DOCTRINE OF PART PERFORMANCE AND ITS

RELEVANCY
TRANSFER OF PROPERTY ACT

RISHABH TIWARI
ROLL NO. 18
SEMESTER VII

SUBMITTED TO: MAHENDRA KUMAR

ASST. PROFESSOR
TRANSFER OF PROPERTY ACT

SCHOOL OF LAW
GURU GHASIDAS UNIVERSITY, BILASPUR

22
 DECLARATION

I, RISHABH TIWARI, Roll Number, B.A. LL.B Semester VII of Guru

Ghasidas University do hereby declare that, this project is my original work and
I have not copied this project or any part thereof from any source without due
acknowledgement. I am highly indebted to the authors of the books that I have
referred in my project as well as all the writers of the articles and the owners of
the information taken from website for it. It is only because of their contribution
and proper guidance of my faculty advisor Dr. Mahendra Kumar, that I was
able to gather light on the subject.

RISHABH TIWARI
Roll No. 18
B.A. LL. B Semester VII

22
 CERTIFICATE
I am glad to submit this project report on “DOCTRINE OF PART
PERFORMANCE AND ITS RELAVANCY” as a part of my academic
assignment. The project is based on Research Methodology. It further studies
meaning, sources and methods of Research Methodology and further discusses
the Interview Method. I hope this would be significant for Academic purposes
as well as prove information to all readers.
Here through I declare that this paper is an original piece of research and all the
borrowed text and ideas have been duly acknowledged.

RISHABH TIWARI FACULTY SIGNATURE:

Roll No. 18
B.A. LL. B Semester VII

22
 ACKNOWLEDGEMENT
I would like to express my earnest and deepest gratitude to Dr. MAHENDRA
KUMAR, Faculty for TRANSFER OF PROPERTY ACT for giving me this
opportunity to do a project on such a valuable topic of “DOCTRINE OF
PART PERFORMANCE AND ITS RELEVANCY”. I am grateful for the
assistance, guidance and support that were extended during the course of
excellent research. I am also thankful to the college administration for providing
the resource necessary for the research work. I thank my parents and friends for
their moral support and love throughout my research work and project
preparation. Above all I thank the God Almighty for blessing me with the health
and vitality to complete this project.

RISHABH TIWARI
Roll No. 18
B.A. LL. B Semester VII

22
 SYNOPSIS
DOCTRINE OF PART PERFORMANCE AND ITS RELEVANCY
TRANSFER OF PROPERTY ACT
1. INTRODUCTION.
2. PART PERFORMANCE IN INDIA BEFORE 1929
3. DOCTRINE OF PART PERFORMANCE UNDER SECTION 53-A OF
TRANSFER OF PROPERTY ACT.
4. ESSENTIAL CONDITIONS FOR THE APPLICATION OF SECTION
53-A.
A. CONTRACT FOR TRANSFER OF IMMOVABLE PROPERTY.
B. WRITTEN CONTRACT.
C. TRANSFER FOR CONSIDERATION.
D. MOVABLE PROPERTY.
E. VALID CONTRACT.
F. POSSESION IN FURTHERANCE OF CONTRACT.
G. SOME ACT IN FURTHERANCE OF CONTRACT.
H. TRANSFEREE IS WILLING TO PERFORM HIS PART OF
CONTRACT.
5. NATURE OF TRANSFEREE’S RIGHT UNDER SECTION 53-A.
6. RELEVANCY OF DOCTRINE OF PART PERFORMANCE.
7. DIFFERENCE BETWEEN ENGLISH AND INDIAN LAW.
8. CONCLUSION.

