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Faculty of Sharai'ah and Law
Assignment of the transfer of property act 1882 THE DOCTRINE OF PART PERFORMANCE
Submitted to: Maj Attaullah khan Submitted by: MUHAMMAD KAMRAN PASHA
'' under . Muhammad Alam v. other than a right expressly provided by the terms of the contract provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. However. 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. or. though required to be registered. Mirza Abdul Gaffar PLD 1996 SUPREME COURT 910 The statute of frauds prevents courts from enforcing an oral contract to convey an interest in real property. notwithstanding that the contract. courts have regularly recognized exceptions based on acts taken by one or both of the parties in performing under the otherwise unenforceable contract. that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force. or the transferee. where there is an instrument of transfer. 53A. Without written evidence. and the transferee has performed or is willing to perform his part of the contract. Considerations of fairness lead courts to apply an equitable exception to the usual legal result mandated by the statute of frauds. a contract does not satisfy the formal requirements set by legislatures under their statutes of frauds. taken possession of the property or any part thereof. Comment: Since the appellant's claims is founded on Section 53-A. This is the equitable doctrine of ''part performance. Part performance Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. has not been registered. Thereby the plea of adverse possession is not available to the appellant. being already in possession. continues in possession in part performance of the contract and has done some act in furtherance of the contract. in part performance of the contract. then.The Doctrine of Part Performance This doctrine has been discussed in the Transfer of property act IV of 1882 section 53-A. it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. and the transferee has. despite this clear legislative mandate.
misrepresentation. The enforcement of an oral contract always involves two evidentiary steps. Application of the doctrine of part performance either takes a case involving an oral . Notably. may provide equitable remedies to a party. including specific performance of an oral contract. Second. a party must still meet the burden of proving the existence of the contract by clear and convincing evidence. In such a case. even in cases where the circumstances would justify the defense of failure to satisfy the statute of frauds. a party must convince the court that the alleged acts of part performance of the contract are sufficient to excuse compliance with the writing requirement of the statute of frauds. as well as the consideration necessary for a valid contract. Nonetheless. Provisions of section 53-A are applicable to cases where a person had contracted to transfer immoveable property or had executed an instrument of transfer which was not registered. The evidence must show a meeting of the minds based on an offer and a sufficient acceptance. First. proof of the contract may be sufficient even though it is made entirely by parole evidence. the evidence presented must convince a court that the doctrine of part performance is satisfied. PLD 2002 Supreme Court 702 Where vendee has committed default in performing his part of contract. the doctrine of part performance allows a court to recognize and enforce an oral contract despite its legal deficiencies.which a court. There must also be no proof of mistake. in other words. the party must prove all the elements normally required for recognition of a contract between the parties. 2002 CLC 433 The doctrine of part performance provides a way around the statutory bar to the enforcement of an oral contract. a party can establish the existence of a contract despite the lack of any written evidence. through its equity powers. A defense otherwise available under the statute of frauds is waived if it is not pleaded. he cannot continue to remain possession in the grab of protection of agreement to sell. If properly established. or illegality that would otherwise invalidate the contract. When it applies. an oral contract is nevertheless enforceable if the party fails to assert the statute as a defense in an action for enforcement of the contract.
between the dates an oral agreement is made and the date of an enforcement action. are considered inadequate. It is important to draw a distinction here. Charges of unfairness relating to the statute of frauds stem largely from the nature of . However. it makes the case an exception to the statute) or takes the statute out of the case (that is. the courts are responding to the equities in the particular case. Therefore. The original statute of frauds expressly aimed to prevent fraud and perjury. a party acts in reliance on the contract and changes circumstances as a result. one party to the contract would be able to escape its own performance after permitting the other party to partly perform in reliance on an oral contract. Courts have viewed attempts to block enforcement of oral contracts by asserting the statute of frauds as a fraud against the party who has acted in reasonable reliance on the existence of the parties' agreement. In such a case. Developments that occur after the creation of the oral contract can give rise to new rights and equities growing out of the new positions of the parties when one party acts in reliance on the oral contract and the other party acquiesces. in the absence of acts by the other party in reliance on the contract. The extraordinary equitable remedy of specific performance is not available. the courts cannot adequately return the parties to their prior situations. allowing the statute of frauds to invalidate the contract would make the statute into an instrument that causes fraud rather than one that prevents it. the statute is held to be inapplicable). In applying the doctrine of part performance. one party's mere breach of a promise. Reliefs through actions at law for damages or restitution. A different situation arises if. however. The mere existence of an oral contract does not give either party the right to demand specific performance of the contract. Thus. The statute of frauds is designed to prohibit enforcement in this situation. If the statute of frauds were strictly applied in such a case.contract out of the statute of frauds (that is. courts are willing to protect the equities arising out of the transaction by decreeing specific performance of the oral contract despite failure of the parties to satisfy the statute of frauds. in cases where part performance has occurred. because of the parties' change of position. gives rise only to ordinary contractual remedies. One common justification for applying the doctrine of part performance is that it satisfies the same policy considerations as the statute of frauds itself. for example.
