INTRODUCTION:

The title ‘Part Performance’ itself suggests that a part of the contract has been performed by a
party. And the rule focuses upon saving the interest of the party who has performed some part of
his contract. The doctrine of Part Performance has been adopted in Indian Law from Common
Law. “Section 53A” of “Transfer of Property Act, 1882” embodies the rule of part performance.
It is also known as ‘equity of Part Performance’.

Despite the requirement for written signed contracts for the sale of
land, contracts that fail to meet the requirements may still bind the parties in equity under the
doctrine of part performance. This means that if there is evidence that an oral agreement to sell
or lease land has been partly performed, it may be enforced by the courts.
MEANING OF DOCTINE OF PART-PERFORMANCE:

The doctrine of part performance of contract is based on the general doctrine of prevention of
fraud. It is meant to protect the transferee who has taken possession, spent money in further
improvements. When a transferee has, in the faith that the transfer would be completed according
to the law, taken possession, it would be inequitable to allow the transferor to treat the transferee
as trespasser.

It is based on the Maxim ‘Equity looks on that as done

whom ought to have been done’. It means equity treats the subject matter of a contact 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 of contract have
not been yet completed. 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.

Section 53A says that if a person makes an agreement with another and lets the other person act
on the behalf of the contract; such a person creates an equity himself that cannot be resisted on
the mere grounds of absence of formality in the evidence or contract of such a transfer. Thus, if
the contract has not been registered or completed in the prescribed manner, the transferor can still
not go against the transferee or anyone claiming under him. However, the deed should not be
unsigned or unstamped. Nothing in this section affects the rights of a transferee for consideration
even if he had no notice of contract of part performance.

Basis of the doctrine of part performance are the following three maxims of equity:

 Who seeks equity must do equity.

 Equity treats that as done which ought to have been done.
  Equity looks to the intent rather than to the form.

Amendment of Section 53-A Transfer of Property Acts and other enactments:

Section 53A incorporates the doctrine of Part Performance. This section include in the Transfer
of Property Act by amending Act of 1929. Before this amendment, there was no enacted law in
India on this subject. The Anglo-Indian Courts used to apply English equitable doctrine of Part
Performance to Indian cases. But, the application of English equity to Indian cases was neither
certain nor uniform. In some cases the English Law was applied as such cases, the English law of
part-performance was applied but with some modifications.

An amendment has been made in Section 53A of the Transfer of Property Act by the Registration
and other Related Laws Act (48 of 2001) This Amending Act (48 of 2001) has made following
amendments relating to Section 53A:

1) In Section 53A, Para 4 of the Transfer of Property Act the words “the contract, though
required to be registered, has not been registered, or,” Omitted.

2) In Section 17 of the Registration Act, (a) after sub-section (1), the following subsection
shall be inserted :

“(1A) The documents containing contracts to transfer for

consideration, any immovable property for the purpose of Section 53A of the Transfer of
Property Act, 1882 shall be registered if it has been executed on or after the
commencement of the Registration and Other Related Laws and if such documents are
not registered on or after such commencement, then, they shall have no effect for the
purposes of the said Section 53A.”

3) In Section 49 of the Registration Act, in the proviso; the words, figures and letter “or as
evidence of part performance of a contract for the purposes of Section 53A of the
Transfer of Property Act, 1882,” shall be omitted.
 4) The provisions of this Amending Act (Act 48 of 2001) came into force with effect from
24.9.2001. This Amendment Act is not retrospective.

ENGLISH AND INDIAN LAW:

The English Law of Part Performance:

1) The contract need not be written or signed by the transferor

2 The right under the doctrine is an equitable right

3) It can be used for enforcing the right as well as defending the right; and

4) It creates a title in the transferee.

The Indian Law of Part Performance:

1) Section 53A deals with the Doctrine and state that the contract has to be written as well as
signed by the transferor

2) It is a statutory right;

3) It can only be used to defend the possession of the transferee; and

4) It does not create a title in the transferee.

There is difference in between the English and Indian doctrine of part performance:

i) According to the English law even oral agreement comes within the purview of this
doctrine on the strength of equity but it is not so in India.

ii) According to the English law both the plaintiff and defendant can avail of the doctrine
whereas it is not so in India. In India this doctrine is used as a shield and not as a
sword.
 EXAMPLES: The Acts which are Considered Part Performance:

There are some acts which are generally considered good examples of part performance: 1

 Deposit or taking possession of title deeds - a lender would usually take the borrower's
title deeds for security.