SUBMITTED TO SUBMITTED BY
DR. MAHENDRA KUMAR RISHABH TIWARI
ASST PROFESSOR B.A. LL. B VII SEM
TRANSFER OF PROPERTY ROLL NO. 18

22
 INTRODUCTION
Doctrine of Part Performance is an equitable doctrine. It is also known as
“equity of part-performance”. Under this doctrine, if a person has taken into
possession of an immovable property on the basis of a contract of sale and has
either performed or is willing to perform his part of 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. Property is one of the most
fundamental elements of the socio-economic life of an individual. Juridically,
property can be said to be a bundle of rights in a thing or a land. However, the
word has gradually been given a wider meaning. Economic significance of the
property, therefore, rests more on its dispositions. Property law has therefore
become an important branch of civil law. The Transfer of Property Act, 1882
deals with the transfer of immoveable property inter-vivos (although some
provisions deal with the transfer of moveable as well as immovable property).
Before this enactment, the transfers of immovable property were mostly
governed by English equitable principles as applies by Anglo-Indian Courts.
The ‘doctrine of part-performance’ is one of the equitable doctrines applied by
these Courts.
The Doctrine of Part Performance finds its basis from the concept of equitable
rule of part performance which the Court of Chancery developed under the
English legal system. The first case where the Court of Chancery implemented
the rule was Foxcroft v. Lyster , it was observed by Lord Redesdale,
“It was against the conscience to suffer the party who had entered and expended
his money on the faith of a parol agreement to be treated as a trespasser and the
other party to enjoy the advantage of the money he had laid out”.
This doctrine was subsequently added to the Transfer of Property Act, 1882 by
virtue of Section 53A by the Amendment Act of 1929. The section stipulates for
protecting prospective transferees in order to allow them to retain possession of
the property against the transferors who execute an incomplete instrument of
transfer and afterwards fail to complete it in the manner laid down by the law
without there being any fault on part of the transferee. The Privy Council and
the Supreme Court has described this section as a partial importation of the
equitable doctrine of part performance. Like in England, this section does not
stipulate for equity through part performance, it’s only available as a statutory
right.

22
 PART PERFORMANCE IN INDIA BEFORE 1929

The Supreme Court in Shrimant Shamrao Suryavanshi vs Pralhad Bhairoba

Suryavanshi has discussed the law relating to Part Performance under S. 53 A of
the Transfer of Property Act and whether such a defence could be taken by a
person to protect his property, even though the limitation to bring an action for
specific performance to enforce such contract has expired. The Supreme Court
while examining the law in England has held as under;
A perusal of Section 53-A shows that it does not forbid a defendant transferee
from taking a plea in his defence to protect his possession over the suit property
obtained in part performance of a contract even though the period of limitation
for bringing a suit for specific performance has expired. It also does not
expressly provide that a defendant transferee is not entitled to protect his
possession over the suit property taken in part performance of the contract if the
period of limitation to bring a suit for specific performance has expired. In
absence of such a provision, we have to interpret the provisions of Section 53-A
in a scientific manner. It means to look into the legislative history and structure
of the provisions of Section 53- A of the Act.
Earlier, the assistance of historical facts or any document preceding the
legislation was very much frowned upon for purposes of construction of
statutes. At that time, there was some injunction against applying principle of
looking into the historical facts or reports preceding the legislation in construing
a statute. However, by passage of time, this embargo has been lifted.
In R.S. Nayak vs. A.R. Antulay - 1984 (2) SCC 183, it was held thus:

" Report of the Committee which preceded the enactment of a legislation

reports of Joint Parliament Committee report of a commission set up for
collecting information leading to the enactment are permissible external aid to
construction. If the basic purpose underlying construction of legislation is to
ascertain the real intention of the Parliament why should the aids which
Parliament availed of such as report of a Special Committee preceding the
enactment existing State of Law, the environment necessitating enactment of
legislation and the object sought to be achieved be denied to Court whose

22
 function is primarily to give effect to the real intention of the Parliament in
enactment of the legislation. Such denial would deprive the Court of a
substantial and illuminating aid to constructions.
When the Transfer of Property Act was enacted, Section 53-A did not find place
in it. In the absence of Section 53-A, there arose difference of opinion between
various courts in India as regards the application of English doctrine of part
performance of contract as it was then prevailing in England. Since there was a
difference of opinion on question of the application of English equitable
doctrine of part performance in various courts of India, the Govt. of India
resolved to set up a Special Committee for making recommendations amongst
others whether the British equitable doctrine of part performance be extended in
India also. The Special Committee was of the view that an illiterate or ignorant
buyer who had partly performed his part of contract required statutory
protection. The Committee was of the further view that where a transferee in
good faith that lawful instrument i.e. a written contract would be executed by
the transferor takes possession over the property, the equity demanded that the
transferee should not be treated as trespasser by the transferor and subsequently
evict him through process of law in the absence of lawful transfer instrument.
The Special Committee also considered the question whether protection under
the proposed Section 53-A to a transferee would also be available even if the
period of limitation for bringing an action for specific performance of an
agreement to sell has expired. On the said question, the Committee was of the
view that even after expiry of period of limitation, the relationship between the
transferor and transferee remains the same as it was within the period of
limitation and, therefore, the possession over the property taken in part
performance of an agreement is required to be protected even if the period of
limitation for bringing an action for specific performance has expired.

