Pareed Pillay, J.Appellants are defendants 1 and 2 in O.S. 88 of 1978 of the Sub Court, Thodupuzha. Plaintiffs (respondents) suit for rendition of accounts and injunction was decreed by the trial Court.

2. On 3-3-1980 defendants did not appear before the Court when the suit was listed for trial. Though they sought adjournment of the case with a medical certificate the Court did not grant it. The first defendants counsel submitted no instructions. On the basis of the evidence adduced by the plaintiff the suit was decreed. LA. 225 of 1980 was filed under Order 9, Rule 13, C.P.C. to set aside the ex parte order. That petition was rejected on 27-3-1980 by the Court below holding that the disposal of the case was on merits and so the petition under Order 9, Rule 13 is not maintainable. The appeal is filed against the judgment and decree of the trial Court.

3. Learned counsel for the defendants (appellants) submitted that an opportunity may be afforded to the defendants to substantiate their contentions by remanding the case to the trial Court. Learned counsel for the plaintiff submitted that no purpose will be served by remanding the case to the trial Court in view of the lack of pleadings in the case.

4. Plaintiff filed the suit for rendition of accounts and permanent injunction. The property admittedly belongs to the plaintiff. As the plaintiff was residing away from the property she entrusted it to the first defendant for management and executed Ext. A1 power of attorney. He belongs to her deceased husbands family. He has another property near the suit property. It is the case of the plaintiff that the first defendant did not care to render accounts to her and that he misappropriated the amounts due to her. It is also stated in the plaint that the first defendant had obtained signed stamped blank papers from the plaintiff representing that they were necessary for some lawful purposes. On knowing about the mis-deeds of the first defendant the plaintiff had cancelled the power of attorney on 29-1-1978 which was acknowledged by the first defendant. Ext.A2 is the copy of the registered notice. According to the plaintiff, the defendants have no manner of right over the property and that the first defendant is liable to render accounts to her. Plaintiff sought injunction against the defendants restraining them from obstructing her peaceful enjoyment of the property.

5. First defendant filed written statement admitting the power of attorney in his favour by the plaintiff. But he contended that the plaintiff had executed an agreement for sale in his favour on 27-12-1969 with respect to the plaint schedule property and another property belonging to her minor daughter. It is also contended that another agreement for sale was executed on 30-1-1974 in confirmation of the earlier agreement in her individual capacity and also as the guardian of her minor daughter. First defendant contended that he had paid the entire consideration and there fore he is entitled to protection u/s 53A, of the Transfer of Property Act. First defendant also contended that the property is now in the possession of the second defendant and that the plaintiff had relinquished all her claim with regard to the above property.

6. Second defendant filed written statement reiterating the contentions of the first defendant. He further stated that he got possession of the property from the first defendant with the knowledge and consent of the plaintiff and that the plaintiff is not entitled to any reliefs in the suit.

7. A remand of the case to the trial Court, is necessary only if it would be legally possible for the defendants to substantiate their contentions. Otherwise a remand would be a sheer exercise in futility.

8. The question to be considered is whether on the pleadings it would be available to the defendants to take a defence u/s 53A of the Transfer of Property Act. S.53A has been described by the AIR 1934 235 (Privy Council) as a partial importation of the English equity of part performance. In Chaliagulla Ramachandrayya Vs. Boppana Satyanarayana and Others, the Supreme Court held thus :

"Section 53A introduces in a limited form the doctrine of equity of part performance. After Section 53A was enacted the only case in which the English doctrine of equity of part performance could be applied in India is where the requirements of Section 53A are satisfied."

Section 54 of the Transfer of Property Act defines sale. Sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. The section makes the position clear that the contract for sale by itself does not create any interest in or charge on the property. As Section 54 postulates that a contract for sale of immovable property does not by itself create any interest in or charge on the property, English equitable doctrise that a contract for sale of immovable property makes the purchaser the owner in equity of the estate is not applicable in India. Before the insertion of Section 53A any assertion by the defendant of an agreement for sale and his consequent possession of the property would not have been a relevant defence to an action in ejectment suit by the plaintiff. The position is now different in view of Section 53A, The section gives a statutory right on account of part performance. In England it gives right only to an equity. But in India the right is more restricted than the English equity in two respects. Firstly, there must be a written contract and secondly, it is only available as a defence, What is conferred by Section 53A is only a right available to a defendant to protect his possession. It does not create a title in the defendant. For invoking the benefit u/s 53A it must be satisfied that the transferee has, in part performance of the contract, taken possession of the property or any part thereof or the transferee being already in possession, continues to be in possession in part performance of the contract and has done some act in furtherence of the contract. In this case there is no pleading that the first defendant obtained possession only pursuant to the agreement for sale. As the power of attorney is admitted by the first defendant it would follow that the first defendants possession can only be pursuant to the power of attorney and that too on behalf of the plaintiff. In this context it is useful to refer to the Privy Council decision in Srinivasa Moorthy v. Venkata Varada Aiyangar ILR (1911) Mad 257 (PC) where a person who accepted the position as a trustee attempted to set up adverse possession. The Privy Council held that no person who has accepted the position of a trustee and has acquired property in that capacity can be permitted to assert an adverse title on his own behalf until be has obtained a proper discharge from the trust with which he has clothed himself. First defendant having admitted Ext. A-1 power of attorney executed by the plaintiff to manage her properties did not have a case that he had settled accounts with the plaintiff and it was thereafter that he obtained the agreement in his favour from the plaintiff. The absence of such a pleading is sufficient to discard the contention based on agreements for sale set up by the first defendant.

