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Introduction

The Doctrine of Past Performance, based on principle of equity, developed in England and was
subsequently added to the Transfer of Property Act, 1882 via the Amendment Act of 1929. In law
of contracts (for e.g., a contract for sale), no rights pass to another till the sale is complete But if
a person after entering into a contract performs his part or does any act in furtherance of the
contract, he is entitled to reimbursement or performance in case the other party drags its feet.
The general ground upon which the doctrine is based is prevention of fraud. It is said that where
one party has executed his part of the agreement in the confidence that the other party would do
the same, it is obvious that, if the latter should refuse, it would be a fraud upon the former to
suffer this refusal to work to his prejudice
Under this doctrine, if a person has taken possession of an immovable property on the basis of a
contract then, he would not be ejected from the property on the ground that the sale was
unregistered and legal title had not been transferred to him. For instance, there is a contract of
sale of a piece of land between A and B. The contract is in writing, stamped, attested and duly
executed but not registered by A who is the seller. B, who is the purchaser has performed or is
willing to perform his part of contract, i.e. has paid the price or is willing to pay the same. On the
basis of such contract B takes possession of the land. Now, A sells the land through a registered
deed to C. C having legal title of the land attempts to eject B. At this stage, B has no legal title,
law may not protect his possession but, equity shall help him from being dispossessed. The
doctrine of part performance is, therefore, based on the maxim : Equity looks on that as done
which ought to have been done. That is to say, equity treats the subject matter of a contract as to
its effects in the same manner as if the act contemplated in the contract had been fully executed,
from the moment the agreement has been made, though all the legal formalities (e.g., of
registration) of contract have not been yet completed.

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History of the doctrine of part performance
Under the English law, the equity of part-performance was developed by the Chancery Courts
against the strict provisions of the Statute of Frauds, 1677. Section 4 of this Act provides that all
agreements in respect of transfer of lands must be in writing. Under this provision, the transfer of
immovable property on the basis of oral agreement was illegal and transferee could not get title
in the land. Although, the statute of frauds was enacted to avoid fraud being played in the
transfer of lands on oral agreements, but strict application of this law created great hardship to
such transferee. In this way, a bona fide transferee who performed his part of contract by paying
the price in full or in part and who had also taken possession of land could not get title merely
because of the absence of legal formalities; Such transferee were helpless and were being
harassed. Equity then came to their help. Chancery Courts, which were the courts of equity, held
that part-performance by such transferees would take their cases out of the Statute of Frauds.
Thus, equity protected the interests of those transferees who held lands on the basis of oral
contracts and had performed their part of contract. Since then, the equity of part performance
developed further and passed through several stages for protecting the interests of the transferees
who had performed their part in contract in good-faith and the transferor attempted to harass
them on the ground of technical defect in the contract.
PRINCIPLE LAID DOWN IN MADDISON V. ALDERSON
B was A’s servant. A had promised B a certain property as life estate, meaning B could enjoy the
property during his life time. B served A for years upon this promised life estate. The will
bequeathing such interest and property to B failed due to want for proper attestation. After A
died, one of his heirs brought action to recover the property from B. It was held that the act of
part performance could not be proof of the contract since the performance was a condition
precedent to the contract. The heir of A was thus able to recover the said property. Lord
Selbourne said :
“In a suit founded on such part performance, the defendant is really charged upon the equities
resulting from the acts done in execution of the contract, and not upon the contract itself. If such
equities were excluded, injustice os a kind which the statute cannot be thought to have had in
contemplation, would follow”.
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Musa v.Part Performance in India before 1929 Before1929. and imports into India a modified form of equity of part-performance as developed in England in Maddison4. Section 53A was first enacted in 1929 by the Transfer of Property (Amendment) Act 1929. who after the execution of an 1 (1914) 42 Cal. certain lands were divided between the parties who had taken possession of their respective parts of the land. The parties remained in possession for many years and about 40 years later. 801: AIR 1914 PC 27:42 Ind App 1 2 AIR 1931 PC 79 3 AIR 1934 PC 235 4 (1883) 8 App Cas 467. later on. This decision by pass the provisions of Indian Registration Act. since it was in writing. a compromise deed (razinamah) was in writing. However in 1914. the application of English equity of part performance was neither certain nor uniform. it was a valid document and could not be repudiated. 1882 seeks to protect the prospective transferees by allowing them to retain the possession over the property. The privy council applied the doctrine English equity of part performance and held that although the razinama was unregistered but. But. in Ariff v Jadunath2 and Mian Pir Bux v Sardar Mohammad Tahir 3. 1908 under which it was provided that a document required to be registered under this Act but not registered shall not be valid document of transfer of rights in immovable property. In this case. Aghore Kumar Ganguly1. it was held that doctrine of part performance could not be applied in India to over ride and by pass the express provisions of Indian Registration Act and Transfer of Property Act. the heirs of the parties repudiated the compromise deed on the ground that it was not registered. According to the deed. against the rights of the transferors. Page | 3 . the Privy Council in Md. equity and good conscience. The enactment of the section sets at rest the considerable uncertainty prevailing in Indian law as can be seen by three decisions of the Privy Council. 5Section 53A of the Transfer of Property Act. held that the doctrine of part performance was applicable in India based on the principle of justice. but not registered.