The aforesaid recommendation of the Special Committee were accepted by the

Govt. of India as the same is well reflected in the aims and objects of amending
Act 1929 whereby Section 53-A was inserted in the Act.

The Special Committee's report which is reflected in the aims and objects of
amending Act 1929 shows that one of the purposes of enacting Section 53-A
was to provide protection to a transferee who in part performance of the

22
 contract had taken possession of the property even if the limitation to bring a
suit for specific performance has expired. In that view of the matter, Section 53-
A is required to be interpreted in the light of the recommendation of Special
Committee's report and aims, objects contained in amending Act 1929 of the
Act and specially when Section 53-A itself does not put any restriction to plea
taken in defence by a transferee to protect his possession under Section 53-A
even if the period of limitation to bring a suit for specific performance has
expired.

DOCTRINE OF PART PERFORMANCE UNDER SECTION 53-A OF

TRANSFER OF PROPERTY ACT

Section 53A of the Transfer of Property Act, 1882 as inserted by the Transfer of
Property (Amendment) Act 1929 stipulates the following:
“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 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, 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.”

22
 Upon analysis of the section, in order for a claim to be based under Section 53A
of the Transfer of Property Act, the following postulates are essential:
(i) A contract to transfer any immovable property for consideration should be
there.
(ii) The contract must be in written form (cannot be oral), and the transferor
must sign the same or someone on his behalf must.
(iii) The terms necessary for the purpose of construing the transfer much be
clearly ascertainable from the writing in the contract.
(iv) The possession of the property or of any part thereof must have been taken
by the transferee in part performance of the said contract.
(v) Some act to further the contract must have been done by the transferee.
(vi) The transferee must have performed or be willing to perform his part of the
contract.
It depends on the facts and circumstances of each case as to what constitutes
part performance. Roughly speaking, in order for an act to constitute part
performance the act must be done in furtherance of the specific contract to
which the doctrine is being applied and should be distinct from the acts which
are ancillary or introductory or refer to some other arrangement. It is well
settled that in order for an act to be considered as a part performance of a
contract the same must be referable unequivocally to such a contract and must
not be relatable to any other understanding or any other contract.
When the property is taken charge of only for the purposes of maintenance,
repairs, improvements then in such a case the handing over of the possession for
research purposes would not be covered under the part performance in
furtherance of the contract, and thus is not covered by this section. An equitable
entitlement cannot be given rise to in reference to part performance of an
agreement in the cases when such gaining opposition is unrelated to the
agreement.

22
 ESSENTIAL CONDITIONS FOR THE APPLICATION OF SECTION 53-
A

The essential conditions required to be fulfilled for claiming protection of

Section 53A of the Transfer of Property Act are as under: [Rambhau
Namdeo Gajrav Narayan Bapuji Dhotra (2004) 8 Supreme Court Cases
614]

(i) There must be a contract to transfer for consideration any

immovable property
 Section 53A applies to leases and agreement to lease [Maneklal
Mansukhbhai V. Hormusji Jamshedji Ginwalla & Sons AIR 1950 SC1] where in
an action to eject a lessee on the ground that he had no registered deed of lease
executed in his favour the defendant lessee takes the plea of part performance
and proves that there was a written and signed contract of lease in his favour and
that he had taken possession in accordance with the terms of the agreement and
had built a factory on the land and also that he was paying rent to the plaintiffs in
accordance with that agreement the defendant is entitled to retain possession in
spite of an absence of the registered deed.]. Agreement to lease may be
evidenced by correspondence.

