MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

B.A.LL.B.(Hons.) Year-II, Semester-IV: Academic Year : 2020-2021

First Open Book Assessment, March-2021

Course Code and Name: 4.2 Property Law - I

Name of Student: Akanksha Bohra UID: UG19-08

Answer 1.
FACTS :
In January 2019 a sale deed was executed between Mr. Dheeraj and Mr. Suresh with
consideration of Rs.100000 out of which Rs.50,000 was paid and remaining to be paid in
October 2020. Due to non-payment of the remaining amount Mr. Suresh sold it to Mr.Israfil.
ISSUE :
Whether Mr. Suresh can be compelled to execute the sale deed on payment of remaining
Rs.50,000 by Mr. Dheeraj ?
ARGUMENT :
Mr. Suresh cannot be compelled to execute the sale deed on payment of remaining Rs.50,000
by Mr. Dheeraj.
REASONING :
Section 53A of The Transfer of Property Act, 1882 i.e. Equity of Part Performance.
Section 53A of the Transfer of Property Act deals with the immovable property defined under
Section 3 of The Transfer of Property Act, 1882, Section 2(3)(26) of the General Clauses
Act,1897 and Section 2(6) of the Registration Act, 1908. Section 53A of the said act protects
the prospective transferee’s by allowing them to retain the possession over the property,
against the right of the transferors, who after the execution of an incomplete instrument of
transfer, fail to complete it in the manner specified by law, without any fault on part of
transferees. This doctrine was propounded in the case of Maddison v. Alderson and by the
case of Mohd Musa v. Aghore Kumar Ganguli, the English principle was made applicable to
Indian cases.
ESSENTIALS FOR SECTION 53A ARE :
1. Contract for consideration.
2. A written contract.

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 3. Wordings of the contract must ascertain the terms of the transfer.
4. Transferee in performance of contract takes possession.
5. Transferee must have done some act in furtherance of contract.
6. Transferee must have performed or be willing to his part of the contract.
7. If the contract is executed after 24 September, 2001 – that must be registered.
8. the section will not affect the rights of a transferee for consideration who has no notice
of the contract or its part-performance.
In the given factual scenario Mr. Suresh cannot be compelled to execute the sale deed as the
essentials of Section 53A are not fulfilled by Mr. Dheeraj. Section 53A lays down the
condition that the transferee has either performed his part of contract or is willing to perform
the same. It forms an essential condition as it highlights the willingness of the person. In
Jacob Private Ltd v. Thomas Jacob, it was held by the Kerala High court that the willingness
to perform the part of contract must be absolute and unconditional. In Andhra Graphite P Ltd
v Jobbing Syndicate (Regd. Partnership), AIR 2011 (NOC) 245 (AP), the transferee neither
paid balance money, nor able to show readiness and willingness to pay claim of specific
performance not allowed. In the given facts, Mr. Dheeraj showed no such willingness on his
part with regard to the remaining payment of Rs.50,000 and thus failed to fulfil the essential
of readiness or willingness of transferee. After the amendment of 2001, the documents
containing contracts to transfer for consideration any immovable property for Section 53A of
the said act must be registered and if such document is not registered they shall have no effect
for the purpose of the said section. As the sale deed between Mr. Dheeraj and Mr. Suresh was
not registered as per the amendment, thus shall have no effect as of Section 53A. Lastly,
where the prior transferee has neither shown any willingness to perform the contract nor was
anxious to do so by taking possession, the subsequent transferee can have actually no notice
of prior transferee’s right of part performance. In such case the doctrine of part performance
will not come for protection. In the given case, Mr.Israfil was unaware about the prior
transaction with Mr. Dheeraj and thus by application of the above-mentioned rule, in practice
of good faith, equity and conscience the part performance doctrine will not be applied.

Answer 2
FACTS
Mr. Dhananjay sold a house to Mr.Sanjay for Rs.50000 in the year 2000. On the same day, a
separate unregistered instrument was also executed stating that if he wished to sell the house

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in future, he would sell back to him for the same price and only if he declines then to someone
else. After 15 years, he sold the house to Mr.Kinkar for Rs.1000000.
ISSUE
Whether the transfer of property by Mr.Sanjay to Mr.Kinkar is valid or not ?
REASONING
The transfer of property by Mr.Sanjay to Mr.Kinkar is not valid as per Section 10 of the
Transfer of the Property Act,1882 which covers conditions restraining alienation.
Section 10 of the said act states, “Where property is transferred subject to a condition or
limitation absolutely restraining the transferee or any person claiming under him from parting
with or disposing of his interest in the property, the condition or limitation is void..”. Section
10 deals only with absolute restraints imposed. However, in case where the restraint does not
take away the power of alienation absolutely but only restricts to some extent is known as a
partial restraint. Partial Restraint is valid and enforceable. A total restraint on right of
alienation is void but a partial restraint would be valid and binding. This rule is based on
sound public policy of free circulation.( K Muniswamy v K Venkataswamy, AIR 2001 Kant
246 : ILR 2000 Ker 3450 : (2000) 6 Kant LJ 487). Also, the section is not applicable in those
cases where a separate agreement is executed by the transferor in the personal capacity. This
section draws its authority only over conditions attached to sale deed.
In the case of Devi Dhayal v. Ghasita AIR 1929 All 667, the plaintiff sold his house to the
defendant and later through an unregistered agreement agreed that to sell the house back to
them for the same price when he wanted to transfer it and only if they decline to repurchase
he would sell it to other person. The defendant offered them to purchase it for a higher
amount to which they declined and asked to sell for the same amount. The court held that
there was a special contract between the parties which was binding on them and could be
enforced against the transferees and thus could not sell it to other persons unless they refuse to
take it. The court was of view that there was no absolute restraint on alienation as per the
special agreement and thus does not attract Section 10 of TPA.
In case of Jagar Nath v. Chedi Dhobi AIR 1973 All 307, the condition was that defendant and
his heirs might continue the possession of the house and whenever they desired to sell the
same, they would first offer the plaintiff or his heirs and on his refusal to purchase the same
they could sell it to any third person. However, the defendant did not abide by the condition
and sold it to Chedi Dhobi without offering the same to the plaintiff. The court ruled that the
provisions of Section 10 are not applicable to the given facts as the agreement was a special

