( 1 ) THIS second appeal arises out of Suit O. S. No. 101/4 of 1957 on the file of the learned Subordinate Judge, Warangal. The necessary facts are: Nagabandi Ranganaikulu, the plaintiff, instituted the suit firstly for possession of the land. The plaint however was subsequently amended including the relief of redemption of usufructuary mortgage. It was alleged inter alia that defendants 1 to 3 and Ali Mirza, father of defendants 1 and 2, mortgaged the suit land with the plaintiff for a sum of Rs. 15,000 on first Thir, 1358-F. A registered usufructuary mortgage deed was executed on that date. The same land were previously mortgaged for Rs. 2,000 with defendants 4 and 5 by Mohammed mirza, one of the mortgagors (1st defendant), on 19th Shehrewar, 1356-F. It was contended by the plaintiff that in view of the terms of the usufructuary mortgage the debt of defendants 4 and 5 has been completely liquidated. The plaintiff therefore asked the defendants 4 and 5 to deliver possession of the suit lands to the plaintiff. There were proceedings under section 145, Criminal Procedure Code in which possession of defendants 4 and 5 was declared. Since defendants 4 and 5 refused to deliver possession in spite of their mortgage being satisfied, the plaintiff instituted the present suit. The plaintiff also asked for mesne profits for two years at the rate of rs. 950 per year.

( 2 ) DEFENDANTS 1 to 3, the mortgagors at first admitted the claim of the plaintiff in their written statement of 24th December, 1952. They however filed another written statement on 25th April, 1953 contending that the suit of the plaintiff should be dismissed. Their contention is that the plaintiff got his mortgage deed by fraud and that the plaintiff paid only Rs. 1,100. On 17th December, 1955 the defendants. 1 to 3 and the plaintiff filed a compromise memo. In that compromise defendants 1 to 3 confirmed the written statement which they had filed on 24th December, 1952 and alleged that the plaintiff s suit may be decreed. Defendants 4 and 5, who are the main contestants, resisted the suit on various grounds. They contended that the mortgage in favour of the plaintiff was without consideration and was nominal, and that the Sub-Court had no jurisdiction to entertain the suit. They also denied that their debt was discharged and that they should hand over possession to the plaintiff. They also resisted the claim of mesne profits. It was stated by them that defendants 1 to 3 executed an agreement of sale in favour of defendants 4 and 5 in respect of 6 acres of land agreeing to sell the same for a sum of Rs. 6,000. The agreement was executed on 20th April, 1952. It was therefore contended that the plaintiff was not entitled to recover possession of the suit lands. The 4th defendant Seshagiri Rao filed a petition on 26th July, 1956 stating that he gives up his defence and that the plaintiff s suit therefore may be decreed. The plaintiff seems to have filed a rejoinder but nothing particular is mentioned therein.

( 3 ) IN view of these pleadings, the learned Subordinate Judge framed appropriate issues and recorded the evidence of the parties. On that evidence he held that the agreement of sale was executed by defendants 1 to 3 in favour of defendants 4 and 5 on 20th April, 1952, but found that as no suit could be filed for specific performance on that agreement since it would be time-barred the agreement was unenforceable in a Court of law. He consequently decreed the plaintiff s suit for possession he held that the entire loan amount was discharged in so far as defendants 4 and 5 were concerned. The trial Court did not grant the mesne profits to the plaintiff. Aggrieved by that decision, both the plaintiff as well as the 5th defendant preferred separate appeals to the District Judge, Warangal. The plaintiff was dissatisfied because he was not given mesne profits. The 5th defendant was dissatisfied because although the agreement of sale was declared to have been executed by defendants 1 to 3 in his favour, his possession on that basis was not sustained by the trial Court. Both these appeals were considered by the learned District Judge logether. The learned District Judge agreed with the contention of the Subordinate judge that no effect can be given to the agreement of sale because the suit for spec fic performance of such an agreement would be time-barred. The District judge however allowed the appeals and remanded the case to the trial Court for a fresh disposal. This was mainly done because he was of the opinion that the amendment which was allowed on the petition of the plaintiff ought not to have been allowed by the trial Court. He therefore directed the trial Court to dispose of the suit omitting from consideration the amendment which he had allowed. Dissatisfied with that order of remand, two C. M. As. were filed by the plaintiff before this Court. These C. M. As. came up for consideration before my learned brother Sanjeeva Rao Naidu, J. The learned Judge set aside the remand order of the D strict Judge and directed that the matters which have already been decided by the District Judge in his judgment should not be dealt with again. The learned judge also held that the trial Court was right in allowing amendment of the plaint and. directed the District Judge to dispose of the appeals on merits. He particularly duected the District Judge to determine whether any amount is due and payable to the 5th defendant under the usufructuary mortgage in his favour and if he agreed with the finding of the learned Subordinate Judge that no amount need be paid as the mortgage is discharged, then he should pass a decree straightaway for possession in favour of the plaintiff. If on the other hand, the learned District Judge were to find that some amount as determined by him is due and payable to the 5th defendant under his mortgage he should proceed to consider whether a preliminary decree for red maption should not bs passed in the matter. He also asked him to consider the question of the mesne profits claimed by the plaintiff.

