INTERNATIONAL ISLAMIC UNIVERSITY

ISLAMABAD
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
2859-SF/LLB/F08
The Doctrine of Part Performance
This doctrine has been discussed in the Transfer of property act IV of 1882
section 53-A.
53A. 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, and 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 in possession in part performance
of the contract and has done some act in furtherance of the contract, and
the transferee has performed or is willing to perform his part of the
contract, then, notwithstanding that the contract, though required to be
registered, has not been registered, or, where there is an instrument of
transfer, that the transfer has not been completed in the manner
prescribed therefor by the law for the time being in force, 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
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.

Comment: Since the appellant's claims is founded on 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. Thereby the plea of adverse
possession is not available to the appellant. Muhammad Alam v. 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. Without written evidence, a contract
does not satisfy the formal requirements set by legislatures under their
statutes of frauds. However, despite this clear legislative mandate, courts
have regularly recognized exceptions based on acts taken by one or both
of the parties in performing under the otherwise unenforceable contract.
Considerations of fairness lead courts to apply an equitable exception to
the usual legal result mandated by the statute of frauds. This is the
equitable doctrine of ''part performance,'' under which a court, through its
equity powers, may provide equitable remedies to a party, including
specific performance of an oral contract. If properly established, the
doctrine of part performance allows a court to recognize and enforce an
oral contract despite its legal deficiencies.

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. PLD 2002 Supreme Court
702

Where vendee has committed default in performing his part of

contract, he cannot continue to remain possession in the grab of
protection of agreement to sell. 2002 CLC 433

The doctrine of part performance provides a way around the

statutory bar to the enforcement of an oral contract. When it applies, a
party can establish the existence of a contract despite the lack of any
written evidence. In such a case, proof of the contract may be sufficient
even though it is made entirely by parole evidence. Nonetheless, a party
must still meet the burden of proving the existence of the contract by
clear and convincing evidence.

The enforcement of an oral contract always involves two evidentiary

steps. First, 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; in other words, the evidence
presented must convince a court that the doctrine of part performance is
satisfied. Second, the party must prove all the elements normally required
for recognition of a contract between the parties. The evidence must show
a meeting of the minds based on an offer and a sufficient acceptance, as
well as the consideration necessary for a valid contract. There must also
be no proof of mistake, misrepresentation, or illegality that would
otherwise invalidate the contract.

Notably, even in cases where the circumstances would justify the

defense of failure to satisfy the statute of frauds, 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. A defense otherwise
available under the statute of frauds is waived if it is not pleaded.

Application of the doctrine of part performance either takes a case

involving an oral contract out of the statute of frauds (that is, it makes the
case an exception to the statute) or takes the statute out of the case (that
is, the statute is held to be inapplicable).

One common justification for applying the doctrine of part

performance is that it satisfies the same policy considerations as the
statute of frauds itself. The original statute of frauds expressly aimed to
prevent fraud and perjury. However, in cases where part performance has
occurred, 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. If the statute of frauds were strictly applied in such a
case, 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.

It is important to draw a distinction here, however. The mere

existence of an oral contract does not give either party the right to
demand specific performance of the contract. The statute of frauds is
designed to prohibit enforcement in this situation. Thus, one party's mere
breach of a promise, in the absence of acts by the other party in reliance
on the contract, gives rise only to ordinary contractual remedies. The
extraordinary equitable remedy of specific performance is not available.

A different situation arises if, between the dates an oral agreement

is made and the date of an enforcement action, a party acts in reliance on
the contract and changes circumstances as a result. 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 applying the doctrine of part performance, the courts are

responding to the equities in the particular case. In such a case, because
of the parties' change of position, the courts cannot adequately return the
parties to their prior situations. Reliefs through actions at law for damages
or restitution, for example, are considered inadequate. Therefore, 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.
Charges of unfairness relating to the statute of frauds stem largely
from the nature of the statute. As a statute that imposes certain formal
requirements on transactions, its application has the potential for
defeating parties' actual intentions. 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. Courts have also tended to provide equitable
remedies in order to avoid the substantial injury that can result when legal
remedies are inadequate. Because the part performance doctrine
operates as a judicially developed equitable exception to the strict
operation of the statute of frauds, however, most modern courts are
reluctant to extend the exception beyond those situations traditionally
recognized by the courts.

Notably, the ''doctrine of part performance'' is not an accurate

name. The doctrine may apply even where no acts required under the
contract are performed. 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. 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, but they are not acts that are
literally required for performance of the contract. Thus, a better
descriptive title for the doctrine would be the ''doctrine of acts performed
in reliance on an oral contract.'' Reliance can include both acts taken to
perform obligations under the contract and acts undertaken in reliance on
the oral agreement. However, courts have used the narrower, and
technically inaccurate, term for so long that it is a handy nickname for the
rule as long as the doctrine's broader applications are recognized.

The burden of proof is on the party who is asserting the doctrine of

part performance. The existence of the alleged acts of part performance is
a question to be decided by the jury or another trier of fact, while the
sufficiency of the acts of part performance is a determination left to the
judge as a matter of law. 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. The necessary conditions are

1) there must be a contract to transfer for consideration any immovable

property;
2) the contract must be in writing, signed by the transferor, or by
someone on his behalf;

3) the writing must be in such words from which the terms necessary to
construe the transfer can be ascertained;

4) the transferee must in part performance of the contract take possession

of the property, or of any part thereof;

5) the transferee must have done some act in furtherance of the contract;
and

6) the transferee must have performed or be willing to perform his part of

the contract.

We are, therefore, of the opinion that if the conditions enumerated above

are complied with, 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.

Case Law on the Doctrine of Part Performance:

PLD 1962 Supreme Court 134
Abdul Razzak Hawaldar-Appellant
Versus
Muhammad Shafi-Respondent
Civil Appeal No. 18-D of 1961, Decided on 1st March 1962
In this case the applicability doctrine of Part performance is discussed as;
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. A charge
admittedly does not transfer any interest and therefore this section cannot
be invoked in respect of a charge.

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. A lease is a transfer of immoveable
property and to a lease deed which requires registration section 53-A will
be applicable if its conditions are satisfied. 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.

In the present case the lease was created for a period of five years.
It could not, in view of the provisions of section 107 of the transfer of
property act be created by an unregistered document. 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 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''.

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.

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, and the case of the plaintiff has been that he is such
transferee. The high court had, after a consideration of the whole
evidence, come to the conclusion that the plaintiff had no notice of what is
contained in clause II. Before us it has been contended by learned council
for the appellant on the strength of some cases from pre-partition India,
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.