The two other most common acts that qualify under the doctrine of part performance--taking possession of the property and making improvements --may occur because of the existence of the contract. or by someone on his behalf. Only one of the typically recognized acts of part performance--payment of the contract price--is generally expressly mentioned as a requirement under a contract. Because the part performance doctrine operates as a judicially developed equitable exception to the strict operation of the statute of frauds. The necessary conditions are 1) there must be a contract to transfer for consideration any immovable property. courts have used the narrower. Notably. the ''doctrine of part performance'' is not an accurate name. The existence of the alleged acts of part performance is a question to be decided by the jury or another trier of fact. The burden of proof is on the party who is asserting the doctrine of part performance. its application has the potential for defeating parties' actual intentions. As a statute that imposes certain formal requirements on transactions. . a better descriptive title for the doctrine would be the ''doctrine of acts performed in reliance on an oral contract. term for so long that it is a handy nickname for the rule as long as the doctrine's broader applications are recognized. The doctrine may apply even where no acts required under the contract are performed. and technically inaccurate. most modern courts are reluctant to extend the exception beyond those situations traditionally recognized by the courts. The trend in many areas of modern contract law is to focus more on the intention of the parties and to disregard formal requirements if they prevent fulfillment of the reasonable expectations of the parties. signed by the transferor. However.the statute. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. Courts have also tended to provide equitable remedies in order to avoid the substantial injury that can result when legal remedies are inadequate.'' Reliance can include both acts taken to perform obligations under the contract and acts undertaken in reliance on the oral agreement. 2) the contract must be in writing. Thus. however. but they are not acts that are literally required for performance of the contract. while the sufficiency of the acts of part performance is a determination left to the judge as a matter of law.
A lease is a transfer of immoveable property and to a lease deed which requires registration section 53-A will be . of the opinion that if the conditions enumerated above are complied with. Decided on 1st March 1962 In this case the applicability doctrine of Part performance is discussed as. or of any part thereof. therefore. While section 53-A is of no help to the defendant is so far as he relies upon clause 11 as creating a charge it does come to its assistance if the agreement containing in this clause was one of the conditions of the lease granted to the defendant. and 6) the transferee must have performed or be willing to perform his part of the contract. Case Law on the Doctrine of Part Performance: PLD 1962 Supreme Court 134 Abdul Razzak Hawaldar-Appellant Versus Muhammad Shafi-Respondent Civil Appeal No.3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained. the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation. 5) the transferee must have done some act in furtherance of the contract. We are. it will be observed that this section is only applicable only to cases where a person contracts to transfer immoveable property or executes an instrument of transfer of property which is not registered. 4) the transferee must in part performance of the contract take possession of the property. A charge admittedly does not transfer any interest and therefore this section cannot be invoked in respect of a charge. 18-D of 1961.
which are ultimately based on some English authorities that that possession of the defendant over the premises in dispute at the time of transfer in favor of the plaintiff was sufficient to put the plaintiff on enquiry and that if he willfully abstain from an inquiry which he ought to have made he should be deemed to have constructive notice of that he would have found had he made that enquiry. According to section 53-A the transferor or any person claiming under him cannot claim any right in respect of the property of which possession has been taken by the transferee except a right reserves by the terms of the contract. Before us it has been contended by learned council for the appellant on the strength of some cases from pre-partition India. However the lessee entered into possession and paid money to the lessor in accordance with the terms of the lease deed and therefore the protection of section 53-A became available to the lessee. This brings us to the question of notice for the protection of section 53-A is not available against a transferee for consideration without notice of the contract. This section prohibits the enforcement by the transferor or any other person claiming under him of ''any right in respect of the property of which the transferee has taken possession''. It could not. come to the conclusion that the plaintiff had no notice of what is contained in clause II.applicable if its conditions are satisfied. In the present case the lease was created for a period of five years. The effect of section 53-A is that the transferee can recover consideration only in accordance with the term os the contract and the transferee can in lieu of such consideration successfully defends his possession of the property transferred. in view of the provisions of section 107 of the transfer of property act be created by an unregistered document. and the case of the plaintiff has been that he is such transferee. . The high court had. after a consideration of the whole evidence.
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