased had sold the house to the first Respondent for a sum of Rs.3,000/-. Out of which, the amount of Rs.600/- was retained by the first Respondent for the purpose of redeeming the mortgage in favour of the first Petitioner. In the said decision, the Supreme Court has held that the mortgagee's status is subsumed or merged in his rights as a putative vendee under Section 53A against the transferor. On those factual aspects the Supreme Court has found that the four conditions of 53A having been fulfilled by the mortgagee, it was held that the mortgagor is debarred from claiming possession of the mortgaged property. Contending that the above case is identical to the case in hand, much contention has been advanced that the mortgagee's status is merged with the vendee in possession and hence, he is entitled to the benefit of Section 53A of the T.P.Act. The above said case before the Supreme Court is distinguishable on factual aspects. In the said case, almost the entire sale consideration was paid and the unregistered Sale Deed itself was executed. Unregistered Sale Deed was also taken for registration to the Registration Office and two of the heirs had even executed the deed of sale. Only thereafter, the said purchaser had exercised rights of ownership and altered his possession by adding several rooms to the existing structure, by incurring expenses. The purchaser had asserted his possession of ownership. Pointing out that only registration of document alone remained incomplete, the Supreme Court has found that the four conditions under Section 53A of the Act have been fulfilled. In the case in hand, the facts are entirely different and distinguishable. There is no evidence produced showing that the sale consideration has been paid. Equally, no acceptable evidence showing incurring of expenses nor definite evidence has been produced showing the act of possession under such factual aspects, the above decision of the Supreme Court cannot be applied to the instant case. 66.In O.S.No.53/1983, the Courts below have found that the Plaintiff is not a bonafide purchaser for value. It is pertinent to note that at the time of Ex.A-1 - Sale Deed, dated 31.08.1979, Agreement - Ex.B-3 has already become time barred. No tangible steps have been taken to enforce the rights under Ex.B-3 - Agreement of Sale. 66.In O.S.No.53/1983, the Courts below have found that the Plaintiff is not a bonafide purchaser for value. It is pertinent to note that at the time of Ex.A-1 - Sale Deed, dated 31.08.1979, Agreement - Ex.B-3 has already become time barred. No tangible steps have been taken to enforce the rights under Ex.B-3 - Agreement of Sale. On 15.06.1977, Ex.B-7 - Letter was sent to Sadagopachariar. There is no evidence as to the date of death of Sadagopachariar. However, no steps had been taken to file the suit for Specific Performance. During his examination, in O.S.No.53 of 1983 (as DW-1), Plaintiff has stated that he has approached the first Defendant and the first Defendant has promised to deliver possession on receipt of Othi amount. In A.S.No.137/1984, the learned Appellate Judge drew a strange inference that if really the Plaintiff had approached the first Defendant before obtaining the Sale Deed, D-1 would have certainly "provoked into saying that he was an Agreement Holder and that it was not proper for the third party to purchase the property". The conclusion that the Plaintiff is not a bonafide purchaser for value, is not a matter on assumption or inference. Definite evidence ought to have been adduced proving that the Plaintiff had knowledge about the Agreement of Sale. Suffice it to point out that at the time of purchase in August 1979, Ex.B-3 Agreement had already become time barred. Hence the Courts below have committed a serious error in concluding that the Plaintiff had knowledge about the Agreement of Sale and is not a bonafide purchaser. 67.Contending that the first Defendant is entitled to the benefit of Section 53A of the T.P.Act, the learned counsel for D-1 has relied upon a number of decisions :- AIR 1956 Madya Bharath 72; AIR 1957 AP 854 1987 TLNJ 352; 2004 (3) MLJ 181 (SC) These above decision only advert to the four essential conditions for granting protection under Section 53-A of T.P.Act. 68.It is well settled that the Doctrine of Part Performance could be used only as a shield and not as a sword. The right under Section 53A of the Act could be used only as a shield but not as an independent claim either as Plaintiff or as a Defendant. This view is expressed by the Supreme Court in AIR 1997 SC 1953 and other decisions. The right under Section 53A of the Act could be used only as a shield but not as an independent claim either as Plaintiff or as a Defendant. This view is expressed by the Supreme Court in AIR 1997 SC 1953 and other decisions. Right conferred by Section 53A of the Act is a right available only to the Defendant to protect his possession; it does not create any title in the Defendant. It operates merely as a bar to the Plaintiff asserting his title. Right conferred under Section 53A of the Act cannot be used as a weapon of attack. A person who has agreed to purchase the Suit Property on the basis of the Agreement of sale can institute only a suit for Specific Performance of contract. He cannot maintain a suit for Permanent Injunction as against the purchaser for value from the lawful owner. Because of the misconception of the scope of Section 53A of T.P.Act, by the Courts below, D-1 has retained the property for more than two decades. It is an unfortunate case where possession of D-1 has been protected by an erroneous order of Permanent Injunction by the Courts. 69.Permanent Injunction has been granted against a time barred agreement. It defies logic as to how a person claiming to be in possession on the basis of a time barred agreement, who has not performed his part of the contract could be protected against the lawful owner. The grant of Permanent Injunction only betrays the misconception of the scope of the section by the Courts below. Covered by the order of the Court, the first Defendant and his Legal Representatives are only squatting on the property for more than two decades. The Decree of the Court has deprived the Plaintiff's very much valuable right of redemption. The Courts' delay has also contributed to the same. 70.Considering the exigency of the situation, by a well considered Judgment, in O.S.No.526/1980, the learned District Munsif has passed the order of Final Decree of redemption in favour of the Plaintiff. The Appellate Court has committed a serious and substantial error in upsetting the same. Reasoning and findings in O.S.No.53/1983 are legally erroneous. The concurrent findings of the Courts granting Permanent Injunction on the Doctrine of Part Performance is perverse and illogical and cannot be sustained. 71. The Appellate Court has committed a serious and substantial error in upsetting the same. Reasoning and findings in O.S.No.53/1983 are legally erroneous. The concurrent findings of the Courts granting Permanent Injunction on the Doctrine of Part Performance is perverse and illogical and cannot be sustained. 71. S.A.No.348/1984 :- The second appeal is allowed with costs, setting aside the Judgment in A.S.No.8/1982 dated 30.07.1983 on the file of the Sub Court, Srivilliputhur. Judgment and Decree of the Principal District Munsif Court, Srivilliputhur in O.S.No.526/1980 dated 23.12.1981 are confirmed. 72. S.A.No.1245/1986:- This second appeal is allowed with costs, setting aside the judgment in A.S.No.137/1982, by the District Court, Ramnad at Madurai (Dated 25.11.1985) (arising out of the Judgment and Decree in O.S.No.53/1983, Sub Court, Srivilliputhur, dated 30.07.1983). The suit O.S.No.53/1983, Sub Court, Srivilliputhur is dismissed.