DOCTRINE OF PART-PERFORMANCE

Doctrine of Part-Performance:

The doctrine of part-performance also known as 'equity of part-performance'

says that if a person has taken 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
the contract, then, he would not be rejected from the property on the ground that
the sale was unregistered and the legal title has not been transferred to him.

The doctrine of part-performance was firmly established in England in the case

of Maddison v. Alderson, in this case A induced a woman to serve him as a
house-keeper without wages for many years by a verbal promise to leave her in
his will a life estate in his land. A died without making any will. The woman
sought specific performance of the verbal contract but her action was dismissed
because her continuance in service did not refer directly to the contract as
alleged.

In this case Lord Selbourne observed: "In a suit founded on 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 of a kind which the statute cannot be thought to have had in
contemplation, would follow".

According to Section 53A,

1. Where any person contracts to transfer-

 for consideration
 any immovable property
 by writing signed by him or on his behalf

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  from which the terms necessary to constitute the transfer can be
ascertained with reasonable certainty

2. The transferee-

 Has, in part performance of the contract, taken possession of the property

or any part thereof, or
 Being already in possession, continues in possession in part performance
of the contract and has done some act in furtherance of the contract, and
 has performed or is willing to perform his part of the contract,

3. Then 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,

4. 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.

5. However, the section will not affect the rights of a transferee for
consideration who has no notice of the contract or of the part performance.

Essential Requirements of Section 53A:

Essential requirements of section 53A are as follows:

1. There must be a contract to transfer an immovable property for consideration.

2. The contract should be in writing and its terms can be ascertained with
reasonable certainty.

3. The transferee should have taken the possession of the property in part-
performance of the contract or if he is already in possession, should have

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continued in possession in part- performance of the contract, and should have
done something in furtherance of the contract.

4. The transferee should have performed or should be willing to perform, his

part of the contract.

5. The rights of any other subsequent transferee for consideration without notice
should not be affected.

Contract to Transfer an Immovable Property for Consideration:

The first requirement of this section is that there must be contract to transfer an
immovable property and the contract must be in writing. It must be signed by
person or his agent on his behalf whom it is sought to bind. The transferee under
oral agreement cannot take benefit of this section. However, all the terms of
previous Oral agreement reduced in writing can be used for the purpose of
section

53A.

Contract in Writing and Ascertainable with Reasonable

Certainty:

The second requirement is that the contract must be in writing and such that the
terms of the contract can be ascertained with reasonable certainty.

If the contract is such that its terms regarding transfer cannot be ascertained
with reasonable certainty, it cannot be enforced. It is not necessary that every
minute detail should emerge from the writing.

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Part-Performance of Contract by Transferee, Transfer of
Possession or Continuance:

The third requirement of this section is 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, he must have continued in possession. It is
necessary that the possession taken or continued must have been in pursuance of
contract.

If the transferee has not taken the possession of the property, this section will
not be applicable.

If the transferee has once taken possession but has subsequently lost it, this fact
will not deprive him of his right under section 53A.

Willingness of the Transferee to Perform or Performance of his

part:

No equities can arise in favour of a party who is not willing to perform his part
of the contract. 52 The principle of equity is that "he who seeks equity must do
equity". Therefore, the transferee who wants to take benefit of this section must
also do his part of the contract. He must be willing and ready to perform his part
under the contract. A purchaser, who has already taken possession of the
property, cannot protect his possession under this section if he is not willing to
pay the price of the property.

However, it is not necessary that the transferee must claim his willingness in
each and every case.

It is also necessary that the willingness to perform the part must be absolute and
unconditional. If the willingness is coupled with a condition, it cannot be termed
a willingness.

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Case Law

In the case of Mokim Mondal v. Ali Miah Pradhan, [18 DLR 386], it was held
that, under section 53A of the Transfer of Property Act a person in order to
entitle himself to the behalf of the doctrine of part performance must show inter
alia that the contract involved has been reduced to writing and signed by the
person making the contract or on his behalf from which the terms necessary to
constitute the transfer can be ascertained with reasonable certainty.

Exception to Section 53A:

The proviso to the section contains an exception in favor of transferee for

consideration who has no notice of the contract or part-performance thereof.

This means that the transferee for consideration having no notice of the contract
or its performance is not affected by this rule.

Any right which the transferee may have against the transferor under this
section would not be of any avail against a bonafide transferee for value having
no notice of the transaction.

Principles laid down in Section 53A (Basis of the doctrine):

Section 53A incorporates three principles of equity:

 He who seeks equity must do equity.

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

The leading case of Walsh x. Lonsdale, is an instance of the equitable rule that
what ought to be done as a consequence of a binding agreement is treated as
actually accomplished.

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Immovable Property under a Contract for Sale not to be
Transferred (Section 53B):

According to Section 53B,

 If there is a contract for sale (bainanama) of an immovable property, such

property cannot not be transferred except to the vendee so long as the
contract subsists unless the contract is lawfully rescinded.
 If such property transferred to any person other than the vendee during
subsisting of contract for sale such transfer shall be void.

Immoveable Property without Khatian not to be Sold (Section

53C):

According to Section 53C,

 If any person wants to sell his immovable property, he must have a latest
khatian (mutation khatian) in his own name (where he acquires such
property by sale or gift etc.). Without such mutation khatian in his own
name he cannot transfer such property. If he does so then the transfer
shall be void.
 The mutation khatian must be prepared under the State Acquisition and
Tenancy Act, 1950
 But if such person acquires immovable property by inheritance and there
is khatian in his predecessor's (father, mother etc.) name then no such
mutation khatian is necessary and he can sell such immovable property.

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Immoveable Property under Mortgage not to be Transferred
(Section 53D):

According to Section 53D,

 If any immovable property is under registered mortgage, the mortgagor

cannot re-mortgage or sell without the written consent of the mortgagee.
 If the mortgagor without the written permission of prior mortgagee re-
mortgages or sells to other person, then the transfer shall be void.

Essential Conditions of Section 53D:

For the applicability of section 53D following essential conditions must be

fulfilled

 There must be an immovable property.

 Such immovable property must be under a registered mortgage.
 There must not be a subsequent mortgage of sale of such immovable
property.
 In case of subsequent mortgage or sale prior written consent of the prior
mortgagee is essential.

Exception to Section 53D:

Section 53D shall not apply:

 If the mortgaged property is movable property.

 If the property (movable or immovable property) is under an unregistered
mortgage.
 If there is an oral consent of the mortgagee.

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Instrument of Transfer to be supported by Affidavit (Section
53E):

According to Section 53E, every instrument of sale, gift, mortgage and

declaration of heba of any immovable property shall be supported by an
affidavit by the executant affirming that he has lawful title to the property.

This means in case of transferring any immovable property by way of sale, gift,
mortgage and declaration of heba, the instrument must be supported by an
affidavit by the executant that he has lawful title to the property. This is a
mandatory provision.

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