AM V: DOCTRINE OF

PART PERFORMANCE (I)

BY
CHARVI KUMAR
SYMBIOSIS LAW SCHOOL, NOIDA
PART PERFORMANCE
UNDER ENGLISH
LAW
AN EQUITABLE RIGHT...

• "Equity looks on that as done which ought to have been done" /

"equity regards as done what should have been done"
• A result of the Statute of Frauds in England, which stated that no
action could be brought before a court involving a sale of land
unless the contract for the sale was in writing and signed by the
party.
• This was done to reduce chances of fake oral evidence but caused
hardship to people.
• A could orally sell land X to B and receive money for it. But A
could refuse to allow B to move in, or, if B had already moved in,
forcibly evict B, all on the basis that there had been no written
contract.
 STATUTE CANNOT BE ALLOWED TO BE MADE AN INSTRUMENT
OF FRAUD
• The above principle of equity helped formulate the doctrine of Part Performance in the UK.
• In the prior example, as long as B had performed or was willing to perform his part of the bargain, he would
be entitled to get possession of the land.
• If he already had possession, he could remain in possession if A attempted to evict him.
• Even if he did not already have possession, he could still use this principle to enforce his right to possession.

• Thus, this was a wide principle, acting as both a sword (tool of offence, from which a cause of action could
arise) and a shield (tool of defence, which would help safeguard the defendant's right in a suit against him).
• However, it remained a tool of discretion of the judge, just like most judgments involving specific
performance.
MADDISON V ALDERSON,
HL 1883
• A housekeeper had not been given any wages and
wished to leave the service of her employer.
• Employer asked her to stay, promising her a lifetime
interest in an estate so long as she worked for him
until his death.
• Upon this oral promise, she continued to work for
him for many years.
• Before his death, he wrote and signed a will, leaving
a life interest in the property to her.
 CONTD.

• However, the will was not attested, so she had to rely on the oral promise he made to her, declaring
it to be an oral contract, which was not actually enforceable thanks to the Statute of Frauds.
• Initially, the court ruled in favour of the dead man's heir, not the housekeeper.
• Said that there was no contract between the parties, as he had merely made a promise
• Upon appeal to the House of Lords, the doctrine of part performance was applied and Maddison got
her due.
• The Court said that there was indeed a contract, even if it was simply oral, and Maddison had fulfilled
her end by continuing to work for him instead of leaving, when he offered her the estate.
• By continuing to work for him, she provided consideration and turned his promise from a mere
promise into an agreement.
CONTD.

'….It is now finally settled that the true construction of the Statute of Frauds is not to
render the contracts within it void, still less illegal but is to render the kind of evidence
required indispensable when it is sought to enforce the contract...'
‘...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 statute) 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.
The matter has advanced beyond the stage of contract; and the equities which arise out of
the stage which it has reached cannot be administered unless the contract is regarded.’
 MOHOMED MUSA V ASHOK KUMAR
GANGULI, PC 1914

• Long term property dispute between a lady

(Khodajanessa) and her attempt to redeem from
mortgage a land that had been given to her as
dower by her husband from the three gentlemen to
whom the land had been mortgaged.
• At some point, they came to an oral compromise
(razinama), dividing the land between Khodajanessa
and the other three people, and the suit was
dropped
• Khodajanessa herself, when mortgaging her share of
the land a second time, detailed the razinama and
mortgaged only her specific share as per the
agreement.
CONTD.

• Her heirs later attempted to redeem the rest of the property from the other party.
• The Court held that, just because the agreement was not put in writing does not mean
that the agreement did not exist and was not acted upon.
• It also mentioned Maddison v Alderson and declared that the law of India was not
incompatible with the law of equity in the UK, especially since back then, when
the razinama had been executed, the TPA had not been enacted.
• This case, therefore, made part performance a part of Indian law.
• (However, some confusion remained and eventually, the legislature itself amended the law
of the land to introduce Section 53A.)
AM V STUDENT INVOLVEMENT PRACTICE

• Research the essential elements that must be met

in order to obtain relief under the doctrine of
Part Performance, per the English law of equity.

• See: Dr Ankur Srivastava, 'Lecture 29', available

at: lecture-29.pdf (ramauniversity.ac.in)(Also
included as reading material.)