ARMY INSTITUTE OF LAW, MOHALI

TRANSFER OF PROPERTY: DOCTRINE OF PART PERFORMANCE

IN PARTIAL FULFILMENT OF B.A.L.L.B. 5 YEAR DEGREE

SUBMITTED BY: SUBMITTED TO:

ANIMESH P. GUPTA DR. BHUPINDER KAUR
ROLL NO.: 1710 ASST. PROF. OF LAW
 ACKNOWLEDGEMENT

This project consumed a huge amount of work, research and dedication. I would like to
express my deepest appreciation to all those who provided me with the possibility to complete
this project work. Sincere gratitude to our Professor, Dr. Bhupinder Kaur whose superior
knowledge and contribution in stimulating suggestions helped me to coordinate my full effort
in achieving the project.

ANIMESH P. GUPTA
Roll No. – 1710
 INTRODUCTION
Transfer of Property Act, 1882 (TPA) was a major step towards regulating the transfer of
immovable properties in India. The process of codification of contracts, sales and transfers by act
of parties in India was initiated with the adoption of the Indian Contracts Act, 1872. This
however was an incomplete Code of Contracts since while contracts to transfer the rights in a
property could be made, they could not be enforced till the transfer of the property is complete.
The incomplete code on transfers was apparent since the transfer of property could occur by
inheritance or through the operation of law but, not through the act of two living parties. The
Courts and Privy Council were forced to apply principles of Equity, Justice and Good
Conscience to determine the disputes pertaining to the transfer of property. This posed a major
problem since the application of English Equity Principles was not uniform and not appropriate
in many cases.
This problem was recognized by the First Law Commission and the Transfer of Property Act,
1882 was passed and enforced on 01 July 1882. The Act recognized and codified the transfers by
act of parties and managed to complete the Code of Contracts.1
The application of equity however, continued even after the passage of TPA due to an omission
in the codification of a provision governing the equity of part-performance. The English Law
Principle was developed by the Chancery Courts of England during the late 17 th and 18th century.
Lord Selbourne elucidated the principle in his decree in Maddison v. Alderson2, a leading case
on the application of the doctrine. He 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 (within the meaning of the act) upon the contract itself. If such equities were
excluded, injustice of a kind which the statute cannot be thought to have had in contemplation,
would follow.”3
The Doctrine of Part Performance was formally incorporated in TPA by the Amending Act of
1929 by inclusion of Section 53A.

1
Dr. RK Sinha, The Transfer of Property Act, Central Law Agency (19th Ed.)
2
(1883) 8 A.C. 467.
3
Dr. RK Sinha, The Transfer of Property Act, Central Law Agency (19th Ed.), Pg. 218-219.
 ENGLISH LAW AND INDIAN LAW POSITION
The English Law of Part Performance states that:
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
4) It creates a title in the transferee.

The Indian Law of Part Performance takes the following position:

1) Section 53A deals with the Doctrine and state that the contract must 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
4) It does not create a title in the transferee.
After 2001 amendment to Section 53A, the application of the section has seen dilution – it no
longer serves as a ‘substitute’ for registration. It should still hold good for defects other than
registration. But, registration of sale of immovable property is compulsory and Section 53A has
been amended to incorporate the same.4

There are certain differences between the English and Indian application of the 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.

4
https://kanwarn.wordpress.com/2011/02/24/transfer-of-property-act-1882-part-performance/
 DOCTRINE OF PART PERFORMANCE UNDER SECTION 53A

Section 53A says that if a person enters into a contract 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.
Illustration: A contracts with B to sell his plot for X amount of money. A accepts the advance
from B towards the sale of the plot and hands over the possession of the said plot to B. After
some time, B is ready to pay the remaining sale amount but A refuses to accept the same. Further
A asks B to hand over the plot back to him.
Here B is ready to perform his part of the contract, but A is not. In such a case, B can bring a
case requiring specific performance from A. It does not matter that the sale was not registered.
Part Performance as per the provision –
“Where any person contracts to transfer for consideration any immoveable
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.
The proviso is an exception of sorts stating that the interests and rights of a
subsequent transferee for consideration will be protected as long as he had no
 notice of the contract leading to the part performance due or the part
performance thereof.”
In India, the doctrine is used only as a shield and not to enforce rights as laid down by the
Supreme Court in Delhi Motors Case5. But it must be noted that the aggrieved party can either be
the plaintiff or the defendant in a suit as the case maybe.
Essentials of the Doctrine of Part Performance laid down under Section 53A of TPA are:
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
f) The transferee should have performed his part of the deal or be willing to perform it.

5
Delhi Motors Company and Ors. v. U.A. Basrurkar and Ors., 1968 SCR (2) 720.
 LANDMARK JUDGEMENTS DEALING WITH DOCTRINE OF PART
PERFORMANCE
ENGLISH LAW:

1. MADDISON vs. ALDERSON6

Facts:
B was A’s servant. A had promised B a certain property as life estate, meaning B could enjoy
the property during his lifetime. 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.
Held:
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.

2. WALSH vs. LONGSDALE7

Facts:
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.
Held:
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.

6
(1883) 8 App Cas 647
7
1882 21 ChD 9
INDIAN LAW:
1. Srimant Shamrao Suryavanshi and Anr. V. Prahlad Bhairoba Suryavanshi8
Facts:
In the present case, the respondents executed an agreement of sale of an agricultural
land in favour of the appellant. The appellants in pursuance of the agreement got the
possession of the property. After the execution of the agreement, the appellant came to
know that the respondent is negotiating for sale with another respondent for which the
appellant filed a suit. The appellant filed for injunction and an injunction order was
passed in favour of the appellant, yet the respondent sold the land through a registered
sale deed. The transferee did not bring any suit within the limitation period for specific
relief.
Held:
Even if the limitation period was over, a person can obtain possession of property in
part performance of a contract to sale; the transferee can defend his possession in case
filed by the transferor. 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. 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.
In this case, 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, either in
taken possession or in continued possession of the property.
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.
The court in this case has rightly applied the doctrine. Here the appellant was able to
prove the willingness to perform his part of the contract which is an important essential.
Since, along with this requirement all other requirements were also proved. Hence, it
was the right of the appellant to have the defense of the doctrine which the court
provided.