(1914) ILR 42 Cal 801. 5 Mahomed Musa v. Ariff v. Aghore Kumar Ganguli.incomplete instrument of transfer. Page | 4 . It furnishes a statutory defense to a person who has no registered title in his favor to maintain possession. fail to complete it in the manner specified by law. Jadunath. without there being any fault on part of the transferees. Mian Pir Bux supra note 2. AIR 1931 PC 79. This section therefore provides for a partial importation of the English doctrine of part performance.

and. though required to be registered. this Page | 5 . 4. has not been registered” has now been omitted. But. 1882 (4 of 1882). (a) after sub-section (1). not necessary) for the application of part-performance under this section. then. In Section 53-A. the following sub-section shall be inserted : “(1A) The documents containing contracts to transfer for consideration. any immovable property for the purpose of Section 53-A of the Transfer of Property Act. in the proviso.” 3. 2. The provisions of this Amending Act came into force with effect from 24-09-2001. – 1. figures and letter “or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of property Act. para 4 of the Transfer of property Act the words “the contract. has not been registered.” shall be omitted. they shall have no effect for the purposes of the said Section 53-A. the words. 1882 shall be registered if they have been executed on or after the commencement of the Registration and other related laws (Amendment) Act.. This may mean to suggest that non-registration of any contract to transfer for consideration is not any relevant factor (i.Amendment of Section 53-A Transfer of Property Act and other enactments An amendment has been made in Section 53-A of the Transfer of Property Act by the Registration and other Related Laws Act (48 of 2001). or” omitted. Legal Effects Of The Amending Act In Section 53-A In para fourth of Section 53-A of the Transfer of Property Act. In Section 49 of the Registration Act. This Amendment Act is not retrospective. the defence of part-performance is available also on the basis of an un-registered document. This Amending Act has made the following amendments relating to Section 53-A. 2001 and if such documents are not registered on or after such commencement. In section 17 of the Registration Act.e. the words “the contract though required to be registered.

Therefore. Therefore.g. The reason is aptly given by Mitra in the following words : “It is settled law that a writing which confers upon a person a right which will come into existence after fulfillment of certain conditions.2001. the Registration Act has made an exception to the settled substantive law with regard to the written contracts affecting immovable property. the date of enforcement of the amending Act 48 of 2001. An exception to this settled law has been made by inserting sub-section (1A) in the statute. the amendment in Section 53-A should be read together with amendments in Section 17 & Section 49 of the Registration Act. if such documents are not registered then they shall have no effect for the purposes of Section 53-A of the Act. The same amending act has simultaneously amended Section 17 and Section 49 of the Registration Act. assign. Further. limit or extinguish any right. In section 17 of the Registration Act.P Act. Page | 6 . which provides that written documents of the transfer of an immovable property with consideration (e. a new clause has been inserted (17-A). For example. of immovable property.is not the case.P Act and that of Section 17-A of the Registration Act is that Section 53-A shall not be applicable and the defence of part-performance cannot be available on the basis of un-registered documents which are executed on or after 24. Thus.09. it is to be noted that by inserting Section 17-A. does not require registration under Section 17-A. an obvious meaning of these amended provisions of Section 53-A of the T. for sale) must be registered for the purposes of Section 53-A of the T. and. title or interest whether vested or contingent. the contract of the transfer of immovable property with consideration as provided in Section 53-A is now compulsorily registrable document. an agreement for sale of an immovable property will not fall under section 17(1)(b) as it does not create.