( 4 ) WHEN the matter thus went back to the District Judge, he did not consider the question in regard to the enforceability of the agreement as that matter was dealt with by the District Judge in his previous judgment and the learned judge of this Court had kept open that finding. He however expressed his opinion in paragraph 11 of his judgment that because the suit for specific performance on the foot of an agreement of sale would be time-barred, it cannot be enforced in any court of law. He concurred with the opinion of the trial Court that no amount was due in regard to the usufructuary mortgage executed by the defendant No 1 in favour of the 5th defendant. The 4th defendant had already died. He also granted a decrre in favour of the plaintiff for mesne profits which the trial Court had not granted and directed in regard to subsequent mesne profits that it should be determined on a petition under Order 20, rule 12, Civil Procedure Code. This judgment was pronounced by the District Judge on 8th May, 1962. It is this view of the district Judge that is now challenged in this second appeal by the 5th defendant. The only contention raised in the Second Appeal is that the Courts below were wrong in holding that the agreement to sell the lands executed by defendants 1 to 3 in favour of the 5th defendant is not enforceable in a Court of law because no suit for specific performance on the foot of such an agreement can be filed as it is timebarred.

( 5 ) IT is now well recognised that the law of limitation does not apply to defences set up by the defendant. It must therefore follow that a defence raised under section 53-A of the Transfer of Property Act is not subject to any rule of limitation. Where section 53-A applies, it is immaterial that the defendant could not be sued for specific performance of contract of sale on account of limitation having expired. The doctrine of part performance being a substantive provision of the Transfer of property Act, it must be construed as it is enacted and since the provisions of section 53-A confer a right which is available to a defendant to protect his possession on the foot of an agreement to sell, no question of limitation arises under section 53-A. As stated earlier, there is no bar of limitation to a defence. Therefore, the right of defence under section 53-A is not lost even if the person claiming such right has no present right to enforce the contract by way of specific performance. That this is the correct position of law is not disputed by the learned Counsel appearing for the respondent. He however contended that the defendants 4 and 5 have not in fact raised the plea under section 53-A and secondly assuming that such a plea is raised by the defendants, the requirements of section 53-A are not satisfied in the present case. I have therefore to see whether the defendants in their written statement have raised the plea under section 53-A. It is not however necessary that he should specifically state that he is raising a plea of part performance. It would be enough if all relevant facts which go to constitute a plea of part performance are mentioned in the written statement. Paragraphs 17 and 19 of the written statement are relevant in this behalf. In paragraph 17, it is true that they have stated" that the defendants Nos. 4 and 5 are not only in possession of the suit lands in their capacity as mortgagees in the nature of usufructuary mortgage but they are also in possession of the lands in their capacity as cultivators ". In paragraph 19, however, they have categorically stated that" The defendants Nos. 1 to 3 had agreed to sell the suit lands in favour of the defendants Nos. 4 and 5 for a consideration of Rs. 6,000 and executed an agreement for sale in favour of the defendants nos. 4 and 5. The defendants Nos. 4 and 5 are agriculturists by occupation and are bona fide purchasers.