 Section 53A applies to mortgages with possession.

 If the agreement is void under any law, section 53A will not protect
possession. The protection of part performance cannot be availed in respect of a
transaction which is null and void. (CIT v. Vithalbhai P. Patel (1999) 236 ITR
1001). Sale ab initio null and void as per order of Collector in view of Section 4

22
 of Gujarat Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972.
Oorder of Collector was not challenged. No transaction of sale in eye of law.
Sale not liable to tax on capital gains.

 In case of a agreement conditional on compliance with statute, there is an

implied term in the contract that transferor will apply for requisite permission
and the court will direct him to do so. (Nathulal V. Phoolchand AIR 1970
Supreme Court 546)

(ii) The contract must be in writing, signed by the transferor, or by

someone on his behalf.

 It is not necessary that there should be a formal agreement.

(iii) The writing must be in such words from which the terms necessary to
construe the transfer can be ascertained.

(iv) The transferee must in part performance of the contract take

possession of the property, or of any part thereof,

 It is not necessary that the contract must contain a direct covenant

regarding transfer of possession.

 It is only necessary that possession should have been taken (need not be
given) in part performance of the contract.

 Where only temporary possession was given for carrying out

construction, it was held that the exclusive possession in the legal sense
remained with the Transferor and the Transferee was not entitled to protect his
possession under Section 53 A of the TP Act.

22
  It is not necessary that the transferee must be in possession of the entire
property.

 It is enough if the transferee continues in possession or takes possession

even of a part of the property.

(v) The transferee must have done some act in furtherance of the
contract.

 There should be real nexus between the contract and the acts pleaded as
in part performance.

 Continued possession of a tenant in the property after entering into the

sale agreement would not by itself amount to a part-performance. There must be
some act attributable to the contract for sale and not lease.

 When a person already in possession of the property in some other

capacity enters into a contract to purchase the property, to confer the benefit of
Section 53A of TP Act, there must be some act consistent with the contract
alleged and such as cannot be referred to the preceding title. [AIR 2003 SC
3542].

 A tenant who continued to be in possession as tenant, cannot take benefit

of Section 53A, though subsequently an agreement to sale is entered between
the parties.

 Where the person puts up construction after being put in possession under
the contract of sale or takes electricity connection, he can gain protection of
Section 53A of the TP Act.

22
 (vi) The transferee must have performed or be willing to perform his part
of the contract.

 The acts claimed to be in part performance must be unequivocally

referable to the pre-existing contract.

 Section 53A confers no rights on a party who was not willing to perform
his part of the contract.

 Part performance as statutory right is conferred upon the transferee on

condition that the transferee continues to be willing to perform his part of the
contract.

(vii)The document containing contract for transfer of immoveable

property, if executed on or after 24th September, 2001 should be registered.

 Part performance applies even if specific performance is not otherwise

permissible.

The protection under section 53A can be availed of only under a registered
agreement. Sukhminder Kaur V. Amarjit Singh AIR 2012 Punjab & Haryana
97 Section 53-A of the T.P. Act before amendment recognized part performance
of the contract even though the contract used to be unregistered and the
transferee’s rights to remain in possession was protected. By the Amendment
Act No.48 of 2001, the words “the contract though required to be registered, has
not been registered, or” have been omitted from the provision. The effect of the

22
 amendment is that now if any person takes possession in pursuance to a contract
which is required to be registered but has not been registered, the transferee has
no right to remain in possession of the property. To give effect to this principle,
S. 17 (1A) has accordingly been inserted in the Act of 1908 which mandates
that such contract is now required to be registered. If such a contract entered
into after the amendment is not registered then as per S. 49 of the Act of 1908,
the same can neither affect any immovable property comprised therein nor will
it be received as evidence of any transaction affecting such property or
conferring such power.
 A person seeking protection of his possession on the basis of unregistered
agreement is a different situation and where a person seeks possession of the
property by way of specific performance of the agreement which is unregistered
is a different eventuality. In the latter class of cases, the agreement to sell is not
required to be registered as it does not fail within the ambit of either S.53-A of
the T.P. Act or S. 17(1A) of the Act of 1908 and does not require any
registration. Such agreement to sell falls under the mischief of S.17(2)(v) of the
Act of 1908. It itself does not create, declare, assign, limit or extinguish any
right, title or interest in the property. Rather it creates a right to obtain another
document which will, when executed, create, declare, assign, limit or
extinguish. It is the sale deed which when executed will create right, title and
interest in the property. Hence, an agreement to sell is not required to be
registered and the same is receivable in evidence in a suit for specific
performance.