Following are the essential elements/ mandatory conditions required to be fulfilled for the applicability of Section 53A: i There must be a contract to transfer an immovable property for consideration: The contract should be for the transfer of immovable property for consideration only. For example. gift is a 6(2004) 8 SCC 614 Page | 7 . Narayan Bapuji6. held that the doctrine of part performance aims at protecting the possession of such transferee provided that certain conditions are fulfilled.Essential Elements A valid contract Has done some act in furtherance to the contract Essential Elements Contract should be in writing and ascertainable Willingness of Performance Possession by Transferee or Continuance of Possession The Supreme Court in Rambahu Namdeo Gajre v.

the Court held that plea of part performance is not available to him because written contract is must for applicability of Section 53-A. Veerabadra Naiker v. it should be signed by the transferor or by any other person on his behalf. AIR 1992 All. Sambanda Naiker. The documents could not prove that he was ever ready and willing to perform his part contract. thus the doctrine of part performance will not apply in those cases. The Madras High Court held that he was not entitled to protection under Section 53-A against third party purchaser of the suit property. The contract must also be duly executed.7 The transfer must be for consideration.transfer without consideration. Writing alone is not sufficient.9 the party claiming protection under Section 53A. Where a tenant wanted to defend his possession on the ground that there was an oral agreement of sale with his landlord. 316. In S. The section is applicable also to mortgages with possession. That is to say. Therefore. could neither produce any written agreement nor any evidence of his possession over the suit property. it is necessary that the contract is either actually signed by the transferor or is signed by a person who has been specifically authorized to sign on behalf of the transferor and whose signature 7 Hamida v. The person who signs on his behalf must be a person who is authorized by him to sign the document. The terms are ascertainable with reasonable certainity. Humer. Section 53-A is applicable where the contract is for sale or for lease. Chandra Mohan Agniotri 8 that contracts entered between should be in writing and such that the terms of the contracts can be ascertained with reasonable certainty. 19 Page | 8 . ii Contract should be in writing and Ascertainable and with Reasonable Certainty: It was held in Govind Prasad Dubey v. Thus if the terms of the contract cannot be ascertained with reasonable certainty then this section cannot be enforced. It doesn’t applies to transfers made for gifts. it must clearly show that there is a transfer of property under the contract. 8 AIR 2009 MP 159 (DB) 9 AIR 2003 Mad.

in case of simple and other mortgages. Important Case law Serandaya Pillai v.can bind the transferor. Sankaralingam Pillai10 FACTS: A contract was entered into by the plaintiffs and the first and the second defendant to transfer an immovable property to the first defendant and that the first defendant. shall marry the second defendant. 100 or more as per Section 54 of the Act for the purpose of sale. mortgage. 100 or above is required to be deposited as per Section 59. The present act makes writing of the contract necessary for the property of value of Rs. exchanges under Section 118 and under Section 123 of the Act in case of gifts. Later the plaintiffs claimed back the said property saying that the gift was invalid as it was contrary to the Section 123 of the Transfer of Property Act and Section 17 of the Registration Act. exchange and a gift. mortgage and exchange require a written contract to take place and that the contract should be for a consideration. in case of lease extending one year as per Section 107 of the Act. gift. lease. Clearly. lease. 10(1959) 2 Mad LJ 502 (506) Page | 9 . ISSUE: Whether the defendants can take the defence of Part Performance under Section 53A of the Act in the given case and circumstances? HELD: It was said in the judgment that as per the section. a sum of Rs. there involves a consideration to be given for the property in a contract to sale. along with sale. in consideration of the said contract so made for transfer of property. The defendants were given the possession of the said property and the kist to be given was filed in the name of the second defendant for the years 1948 and 1949. The said contract was made orally.