( 6 ) IT will thus be clear that they have not oney mentioned the fact of the agreement but produced the agreement also. They were resisting the suit of the plaintiff on the basis of this agreement also. Issue 8 framed in this behalf is also eloquent. It is as follows :" Have the defendants Nos. 1 to 3 executed an agreement to sell the disputed lands to defendants 4 and 5 for Rs. 6,000. If so are they entitled to execute such agreement ? What effect it has on the present suit ? "it will be evident that the trial Court which framed the issue understood the pleadings submitted by the parties in this behalf to raise a plea of part performance and, that is why Issue 8 was framed. The last line of Issue 8 clearly indicates that the Court was interested in finding out what would be the effect of the agreement on the present suit. No other effect on the present suit can follow except that if the requirements of section 53-A are satisfied the suit for possession will have to be dismissed. Not only this, but both the Courts below have dealt with this question in their judgments. The trial Court found that the agreement was executed by defendants 1 to 3 in favour of defendants 4 and 5. The trial Court however declined to give any effect to this agreement because it was of the view that the suit for specific performance was barred by limitation. The same view is held by the learned district Judge on both the occasions. I am not therefore prepared to accept the contention that defendants 4 and 5 had not pleaded part performance as a defence to the suit of the plaintiff for possession. I am satisfied that not only such a plea was specifically raised but an issue was framed and the matter was thoroughly discussed treating it as a plea of part performance. It is the second question which has therefore to be carefully considered, that is to say, whether the requirements of section 53-A of the Transfer of Property Act are satisfied in the present case. The defence of part performance as embodied in section 53-A requires four conditions to be satisfied : (1) That there should be a contract to transfer for consideration any immovable property by writing signed by the transferor or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty ; (2) that the transferee should in part performance of the contract have taken possession of the property or any part thereof or the transferee being already in possession should have continued in possession in part performance of the contract and should have done some act in furtherance of the contract (3) that the transferee should have performed or should be willing to perform his part of the contract and (4) that the rights of any other transferee for consideration without notice should not be affected.

( 7 ) THERE are no disputes in this case in regard to Conditions 1, 3 and 4 mentioned above. Arguments centered round condition No. 2 only. Now, in so far as that aspect of the section is concerned, one of the two things would be necessary, that is to say, either (1) the transferee must have " taken possession ", or if he was already in possession must have " continued in possession " and must have " further done some act in furtherance of the contract ". I am not concerned in this case with the first condition as it is admitted that the mortgagees, that is to say, defendants 4 and 5, were already in possession in pursuance of the usufructuary mortgage. It is to the second condition that I have to carefully look. It is not in doubt that the appellant, who was in possession as a mortgagee, continued to be in possession after the agreement to sell was executed. His possession subequent to the discharge of the mortgage cannot in the circumstances be attributed to the mortgage. It is referable only to the agreement of sale. I am not impressed by the argument that the agreement to sell does not make a specific provision that the possession of the mortgagee was converted into that of a vendee in pursuance of the agreement to sell.

( 8 ) IT is true that the agreement does not expressly say so. But I have no manner of doubt that the agreement read as a whole necessarily creates that effect. It must further be remembered that section 53-A does not lay down that the contract must contain a direct covenant regarding continuance of possession under the agreement to sell. It is to the contract and the surrounding circumstances that one has to see in order to find out whether the possession continued in pursuance of the agreement to sell. The agreement states :" The land irrigated under the canal (Kattu Kalwa) and specified below which is in our possession and enjoyment S. Nos. 285,286, 313, 314 an area of 5 acres and 12 cents and No. 284, 1 acre 29 guntas out of which 0. 28 Ac. of Minjumala, i. e. , total 6-00 Ac. Rs. 6-8-0 Mahasil, Dry land and wet land now turned 1st Saharevar, 1356-Fasli was mortgaged to you by registered mortgage deed and which was in your possession up-to-date. We sold this land for family expenditure for Rs. 6,000 of which we have already received Rs. 5,200 (Rupees Five thousand two hundred) in instalments. The balance of Rs. 800 will be received by us in cash before the registrar at the time of registration of the document of Sale Deed and register the document in the proper way. Before registration, permission to sell from the Revenue Department will be taken by us and alienation certificate will be obtained and We will have the registration done. "

( 9 ) A careful reading of these contents of the document would disclose that both the vendors as well as the vendee knew the fact that the mortgagee was in possession and the expression " up-to-date " clearly indicate that from then onwards the possession as a mortgagee ceased and possession as a purchaser continued. This aspect was not seriously disputed in both the Courts below. I am therefore satisfied that from the terms of the agreement as well as from the evidence and the circumstances of the case, it is clear that the possession of the mortgagee subsequent to the execution of the agreement continued as possession of a purchaser. In this connection it is relevant to notice that section 53-A does not require any concurrent act or any specific consent on the part of the transferor to the continuance of possession by the transferee in pursuance of the contract. As stated earlier, it depends upon the language of the contract and the surrounding circumstances. I am satisfied that the first limb of the second condition that the purchaser should have continued in possession in part performance of the contract is satisfied in the present case.