8
(2002) 3 SCC 676
 2. Serandaya Pillai v. Sankaralingam Pillai9
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, in
consideration of the said contract so made for transfer of property, shall marry the
second defendant. The said contract was made orally. 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.
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.
Held:
It was said in the judgment that as per the section, gift, along with sale, lease, mortgage
and exchange require a written contract to take place and that the contract should be for
a consideration. Clearly, there involves a consideration to be given for the property in a
contract to sale, lease, mortgage, exchange and a gift.
The present act makes writing of the contract necessary for the property of value of Rs.
100 or more as per Section 54 of the Act for the purpose of sale, in case of simple and
other mortgages, a sum of Rs. 100 or above is required to be deposited as per Section
59, in case of lease extending one year as per Section 107 of the Act, exchanges under
Section 118 and under Section 123 of the Act in case of gifts.
In the present case, the promise to marriage was a consideration for the transfer of
property which was taken as a consideration but since, there only took place an oral
transaction between the parties and not the contract in writing, thus, it falls within the
ambit of Section 9 of the Act. Thus, it is neither a sale nor a mortgage, lease, exchange
or a gift. Hence, the present case could not be said to fall within the ambit of Section
53A of the Act.

3. Govindrao Mahadik v. Devi Sahai10

9
(1959) 2 Mad LJ 502 (506)
10
AIR 1982 SC 989
Facts:
The original Plaintiff 1, Sardar Govindrao Mahadik (Mortgagor), mortgaged a property
to sole defendant Devi Sahai (Mortgagee) at some rate of interest annually. The
mortgage was a mortgage with possession. The mortgagor on Oct. 5, 1945 served a
notice to the defendant to show the full accounts of the mortgage, of which the
mortgagee failed to provide. Subsequently, 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. On the other hand, the mortgagor sold the property to the Plaintiff
2, Gyarsilal (Subsequent purchaser) via a registered sale deed. Thereafter, 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.
Held:
The Court held that the mortgagee was not entitled to the benefit under Section 53A and
that he could not possess that 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, the mortgagee was already in possession of the
property, the mere possession of the property would render any result to the transferee.
He needed to prove something independent of the mere possession of the property and
an act done in furtherance of the contract, as the court shall not take any the mere act of
continuing in possession of the property as evidence enough to provide the defense to
the transferee. The mortgagee could not prove that he did any act in furtherance of the
contract, thus he was held not entitled to possession over the property.
In this case, the judgment set a good precedent over when the transferee can avail the
right over the property. 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.
The mere possession of the property is enough and a strong evidence 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. Thus, an independent act than a
mere possession of property was required to prove in such case. In the present case, the
mortgagee failed to do so and thus the decision of the court to not to provide him with
the defense under Section 53A of the Act was justified.
 4. S. Parvarthamma v. A. Srinivasan11
Facts:
The appellant in this case was the rent holder of the property and thereafter he entered
into an agreement with the landlord for the purchase of the property, thereby becoming
a prospective buyer of the property. Since, he was already living in that property or was
in the possession of that property, the landlord-tenancy relationship superseded to the
prospective buyer-seller relationship where the appellant became the buyer in
possession of that property. But the disputed fact remained of the agreement to sell
made between the original landlord and the tenant. The original landlord in 1983 sold
the land to the respondent via a registered sale deed and transferred their right, title and
interest in the property to the respondent including the suit premises. Thus, in this case,
the respondent here became the subsequent transferee and as per the law under Section
53A of the Act, 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. Thus,
the respondent being the subsequent transferee has the right to protect his property
rights under the section.
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 and got eviction by the Rent Controller and the judgment was upheld
by the High Court.
Held:
The court in this case dismissed the petition on the following grounds:
1. When the appellant filed a suit for injunction, the suit was dismissed in its entirety.
Along with the suit for injunction dismissed but also the alternative suit filed for
specific performance and monetary relief was also dismissed.
2. Secondly, he could not prove that he was in possession of the property in part
performance of the contract. When a person who is already in possession of the
property enters into a contract to purchase the property, 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

11
(2003) 4 SCC 705
 consistent with the contract alleged.
3. Thirdly, with his suit for specific relief getting dismissed, it could not be said that the
he performed or was willing to perform his part of the contract. 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. Also, the appellant did not pursue the matter further.
4. Fourthly, the respondent who became the subsequent transferee had no notice of
contract of part performance. As stated in Section 53 of the Act, the rights of the
transferee are to be protected and taken care of. 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. In this case, the transferee was a bona fide purchaser and had no notice of
the contract to sale of the property.

Thus, the High Court upheld the decision of the Rent Controller and said that the
appellant had no right over the property. The case was held liable to be dismissed and
was dismissed by the High Court.
As per the law, nothing in the Section 53A of the Act shall affect the rights of the
transferee, and here the Defendant 2 was the subsequent transferee. Hence his rights
should be safeguarded. 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.

Since, both the above requirements were met, the Court thus was right in saying that the
appellant had no right over the property and safeguarded the rights of the subsequent
transferee.12

12
https://www.lawctopus.com/academike/doctrine-of-part-performance/#_edn17
 CONCLUDING REMARKS
It is safe to conclude that, 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.