 A transferee in-possession satisfying all conditions of the section 53A is

protected by the Court, whether he comes as a plaintiff or as a defendant. The
court cannot tell the transferee-in-possession if he comes as a plaintiff – ‘go
back, use your physical strength and muscle power to resist and repel the attack
of the transferor and drive him to come to the court as a plaintiff and then if you
are arrayed as a defendant, the court will protect you.” Chetak Construction
Ltd. v. Om Prakash AIR 2003 M.P. 145.

22
 NATURE OF RIGHT
It is evident from the plain reading of this section that in order to avail the shield
as provided by the section, a transferee, apart from satisfying other conditions,
must have taken possession in part performance of the contract of the property
in question and the same must have been done in furtherance of the contract.
If the contract in question does not fulfil the requirements of a valid contract
then the plea under this section cannot be considered by the court. Thus, there
has to be a valid contract in order for a transferee to avail protection under this
section. The scope of this section is only limited to imposing a bar against the
enforcement of rights by a transferor in respect of a property of which the
possession has already been taken by the transferor. The section does not give
any right to the transferee to claim possession or any other right on the basis of
an unregistered transfer; it is only available as a defence to the transferee. In
order for this section to be applicable, there has to exist a real nexus between the
contract and the acts done in furtherance of the same or the acts which can be
referred to that contract unequivocally. Where there is no contract of transfer or
property in existence, the question of applicability of this section does not come
into play. To attract the provision of this section, the transferor must be the
owner, there should be an agreement to transfer by sale to the transferee for
consideration and the possession of the transferee should be in pursuance of that
agreement and the transferee must have done something more in furtherance of
the agreement and he should be ready and willing to perform his part of the
agreement from the date of the agreement.
APPLICATION TO MORTGAGES
This section is applicable where there exists a contract to transfer with
consideration any immovable property. Thus, the section not only extends to
sales but also to mortgages and exchanges. When all the essentials of this
section are satisfied the defendant is entitled to invoke the benefit of the section.
In the case of Habib v. Mahemud Mir, the appellant instituted a suit for
redemption of a mortgage executed on 14th December, 1927. By the mortgage-

22
 deed a house was conditionally sold to the respondent on condition that if the
consideration was repaid within six years, the property would be reconvened to
the vendor. After the expiry of six years on 16th December, 1933, the
respondent served a notice on appellant saying that, as the condition of
repurchase had been broken; he had become the full owner of the property. On
1st February, 1935, the respondent paid a further sum, in lieu whereof the
vendor relinquished all rights in the property in favour of the respondent, but the
document was not registered, although the respondent continued all along in
possession. It was held that by the document of 1st February, 1935, the
appellant must be deemed to have given up whatever rights he had, When he
unconditionally surrendered to the other party, all his outstanding rights in the
property, he could not thereafter be heard to say that he parted only with one
such right and not the other of which he was not then aware : and that, as all the
ingredients of this section were satisfied, the respondent mortgagee was entitled
to invoke the benefit of this section for resisting plaintiffs suit for redemption.
APPLICATION TO LEASE
If a suit is filed by a lesser, the applicant/defendant who evidently was in the
position of the land or property by virtue of their being a lease deed, even
though unregistered, and take the defence under section 53A of the Transfer of
Property Act to protect his possession. So far a tenant already in possession with
a covenant for renewal in his favour can resist his eviction by the landlord
without filing a suit for specific performance if he has validly exercised his
option and if the suit for specific performance of the agreement for renewal is
not barred by limitation on the date of landlord’s suit, on the equitable principle
of part performance recognised under the Transfer of Property Act.
In Lal Behari v. Kanakkanti, B executed a patta for 25 years in favour of K on a
monthly rental, The patta was not signed by K but K went into possession and
effected improvements in terms of the patta. B sued K for arrears of rent and
eviction before the expiry of the patta. It was held, that there was no implied
tenancy from month to month, but the doctrine of part-performance was
applicable, It was said, that from patta the terms necessary to constitute a
transfer can be ascertained with reasonable certainty, that the appellant in part-
performance of the contract has taken possession of the subject of the contract,
that is, the disputed premises, that he has been performing his part of the
contract, and that, on these premises, the transferor is debarred from enforcing
against K any right other than the right expressly provided by the terms of the