this section shall not be applicable. it is not necessary that the vendor himself should have delivered the possession of the property. 200. Therefore. 12 Achayya v. If the transferee takes possession or continues his possession even on a part of that property. it falls within the ambit of Section 9 of the Act. If the transferee has not taken the possession of the property. thus. Venkata Sabha Rao. It is to be noted that this section requires that the transferee ‘has taken possession’ of the property. Page | 10 . his own conduct must be 11 Nagar Khan v. 13 Durga Prasad v.13 iv Willingness of performance: The transferee should be ready and should be willing to perform his part of the contract for the applicability of the contract. 83. Gopi Ram. Where the transferee has once taken possession of the property. AIR 1957 AP 854.12 The transferee need not be in possession of the whole property mentioned in the contract of sale. it is neither a sale nor a mortgage.11 The condition is that the transferee has taken possession in furtherance of or in partperformance of contract. AIR 1976 Pat. exchange or a gift. It is irrelevant as to whether the vendor himself has given the possession or not. Section 53-A is based on equity. the present case could not be said to fall within the ambit of Section 53A of the Act. where a person claims protection of his possession over a land under Section 53-A. AIR 1929 Raj. Transfer of Possession or Continuance in Possession: This requirements stipulates that the transferee either must have taken the possession of the property after the contract is made or if he is already in possession of the property. Kanhiya Lal. the promise to marriage was a consideration for the transfer of property which was taken as a consideration but since. lease. Thus. Hence. Therefore.In the present case. it is sufficient to give him the benefit of this section. Equity says that ‘one who seeks equity must do equity’. iii Performance of Contract by Transferee. the there only took place an oral transaction between the parties and not the contract in writing. he must have continued in possession. the fact that subsequently he lost that possession cannot deprive him of his rights under Section 53-A.

Willingness to perform the part ascribed to a party must not be conditional. a vendee who has taken possession of the property.equitable and just.14 the Kerela High Court held that such willingness in the context of Section 53-A of the T.P Act must be absolute and unconditional. Accordingly. The transferee did not bring any suit within the limitation period for specific relief. If the willingness is studded with a condition. The appellant filed for injunction and an injunction order was passed in favour of the appellant. It is an essential condition for the applicability of this section that the transferee must be willing to perform his part of contract. 249. yet the respondent sold the land through a registered sale deed. the appellant came to know that the respondent is negotiating for sale with another respondent for which the appellant filed a suit. cannot protect his possession under this section if he is not willing to pay the price agreed upon. After the execution of the agreement. 15(2002) 3 SCC 676 Page | 11 . Thomas Jacob. In Jacob Private Ltd. v. The appellants in pursuance of the agreement got the possession of the property. Equity of part-performance which is incorporated in this section cannot favour a transferee who is not ready and willing to do what is required from him. v. The court observed that where the vendee company expresses its willingness to pay the amount provided the plaintiff clears his income-tax arrears. there is no complete willingness and such a conditional willingness is not sufficient to arm the company with the shield provided by Section 53-A of the T. 14 AIR 1995 Ker. the respondents executed an agreement of sale of an agricultural land in favour of the appellant. Accordingly. it is in fact no more than an offer and cannot be termed as willingness. The transferee must himself be willing to perform his part of the contract. a person who has taken possession cannot resist dispossession if he is not willing to pay the price agreed upon.P Act. Prahlad Bhairoba Suryavanshi 15 FACTS: In the present case. Important case law Srimant Shamrao Suryavanshi and Anr. for no equities can arise in favour of a person who is not willing to perform his part of the contract.

payment of an increased rent under the terms of new agreement or. Here the appellant was able to prove the willingness to perform his part of the contract which is an important essential. Hence.. If the transferee is already in possession of the property then. along with this requirement all other requirements were also proved. he has to do some ‘further act’ in part-performance of that contract.ISSUE: Whether the appellant can defend his possession over the land by way of Part Performance under Transfer of Property Act even after the suit for specific performance for a contract to sale is barred by limitation? HELD: Even if the limitation period was over. where transferee was already in possession of the property. a person can obtain possession of property in part performance of a contract to sale. v Some Act in furtherance of contract. The court in this case has rightly applied the doctrine. This was interpreted so as there was not expressly said that the plea of part performance cannot be taken once the time limit for filing a suit for specific performance is expired. but this can only be done is the transferee can well prove that he has done some act in furtherance of the agreement or the contract or is willing to perform his part of the act in furtherance of the contract. it was the right of the appellant to have the defence of the doctrine which the court provided. In this case. after the contract of transfer. if the defendant has been in possession of property. In order to attract the provisions of Section 53-A. The court in this case allowed the appeal as it was not disputed that the appellants were willing to perform their part of the contract. all the requirements of Part Performance were complied with and the transferee was able to prove that he was willing to perform his part of the contract which fulfils the essential of performing some act in furtherance of a contract. the transferee can defend his possession in case filed by the transferor. For example. he must have done something more in pursuance of the contract. part-payment of the price where property is agreed to be sold to a mortgagee in Page | 12 .Taking possession is not the only method of partperformance of contract. Since. either in taken possession or in continued possession of the property.