 Equity views this transaction as effective to create a mortgage.2

 It sees the deposit as evidence of an agreement to create a mortgage. It is considered to be

part performance by both parties.3

 Improvements to the property by the lessor at the request of the lessee.4

 Payment of the purchase price and making improvements.5

 Taking possession of land.6

EXAMPLES: The Acts which are Not Considered Part Performance:

There are some acts which are generally considered insufficient to constitute part performance:7

 For contracts for sale of land, mere payment of purchase money is insufficient.8
 The making of an application for a planning permission is insufficient. 9

1
Property Textbook, pp. 317-8 [4.44].
2
Russel v Russel (1783) 1 Bro CC 269.
3
Theodore v Mistford (2005) 219 ALR 296.
4
Rawlinson v Ames [1925] Ch 96.
5
Pejovic v Malinic (1959) 60 SR (NSW) 184
6
Regent v Millett (1976) 133 CLR 689.
7
Property Textbook, p. 318 [4.44].
8
Britain v Rossiter (1879) 11 QBD 123.
9
New Hart Builders v Brindley [1975] Ch 342.
 ESSENTIALS OF THE DOCTRINE OF PART PERFORMANCE:

a) There must be a written contract for transfer of an immovable property signed by or on behalf
of the transferor. The doctrine cannot be applied if there is a void agreement or no agreement.

b) There must be consideration;

c) The contracts should give out the terms of the transfer with reasonable certainty;

d) The transferee must have taken possession as a result of this contract or continued in
possession if he was already in possession of the property;

e) The transferee must have done some act in furtherance of the contract. Acts done prior to the
agreement or independent of it cannot be deemed to be part performance of the contract; and

f) The transferee should have performed his part of the deal or be willing to perform it.

When the above mentioned conditions are fulfilled, the transferee can defend his continuous of
possession over property. In other words, if these requirements are fulfilled, the transferee is
entitled to claim, under this section, that he should not be dispossessed or evicted from the
property.

For the application of section 53-A, it is necessary that the

conditions laid down must be complied with. The transferee amongst other things must get
possession of property and the transfer of immovable property must be registered as per the
Registration Act, 1908. If the possession of disputed land is not given to transferee the
registration of transfer deed is not required to be registered.10

10
AIR 2015 Del 5.
 OBJECT BEHIND THE DOCTRINE:

The main and foremost object of the doctrine of Part Performance is to prevent fraud.

Section 53A of the Transfer of Property Act lays down that where any person contracts to
transfer ---
a) For consideration,
b) Any immovable property,
c) 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 willing to perform his part of the contract,
 Then not withstanding that where there is an instrument of transfer, that the transfer has
not been completed in the manner prescribed therefore by the law for the time being
in force
a. 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
b. Of which the transferee has taken or continued in possession, other than a right
expressly provided by the terms of the contract.

It has also been provided by the section 53A, as an exception to this rule, that nothing in
this section shall affect the rights of a transferee for consideration
i) Who has no notice of the contract or
ii) Of the part performance thereof.
 NATURE OF TRANSFEREE’S RIGHTS UNDER SECTION 53-A:

1) No title or interest in property.

2) Passive equity; no right of action.

3) Transferee as Plaintiff or Defendant?

1) No title or interest in property:

Section 53A does not affect the ownership rights of the proposed transferor who remains full
owner of the lands till they are legally conveyed by sale-deed to the transferee. This section
provides that when the conditions laid down in it are fulfilled, the transferor or any other person
cannot evict the transferee. The transferee can get title of the property under the contract of sale
only after its registration. This section entitles the transferee merely to protect his possession for
getting the title under the contract of sales. Its registration is necessary.

So, this section does not defeat the provisions of the Registration
Act or Transfer of Property Act. Section 53-A does not affect the ownership rights of the
proposed transferor who remains full owner of the lands till they are legally conveyed by sale-
deed to the transferee. He continues to be the owner of lands for all purposes including
computing of areas of land under the land ceiling legislation. 11

2) Passive equity; no right of action:

Section 53A merely provides rights of defense; it can be used only as a shield not as a sword.
The scope of this section is therefore, limited because no right of action is available to transferee.
Where a transferee takes possession of an immovable property, he can raise the defense of part-

11
State of U.P. v. District Judge, AIR 1997 SC 53.
performance in case he evicted by transferor or any other person. He is not entitled to restrain the
transferor from transferring the property to any other person.

The Supreme Court observed in a case before it that the benefit of the section is not available to a
transferee who remains passive. The suit was for declaration of title and possession by the
purchase of property. The defendants claimed that they had been put in possession in part
performance of the earlier agreement of sale. They did not intimate to perform their part of the
contract. There was no evidence to show that the plaintiff had notice of the earlier agreement. It
was held that the defendants were not entitled to the protection of section 53-A.12

3) Transferee as Plaintiff or Defendant?