( 10 ) WHAT remains to be seen is whether the transferee has done some act in furtherance of the contract. It was contended by the learned Advocate-General for the appellant that since the vendee paid Rs. 5,200 in instalments in pursuance of the contract of sale, the appellant should be deemed to have done some act in furtherance of the contract. He further contended that the filing of the application by the vendors and the vendees under section 47 of the Hyderabad Tenancy and Agricultural Lands act for securing necessary permission is also an act in furtherance of the contract. It was however contended by Mr. D. Narasaraju, the learned Counsel for the respondents , that since the amount was paid prior to the writing it cannot be said that the part of the consideration was paid in pursuance of the contract. Now it cannot be in doubt that Exhibit A- 19, the agreement to sell, is a document which has reduced into writing a previous oral agreement. There cannot be any doubt that such a writing would fall under section 53-A of the Transfer of Property act provided of course that from such a writing the terms necessary to constitute transfer can be ascertained with reasonable certainty. It is not disputed that Exhibit a-19 satisfies that requirement. Once it is found that there was an oral agreement to sell in pursuance of which some amount was paid and subsequently the oral contract of sale was reduced to writing, which now becomes Exhibit A-19, the amount would be deemed to have been paid in pursuance of a contract of sale. In any case, where the amount previously paid is appropriated towards part payment of consideration of the agreement to sell it would be an act in furtherance of the contract. It is true that the acts done in part performance must be such as could be done with no other view or design than to perform the agreement. But the part payment of consideration is, in my judgment, unequivocal and in its nature referable only to the contract to sell. It is nobody s case that the payment of the part consideration as is mentioned in the agreement is referable to any other contract. The agreement clearly states that the vendors have already received Rs. 5,200 in instalments and that the balance of Rs. 800 will be received in cash before the Registrar. I am therefore satisfied that in this case where the purchaser was already in possession of the property as a mortgagee and then continued in possession after the agreement to sell had been concluded and a portion of the amount was paid, such payment was an unequivocal act which could not be referred to any other matter than the agreement to sell and as such it was sufficient to satisfy the requirement of section 53-A, viz. , that some act must be done in furtherance of the contract.

( 11 ) THAT apart, the vendors and the vendee have admittedly filed an application under section 47 for securing necessary permission to execute the sale deed. The agreement says :" Before registration, permission to sell from the Revenue Department will be taken by us and a lienation certificate will be obtained and we will have the registration done. "i fail to see why this conduct on the part of the purchaser as well as the vendors should not be an act in furtherance of the contract. It cannot validly be argued that this is an act preparatory to the conclusion of a contract of sale. The permission may be necessary to permanently transfer the land. The moment permission is secured the contract to sell becomes a valid contract in law and it can subsequently be enforced in a Court of law whether by way of specific performance or by way of defence under section 53-A. The acts of the vendors and the vendee when they applied to seek permission constitute in my opinion acts in furtherance of a contract for sale. In this connection it must be remembered that subsequently a sale deed also was executed in favour of the 5th defendant by the vendors. It is true that a sale deed also was executed earlier in favour of the plaintiff, but which sale should prevail is not the question before me. The question before me is whether the agreement to sell, Exhibit A-19 was followed by some acts on the part of the vendee which were done in furtherance of the contract, and 1 am satisfied that the part payment of consideration and act of filing applications for securing permission and then getting the sale deed executed are all acts which were obviously done in furtherance of the contract of sale. I am therefore satisfied that all the requirements of section 53-A of the Transfer of Property Act have been satisfied in the present case. Since I have already held that the suit for specific performance would be time-barred is no ground for rejecting the plea of part performance and since I am satisfied that all the other requirements of section 53-A are satisfied, the result of the agreement, in my opinion is that the plaintiff will not be able to get possession from the 5th defendant. The mortgage in favour of the 5th defendant has already been satisfied and his possession continued as a purchaser and he is entitled to retain it against the plaintiff. I am told the 5th defendant has already filed a suit for redemption of the mortgage against the plaintiff in O. S. No. 4 of 1965 and it is pending.

( 12 ) SINCE no other arguments were advanced, for the aforesaid reasons I allow the econd appeal, set aside the judgments and decrees of the Courts below and dismiss the plaintiff s suit. I however leave the parties to bear their own costs throughout. No leave. Appeal allowed.