9. One of the essential conditions to be pleaded u/s 53A of the Transfer of Property Act is that the transferee has performed or is willing to perform his part of the contract. There is no pleading as could be discerned from the written statement of the first defendant that he has done anything persuant to the agreement calling upon the plaintiff to execute the sale deed. Nor he had sent any notice to the plaintiff demanding execution of the sale deed. As held in Smt. Chander Kali Bai and Others Vs. Shri Jagdish Singh Thakur and Another, no amount of evidence can be looked into if there is no pleadings to that effect. In the above decision it is held as follows (at p. 2263 of AIR) :

"Where a claim has never been made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. If it could be so even at the trial stage, undoubtedly such a new question of fact could not be entertained at an appellate stage."

As the first defendant does not have a case in the written statement that he has ever demanded the plaintiff to execute the sale deed in his favour and that he has been always willing to perform his part of the agreement no amount of evidence can salvage the tenuous position in which he is placed due to lack of proper pleading to attract Section 53A of the Transfer of Property Act.

10. Evidence regarding possession of the immovable property may be decisive in a case where there is plea of part performance. In Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, the Supreme Court held thus (para 39):

"Induction into possession of an immovable property for the first time subsequent to the contract touching the property, may be decisive of the plea of part performance. Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior to the contract and continues to retain possession."

In a case where a person claims benefit of part performance evidence that he was inducted into possession for the first time subsequent to the contract would be a strong piece of evidence regarding the contract and possession changing hands pursuant to the contract. As the first defendant has admitted Ext. A-1 power of attorney executed in his favour by the plaintiff and as his possession can be traced to Ext. A-l and that too for and on behalf of the plaintiff his contention that he obtained possession pursuant to the agreement in his favour can never be accepted. Plaintiffs evidence would definitely show that the plaintiff did not agree to transfer the property as per any agreement to the first defendant.

11. As the first defendant has admitted that he had handed over possession of the property to the second defendant the former cannot claim benefit u/s 53A of the Transfer of Property Act. To attract Section 53A there must be pleading that he continues to retain possession of the property in part performance of the contract and has done some act in furtherance of the contract. As the first defendant has admitted that the second defendant is in possession of the property the former cannot legally take a i defence u/s 53A. Section 53A postulates that the transferee must obtain possession of the property as per agreement. At the time when Section 53A is pleaded by the first defendant he has no possession of the property even according to his written statement. That alone is sufficient to disentitle his defence u/s 53A of the Transfer of Property Act.

12. It has next to be considered whether the second defendant is entitled to avail a defence u/s 53A. How and in what manner the second defendant obtained possession of the property is left vague and not narrated in the written statement. Neither the first defendants written statement nor the second defendants written statement discloses as to how the second defendant obtained possession of the property. In paragraph 14 of the written statement of the second defendant it is merely stated that the first defendant became the full owner of the property on the basis of the agreements dated 27-12-1969 and 30-1-1974 on payment of the full consideration and he (second defendant) obtained possession from the first defendant and he became full owner of the property. Though the second defendant pleaded that the plaintiff consented to the transfer of the property in his favour, the first defendant has no such case in his written statement. In the written statements of both the defendants they have no case that the agreements in favour of the first defendant were ever assigned in favour of the second defendant. Without such an assignment the second defendant cannot claim benefit u/s 53A of the Transfer of Property Act.

13. Section 53A enacts that the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. A person claiming under a transferee can make a valid defence u/s 53A only if he is armed with an agreement in his favour. As there is no pleading of the assignment or any agreement in favour of the second defendant he cannot definitely claim benefit u/s 53A A person claiming under a transferee as per assignment can defend his possession in his favour. Second defendant has no case that he obtained assignment of the agreements relied on by the first defendant.

14. As the power of attorney is admitted by the first defendant he is only an agent of the plaintiff. Recitals in Ext, A-1 would show that the plaintiff being a helpless widow required the help of the first defendant to manage her properties. In such a case it is difficult to believe that the plaintiff had agreed to sell the property not only belonging to her but also belonging to her minor daughter. Under Mohimmedan Law a minors property cannot be sold by a defacto guardian. As the first defendant has admitted the power of attorney he cannot validly claim the property on the basis of the agreements.

15. As the averments in the written statements, even if they are totally accepted, will not be sufficient to attract Section 53A, no purpose will be served by remanding the case to the trial Court to adduce evidence by the defendants. No amount of evidence can improve a case if there is total lack of pleadings.

We find no merit in the appeal. The appeal is dismissed with costs.