22
 contract; and that, as it is expressly provided that K shall remain in the premises
undisturbed by B, this section does come to the aid of K.
Under this section even an unregistered lease is admissible in order to defend
possession obtained in furtherance of the part performance of the lease
agreement. The Lessee cannot rely upon the lease agreement and its terms
which relates to 30 years lease period and thus cannot take advantage of this
section to protect his possession for 30 years.
WALSH vs. LONGSDALE and MADDISON vs. ALDERSON are two of the
major cases that have helped develop the doctrine of part performance in
England. In India, this doctrine has been enacted with a few modifications.

MADDISON vs. ALDERSON 1888

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 able to recover the said property.

WALSH vs. LONGSDALE 1882

Walsh took a cotton mill on lease for 7 years from Longsdale, the owner of the
mill. The agreement was prepared but not signed. In the meantime, rent arrears
started to accumulate as Walsh could not keep up with the quarterly payments
of rent. An advance of one year’s rent could be demanded by Longsdale as per
the contract. Lonsdale demanded the advance rent for one year and seized some
goods of Walsh when he defaulted. Walsh sued for damages.

22
 The House of Lords decided in favor of Lonsdale stating that by running the
mill, Walsh had admitted he was a lessee and evidence of his consent to the
unsigned lease deed.

The rule laid down in Walsh vs. Longsdale is not applicable in India – as it did
not constitute the doctrine of part performance.

Prior to the enactment of the Transfer of Property Act, 1882, the English law of
Part Performance was applied. Before Section 53A was inserted in the Transfer
of Property Act, 1882, there were different views upon such application. After
the Transfer of Property Act, 1882 came into force, some thought that Sections
54 and 59 which required registered documents were necessary for sale of
immovable property or regarding mortgage respectively. While others argued
that requiring strict compliance would be detrimental to the rights of the
impoverished masses of India who could be duped by scrupulous individuals
taking advantage of the law.

The Privy Council in MOHD MUSA vs. AGHOR KUMAR GANGULI AIR
1914 PC 27 (30) held that doctrine of part performance is applicable in India.
There were divergent views a few years later stating that doctrine can not be
used to override statutory provisions. Finally, in 1929, the Transfer of Property
Act was amended and the English law of part performance became a part of
Indian Laws though a little modified.

The Delhi High Court in a recent decision in Panchi Devi v. Omwati 11 july
2011 has discussed the broad principles of 'Part Performance' under S. 53 A of
the Transfer of Property Act. While discussing the law and authorities on the
subject, Justice V.K. Jain has held that an oral Agreement to Sell cannot be
enforced under S. 53 A of the Transfer of Property Act. The relevant text of the
judgment is reproduced hereunder;
As regards the oral Agreement to Sell, pleaded by the defendant, the law does
not protect the possession of a person who claims to have obtained it under an

22
 oral Agreement to Sell in his favour. Section 53A of Transfer of Property Act
reads as under: -
"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 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 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]." It would be seen that the possession of a person is protected under
Section 53A of the Act only if he claims it under a written contract to transfer
the property to him for consideration. Unless a written agreement is set up, the
provisions of Section 53A of the Act do not come into play and consequently,
the person claiming possession under the oral agreement is not entitled to
defend his possession.
8. In Nathulal v. Phool Chand 1970 2SCR 854, Supreme Court while
interpreting Section 53-A culled out the following conditions to be fulfilled for
making out the defence of part performance to an action in ejectment by the
owner, as under: -
(i) that the transferor has contracted 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;
(ii) 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 in possession in part performance of the contract;
(iii) that the transferee has done some act in furtherance of the contract; and

22
 (iv) that the transferee has performed or is willing to perform his part of the
contract.
In Sardar Govindrao Mahadik v. Devi Sahai 1982 2SCR 186, it was
reiterated that to qualify for the protection of the doctrine of part performance it
must be shown that there is an agreement to transfer of immovable property for
consideration and the contract is evidenced by a writing signed by the person
sought to be bound by it and from which the terms necessary to constitute the
transfer can be ascertained with reasonable certainty.