It is settled that this section confers on the transferee only the right to defend his possession
when he is being evicted by a person having better title. But hoe he may defend his possession, is
not clear. Is it necessary that he must always be ‘defendant’ or can also be ‘plaintiff’ if needed for
defending his possession?

Opinions of the High Courts are dividing into this point. According to the Allahabad, Bombay
and Andhra Pradesh High Courts under this section the transferee may also be ‘plaintiff’ if it is
needed to protect his possession.13 But, according to the Rajasthan, Orissa, Madras and Punjab
and Haryana High Courts the transferee has to protect his possession only as ‘defendant’. 14

12
A. Lewis v. M.T. Ramamurthly, AIR 2008 SC 493.
13
AIR 1957 AP 854, AIR 1994 Bom. 254.
14
AIR 1964 Raj.11, AIR 1952 Ori.143, AIR 1985 P& H 195, AIR 1981 Mad.310.
 RIGHTS OF SUBSEQUENT TRANSFEREE FOR VALUE:

The proviso to this section protects the interests of a subsequent transferee for value without
notice of previous transferee’s right of part-performance. Therefore, this section does not affect
the rights of transferee for consideration who has no notice of the contract of the sale or of part-
performance. Thus, any rights which the transferee under this section may have against the
transferor would not be of any avail against a bonafide transferee for value having no notice of
the transaction. The burden of proving that the subsequent transferee had notice lies on the
person claiming the benefit of part-performance.15

In the case of Vasanthi v. Venugopal 16, in the suit for declaration of title and performance, the
defendant was in occupation of this suit premises as a bonafide purchaser without notice of the
sale agreement with the plaintiff. The plaintiff had no notice of sale or the fact that the defendant
was in occupation of the suit property by way of part performance. The defendant not shown to
be ready and willing to perform his part of the contract. Readiness and willingness was also not
pleaded in the written statement.

It was held that the sale deed in favor of the plaintiff was valid and subsisting. The defendant was
not entitled to the benefit of protection under section 53-A of the Transfer of Property Act, 1882.

15
AIR 1952 Orissa 163.
16
AIR 2017 SC 1569.
 CONCLUSION:

Although historically the cases on part performance fall into two groups, fraud and possession,
the reasons behind the possession group are purely historical, and that consequently those cases
should have no influence as precedents upon modern cases.

The phrase "part performance" is a misnomer. Cases should

not be taken out of the statute because of certain types of acts of part performance, but solely to
prevent fraud. In other words, the golden thread running through the cases on part performance
and the Statute of Frauds is the prevention of fraud.

American Courts are showing a marked tendency to rest the

doctrine upon equitable fraud, insisting, however, that the acts in question be referable to a
contract, in order to prevent the very evil which the statute was passed to prevent. There should
not be a case of equitable fraud unless the plaintiff will be placed in a position where he will
suffer irreparable injury if specific performance is refused. This result is in accord with general
equitable principles and does not thwart the policy of the statute.
 BIBLOGRAPHY:

BOOKS:

 G.C.V SUBBARAO’S LAW OF TRANSFER OF PROPERTY ACT,(FOURTH

EDITION)

 Dr. AVTAR SINGH, TEXT BOOK ON THE TRANSFER OF PROPERTY ACT, (2 nd

EDITION, 2009)

 MULLA ON THE TRANSFER OF PROPERTY ACT, (10th EDITION, 2006).

 Dr.G.P.TRIPATHI ON THE TRANSFER OF PROPERTY ACT, (16 th EDITION,

2009).

 Dr. POONAM PRADHAN SAXENA, PROPERTY LAW, (2nd EDITION, 2011)

 S.N.SHUKLA ON THE TRANSFER OF PROPERTY ACT, (27th EDITION, 2009).

STATUTES:

 TRANSFER OF PROPERTY ACT, 1882.

 TRANSFER OF
PROPERTY ACT, 1882
ASSIGNMENT CA – 2
TOPIC: SECTION 53-A
PART-PERFORMANCE
SUBMITTED BY:
NITIKA
11511201
SEC- L1503
 BBA-LLB (H)
SCHOOL OF LAW

LOVELY
PROFESSIONAL
UNIVERSITY
TABLE OF CONTENTS

 Introduction.
 Meaning.
 Amendment of Section 53A.
 English and Indian Law.
 Difference in between the English and Indian
doctrine.
 Acts which are Considered Part Performance.
 which are Not Considered Part Performance.
 Essentials of the Doctrine.
 Object behind the Doctrine.
 Nature of Transferee’s Rights.
 Rights of Subsequent transferee for value.
 Conclusion .
 Biblography.