the mortgagee himself made an application for the mutation of the documents to the municipal authority and that the mortgagee’s name was duly registered as the owner of the property. The mortgager himself. all the requirements of the part performance were fulfilled and that it was clear that the mortgagee had done some act in furtherance of the agreement to sale. There must be direct co-relationship between the contract and ‘act’ done. an unregistered agreement of sale was executed by the mortgager. Plaintiff in favour of the mortgagee. ISSUE: Can the Mortgagee defendant avail the defence of Part Performance in this case? HELD: An act should be done by the transferee in furtherance of the contract to transfer of property in order to avail the defence of part performance. the court said that the mortgagee can avail the defence of part performance. It is also necessary that the act done is only in furtherance of a pre-existing valid contract. Since. is a further act in part-performance of the agreement. thus. Important Case law Babu Murlidhar v. Defendant who was in possession of the property and would become the owner of the property if his name could be mutated into the mutation register of the municipality. in furtherance of the agreement to sale made an application for mutation to municipal authorities and mortgagee’s name was registered as the owner of the property. it was thus an act done in furtherance of the agreement to sale. in its furtherance. Since. the acts anterior to the contract or merely incidental to the contract would hardly provide any evidence of part performance. 16AIR 1970 Mys 203 Page | 13 . Soudagar Mohammad Abdul Bashir and Anr16 FACTS: In this case. Anything done in furtherance of the contract postulates the pre-existing contract and the acts done in furtherance thereof. Therefore.poseesion. There must be a real nexus between the contract and the acts done in pursuance of the contract and must be unequivocally referable to the contract.

FACTS: The original Plaintiff 1. the mortgagee by filing for the mutation of the documents in his name had done an act. Thereafter. Devi Sahai17 The mortgagee in this case failed to prove that he did any act in furtherance of the contract or that the mortgagee was willing to perform his part of the contract either of which is an essential to prove the case in favour. only then shall the defence of part performance can be availed. there must be some act done in furtherance of the contract. The Court held that the mortgagee was not entitled to the benefit under Section 53A and that he could not possess that property. of which the mortgagee failed to provide. dismissed the petition. 5. in this case. the court in this case thus. some negotiations took place between the two and the property was sold to the mortgagee but the sale deed for the same could never be registered. 1882 as there was some act done in furtherance of the contract to sale which was sufficient enough to put the mortgagee on the protection. On the other hand. The mortgagor on Oct. sufficient enough to prove that the act so done was in furtherance of the contract. 1945 served a notice to the defendant to show the full accounts of the mortgage. the mortgagor sold the property to the Plaintiff 2. Thus. As per the provision. Sardar Govendrao Mahadik (Mortgagor). both the plaintiffs filed a suit against the defendant for the redemption of the property. The mortgagee at that time was already in possession of the property. The mortgage was a mortgage with possession. mortgaged a property to sole defendant Devi Sahai (Mortgagee) at some rate of interest annually. Gyarsilal (Subsequent purchaser) via a registered sale deed. Thus. And. ISSUE: Can the mortgagee gain the benefit of Section 53A of the Act? 17AIR 1982 SC 989 Page | 14 .The Court held that this act was sufficient enough to protect the mortgagee under Section 53A of the transfer of property Act. Subsequently. the court by providing him relief of protecting his right to possession over the property had right done the justice. Important Case Law Govindrao Mahadik v.

HELD: The Court held that the mortgagee was not entitled to the benefit under Section 53A and that he could not possess that property. as the court shall not take any the mere act of continuing in possession of the property as evidence enough to provide the defence to the transferee. the mortgagee was already in possession of the property. the mortgagee failed to do so and thus the decision of the court to not to provide him with the defence under Section 53A of the Act was justified. In this case. In the present case. the judgment set a good precedent over when the transferee can avail the right over the property. He needed to prove something independent of the mere possession of the property and an act done in furtherance of the contract. The mere possession of the property is enough and a strong evidences when the mortgagee or the transferee is for the first time taking the possession of the property and not when he is already in possession of the property. This was due to the fact that the mortgagee could not prove that he has performed any act or is willing to perform any act in furtherance of the contract. Since. Thus. thus he was held not entitled to possession over the property. the mere possession of the property would render any result to the transferee. Mere already in possession of the property is not enough as the person may be in possession of the property pursuant to any other prior encumbrances. Page | 15 . an independent act than a mere possession of property was required to proved in such case. The mortgagee could not prove that he did any act in furtherance of the contract.