Supreme Court in Rambahu Namdeo Gajre v. Narayan Bapuji (2004) 8 SCC

614, held that the doctrine of part performance aims at protecting the possession
of such transferee provided certain conditions contemplated by Section 53-A are
fulfilled. These conditions are:
(i) there must be a contract for transfer for consideration of any immovable
property,
(ii) the contract must be in writing, signed by the transferor or someone on his
behalf,
(iii) the writing must be in such words from which the terms necessary to
construe the transfer may be ascertained,
(iv) the transferee must in part performance of the contract take possession of
the property, or of any part thereof,
(v) the transferee must have done some act in furtherance of the contract, and
(vi) the transferee must have performed or be willing to perform his part of the
contract.
Thus, if the plea taken by the plaintiff is accepted, the possession of the
defendant is unauthorized, her tenancy have been terminated. If the plea set up
by the defendant is accepted, her possession is still unauthorized since she is not
claiming a written agreement in her favour and the possession under an oral
agreement is not protected by Section 53A of the Act.

DIFFERENCE BETWEEN THE ENGLISH LAW AND THE RULE

CONTAINED IN SECTION 53A

22
 The important points of difference between the English equitable doctrine and
the rule contained in this section are:
1. The English doctrine applies even to oral contracts, but this section is
restricted to be applied only to contracts in: (a) writing, and (b) signed by the
transferor, or on his behalf from which the terms necessary to constitute the
transfer can be ascertained.

2. Under the English law: (a) both the transferor and the transferee can claim as
plaintiff that the contract be specifically performed, and (b) each can resist a suit
by the other claiming rights in violation of the contract; but, under this section,
the transferor or any person claiming under him, is debarred from enforcing
against the transferee and persons claiming under him, any right in respect of
the property of which the transferee has taken possession, other than a right
expressly provided by the terms of the contract, and the transferee cannot sue
for any declaration on the ground of part-performance.
3. Under the English law, part-performance of a contract gives rise only to an
equity and not to a legal right; but under this section, the part-performance gives
rise to a statutory right of defence; but this right is only one, which, but for the
lack of some formality, the party would have had under the written agreement.
The section gives the party relying upon it only such rights which for the lack of
some formality they would have had under the written agreement but it does not
give any right which the informal agreement would not give.

22
 CONCLUSION
The doctrine of part performance is an equitable doctrine designed to relieve the
rigor of the law and provide a remedy when a transfer or an agreement for
transfer falls short of the requirements laid down by the law. In England the
doctrine was developed by the Equity Courts. In a modified form it has been
recognized statutorily in India being embodied in Section 53A.
Section 53A of the Transfer of Property Act applies to a person who contracts to
transfer immovable property in writing. If the proposed transferee in agreement
has taken possession of the property or he continues in possession thereof being
already 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, the transferor shall be debarred from enforcing
any right in respect of the property.
Also, Section 53A does not confer any title or interest to the transferee in
respect of the property in his possession. Furthermore, it does not give to the
transferee any right of action. It provides merely a right of defence. This is the
essence of the principle incorporated in Section 53A of the Transfer of Property
Act.

22
 BIBLIOGRAPHY
1. http://economictimes.indiatimes.com/doctrine-of-part-
performance/articleshow/1353683.cms.
2. https://www.kaanoon.com/1302/doctrine-of-part-performance.
3. http://www.legalblog.in/2011/07/part-performance-under-transfer-
of.html.
4. https://taxguru.in/corporate-law/analysis-provisions-section-53a-transfer-
property-act-1882.html/.

22