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contract between the parties which was binding on them and enforceable. In the given factual
matrix, Mr.Sanjay did not abide by the conditions of the separate agreement executed between
him and Mr. Dhananjay. The provisions of Section 10 are not applicable as the separate
special contract is binding and enforceable. There was no imposition of absolute restraint in
the agreement as the condition did not completely prohibited from alienating the property.
Section 10 is operative only against absolute restraint and not partial restraint on alienation.
The condition of selling it back to Mr. Dhananjay and if he declines to a third party is not an
absolute restraint and only a partial restraint. Hence the provisions of Section 10 of the
Transfer of Property Act were not applicable. As the provisions were not applicable, Mr.
Sanjay was under an obligation to Mr.Dhananjay to which he did not abide and thus the
transfer to Mr.Kinkar is not valid. He has to ask Mr.Dhanajay prior, upon denial from him he
could sell to Mr.Kinkar.

Answer 5
FACTS
Mrs. Kamala had two daughters Sushma and Reshma who were married. She executed an
instrument making her the life interest and the daughters to be having absolute interest. In
2017, Mrs. Reshma died after which Mrs. Kamala executed a new instrument making Mrs.
Sushma the sole person having interest. In 2019, on death of Mrs. Kamala, Mrs. Sushma took
the possession of entire property. The husband and children of Mrs. Sushma challenged this in
the court.
ISSUE
Whether the representatives of Mrs. Reshma are entitled to the vested interest in the
property ?
ARGUMENTS
Section 19 of the Transfer of Property Act,1882 deals with concept of Vested Interest. It
reads as, “Where, on a transfer of property, an interest therein is created in favour of a person
without specifying the time when it is to take effect, or in terms specifying that it is to take
effect forthwith or on the happening of an event which must happen, such interest is vested,
unless a contrary intention appears from the terms of the transfer.” A vested interest is not
defeated by the death of the transferee before he obtains possession. Vested interest is an
immediate right to a property and when it is created the transfer of property is completed. The
enjoyment right may be a present or future one. An interest is vested in a person where the

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terms do not express the time when it is to take effect or where it is expressed that the interest
is created forthwith i.e. immediately or when the interest is created on operation of a specified
event. In case when a prior interest is created in the same property for some other person, it
means that there is only postponement of enjoyment and not the vesting of subsequent
interest. The interest vests a soon as the transfer is complete.
A vested interest is not defeated by the death of the transferee before obtaining possession.
The interest passes on to the heirs of the transferee. According to Section 6 of the Transfer
of Property Act,1882, whenever an interest is vested ,it becomes the property of the
transferee and it can be transferred even before he takes possession of it. It is completely
effective and valid. Also, there is a corresponding section i.e. Section 119 of the Indian
Succession Act, 1925 wherein if the transferee dies, his interest still vests in his legal
representatives irrespective of the fact that whether he has possession or not.
In case of Namburi Basava Subrahmanyam vs Alapati Hymavathi, 330 1996 SCALE (4)278,
Ch.Seshamma had two daughters Hymavathy and Vimalavathy. She bequeathed her property
to hem through a settlement deed. Vimalavathy died after which Seshamma revoked her deed
and executed a will giving the entire property to Hymavathy. After Seshamma died,
Hymavathy took over the entire property. The plaintiff was husband of Vimalavathy who
challenged this in the court. The court held that the first document that was executed was a
settlement deed which was valid and thus created vested interest in favour of both the
daughters. The second document being executed was will which is invalid in this case. Thus,
the interest once vested cannot be reverted or quashed or taken back by way of executing a
second document.
Thus, considering the given factual matrix, the earlier instrument created by Mrs. Kamala in
favour of her daughters was a valid one and the second document on the event of death of
Reshma is an invalid one in the eyes of law. According to Section 6 and Section 19, there lies
a vested interest in favour of Mrs. Reshma and his legal representatives are entitled to the
transfer of the property even if she is dead. Thus, by application of Section 6, 19 of the
Transfer of Property Act,1882 and Section 119 of the Indian Succession Act,1925 the
husband and children of Mrs. Reshma are entitled to title in the property concerned.