It does not give any right of action to the transferee.Nature Of Transferee’s Rights Under Section 53A No title or Interest in the Property. the right of the transferee in respect of the property in the possession will be protected. Andhra Pradesh that the transferee may also be a plaintiff if it is necessary to protect his possession. Madras and Punjab and Haryana High courts the transferee has to 18 Ram Chandra v. AIR 1939 All. Transferee. It was held according to the various High Courts in Allahabad. Orissa. limited because no right of eviction is available to transferee. whether as a defendant or as a plaintiff.Section 53A does not confer any title or interest on the transferee in the property in his possession. In India. Under English law. it can be used only as a shield and not as a sword. No Right of Action: Section 53A can be only used for defence. the equity of part-performance is passive equity. therefore. whether Plaintiff or Defendant? . AIR 1957 AP 854. Bombay. 611. The scope of Section 53-A is. The transferee can only defend his eviction in case he fulfils the conditions of this section. Maharaj Kumar. according to the Rajasthan. Achayya v. the equity of part-performance is also an active equity and gives to the transferee a right of action against his evictor.This section confers on the transferee a right to defend his possession. The transferor or anyone claiming under him will not be able to evict from the property because he can raise the plea of part-performance and this section will come for his protection. 18 But. it is not relevant. Page | 16 . It only specifies where the conditions of this section are fulfilled. Venkata Subbarao.

e. doctrine of part-performance give rise to an equity but in Indian law. to defend the right of the transferee. it can be used for enforcing the right as well as defending the right.  Under the English law. and he cannot maintain a suit on title. i. Sanatan Dharma Sabha.protect his possession only as ‘defendant’.e. AIR 1964 Raj. So. 11. This Section does not confer title on the defendant in possession. the doctrine of part-performance creates a title in the transferee whereas under the Indian law. However in India. Who can claim Protection against Whom? – The protection under the section can be availed of by the transferee or any person claiming under him against his transferor or any person claiming under him but not against a third person with whom he does not have a privity of contract. it gives rise to a statutory right of defence. AIR 1985 P& H 195.  Under the English law.19 However. Amrao Singh v. Difference Between English Law And Indian Law On Part Performance Section 53A has only partially incorporated the English doctrine of Part-performance. this doctrine can be used both as a sword and a shield. Page | 17 . even an oral agreement is sufficient to attract the application of this doctrine but in India. The points of difference between the two are discussed below:  Under the English law. it does not create any form of title in the transferee. the main point in this regard is his defence. the contract to which this section applies must be in writing and signed by the transferor. Thus it can be concluded that this section does not create a title in the defendant but merely acts as a bar to the plaintiff in asserting 19 Motilal v. it is irrelevant in what capacity he does so. i. it can be used only as a shield. the correct view on this point would seem to be that this section gives to the transferee only the right to defend his possession.20 The Supreme Court has approved this principle.  In English law. Jaswant Singh.

But.Banerjee v.N. B(previous transferee) cannot resist (subsequent transferee) from evicting B and taking possession of the land. and against whom the transferor is debarred from enforcing any right. 21 The question of proviso does not arise until and unless the claimant has substantiated his claim under the main part of this Section. if he is ready and willing of perform his part of agreement. if A sells the land to C through a duly executed and registered sale-deed and C has not the least knowledge of B’s rights of part-performance then.. Page | 18 . Under this section. A transferee who has come into the possession of the property in part performance of a written agreement can continue in possession.A who is owner of a land contracts to sell it to B. Ltd. this Section does not affect the rights of transferee for consideration who has no notice of the contract of sale or of partperformance. The contract is unregistered and in part-performance of this contract B takes possession of this land. have succeeded under the main part of this Section. Proviso : Transferee For Consideration Without Notice The proviso to this Section protects the rights of a subsequent transferee for value without notice of previous transferee’s rights of part-performance. DARASHAW J VAKIL’S COMMENTARIES ON THE TRANSFER OF PROPERTY ACT 595 (2nd ed Wadhwa Nagpur 2004). AIR 1941 PC 128. the transferor or any other person cannot dispossess B from the land. The proviso to the 20 S. Section 53-A shall not apply. The purpose of the proviso is to defeat the claim which would otherwise.his title. it is only in a case of suit for specific performance that the part performance assists plaintiff. And. However. Therefore. For example. It is limited to the cases where the transferee has taken possession. In such a case. 21 SOLI J SORABJEE. Kuchwar Lime & Stone Co. it is not necessary that the transferee should have filed a suit for specific performance within the limitation period prescribed for a suit for specific performance. other than that mentioned in the contract.

Thus. Srinivasan22 FACTS: The appellant in this case was the rentholder of the property and thereafter he entered into an agreement with the landlord for the purchase of the property. he was already living in that property or was in the possession of that property. Along with the suit for injunction dismissed but also the alternative suit filed for specific performance and monetary relief was also dismissed. A. the suit was dismissed in its entirety. in this case. ISSUE: Whether the appellant can exercise the right under Section 53A of the Act? HELD: The court in this case dismissed the petition on the following grounds: 1 When the appellant filed a suit for injunction. 22 (2003) 4 SCC 705 Page | 19 . The original landlord in 1983 sold the land to the respondent via a registered sale deed and transferred their right. and got eviction by the Rent Controller and the judgment was upheld by the High Court. Important Case law S. But the disputed fact remained of the agreement to sell made between the original landlord and the tenant. The burden for proving that he is a transferee for consideration without notice is on the transferee. title and interest in the property to the respondent including the suit premises. Parvarthamma v. thereby becoming a prospective buyer of the property. Since. Thus. nothing in the section shall affect the rights of the transferee for consideration who has no notice of the contract or the part performance thereof. The respondent in this case claimed himself to be the owner-landlord of a property seeking eviction of the appellant which the respondent claimed that he is the tenant of the said property. This was so held prior to the enactment of Section 53A. the respondent here became the subsequent transferee and as per the law under Section 53A of the Act. the respondent being the subsequent transferee has the right to protect his property rights under the section. the landlord-tenancy relationship superseded to the prospective buyer-seller relationship where the appellant became the buyer in possession of that property.Section saves the right of a transferee for consideration who has no notice of the contract or its part-performance.

In this case. the High Court upheld the decision of the Rent Controller and said that the appellant had no right over the property. Hence his rights should be safeguarded. the transferee was a bona fide purchaser and had no notice of the contract to sale of the property. This is so as the appellant had not disowned his character as tenant in the suit premises and that there was no evidence or findings that the appellant was in possession of the property pursuant to the contract to sale. nothing in the Section 53A of the Act shall affect the rights of the transferee. and and here the Defendant 2 was the subsequent transferee. As stated in Section 53 of the Act. Since. As per the law. it could not be said that the he performed or was willing to perform his part of the contract. Thus. the rights of the transferee are to be protected and taken care of. 3 Thirdly. he could not prove that he was in possession of the property in part performance of the contract. he in order to protect his benefit as the possessor of that property must show that he has done some act in furtherance of the contract and that the act must be effective from that day must be consistent with the contract alleged. In no case can the transferee’s rights over the property be affected if he had no prior notice of the contract or the part performance.2 Secondly. When a person who is already in possession of the property enters into a contract to purchase the property. It has been said that a subsequent transferee can retain the possession of the property if: 1 He has paid the whole amount 2 He has done so in bona fide and had no knowledge of the prior contract. the the Court thus was right in saying that the appellant had no right over the property and safeguarded the rights of the subsequent transferee. both the above requirements were met. Also the appellant did not pursue the matter further. with his suit for specific relief getting dismissed. Page | 20 . The case was held liable to be dismissed and was dismissed by the High Court. 4 Fourthly. the respondent who became the subsequent transferee had no notice of contract of part performance.

New Delhi. The Transfer of Propert Act. 11th ed.&sel=headnote&page=1 Page | 21 . Allahabad. B.. G.in/Section_41_of_Transfer_of_Property_Act..). Universal Law Publishing Co. 2014.lawnotes....  Sinha R. Commentary on Transfer of Property Act. Delhi. (Dr. Allahabad. Central Law Agency.. 2013. Textbook on The Transfer of Property Act.php? q=section+41+transfer+of+property+act.15th ed. Delhi Law House. 2011. Central Law Publications.). 17th ed.  Tripathi. 3rd ed. 2009.  Mitra B.Bibliography BOOKS & STATUTES  Singh Avtar (Dr. The Transfer Of Property . WEBLINKS  http://www.com/search/search. K.. P._1882  http://lawmirror.

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