SCOPE OF SECTION – 53-A

The following postulates are sine qua non for basing a claim on Section 53 A of the Transfer
of Property Act:

 There must be a contract to transfer for consideration any immoveable property.

 The contract must be in writing, signed by the transferor, or by someone on his behalf.
 The writing must be in such words from which the terms necessary to construe the
transfer can be ascertained.
 The transferee must in part performance of the contract take possession of the
property, or of any part thereof.
 The transferee must have done some act in furtherance of the contract.
 The transferee must have performed or be willing to perform his part of the contract.1

So far as applicability of Section 53A is concerned, what is to be seen is that the Section
provides for a shield of protection to the proposed transferee to remain in possession against
the original owner who has agreed to sell to the transferee, if the proposed transferee satisfies
the other conditions of Section 53A. It doesn’t confer any title or interest to the transferee in
respect of the property in possession. Except the right to continue his possession, no other
title or interest is created is created in favor of the transferee.

LIMITATIONS OF SECTION – 53A - AVAILABLE ONLY AS A DEFENCE

The Privy Council in Probodh Kumar Das v. Dantmara Tea Co.2has held that the right
conferred by Section 53A is a right available to the defendant to protect his possession. The
Section is so framed so as to impose statutory bar on the transfer; it confers no active title to
the transferee. The above law laid down has been followed with approval by the Supreme
Court in the case of Technicians Studio Pvt. Ltd. v. Leela Ghosh.3

It has been held that Section 53A is only a partial importation in the statute law of India of
the English doctrine of part performance. Thus, a person who is lead into possession on the
strength of a void lease does not acquire any interest in the property but gets under Section
53A only a right to defend his possession. It can be used only as a defence.4 Following
1
Nathulal supra note 3; Shrimat Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi, AIR 2002 SC 960;
Rambhao Namdeo Gajre v. Narayan Bapuji Dhotra, (2004) 8 SCC 614; Ram Kumar Agarwal v. Thawar Das,
(1999) 7 SCC 303; Jacobs Private Limited v. Thomas Jacob, AIR 1995 Ker 249. See also Damodaran v.
Shekharan, AIR 1993 Ker 242, M. Mariappa v. A.K. Sathyanarayan Shetty, AIR 1984 Kant 58.
2
AIR 1940 PC 1.
3
AIR 1977 SC 324.
4
Ram Gopal Reddy v. Additional Custodian, Evacuee Property, AIR 1966 SC 1438.
Probodh Kumar, the Supreme Court again in Delhi Motor Company v. U.A.Basrurkar5 has
held that Section 53A is only available as defence to the lessee, and not as confirming a right
as the basis of which the lessee can claim rights against the lessor.

This Section does not confer title on the defendant in possession 6; and he cannot maintain a
suit on title.7 The Supreme Court has approved this principle. Thus, it can be concluded that
this section does not create a title in the defendant but merely acts as a bar to the plaintiff in
asserting his title. It is limited to the cases where the transferee has taken possession, and
against whom the transferor is debarred from enforcing any right, other than that mentioned
in the contract.

But the words of the Section do not warrant a conclusion that the plaintiff as such is
necessarily debarred from the benefit of this Section. 8 The true position as explained by
Justice Subba Rao, in a case decided by Andhra Pradesh High Court is:

“whether the transferee occupies the position of a plaintiff or a defendant, he can resist the
transferor’s claim against the property. Conversely, whether the transferor is the plaintiff or
the defendant, he cannot enforce his rights in respect of the property against the transferee.
The utility of the Section or the rights conferred there under should not be made to depend
upon the manoeuvring for positions in the court of law, otherwise a powerful transferor can
always defeat the statutory provisions of the Section by dispossessing the transferee by force
and compelling him to go to the court as plaintiff. Doubtless, the right conveyed under the
Section can be relied upon only as a shield and not as a sword but the protection is available
to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield.”9

Thus, the correct interpretation of this section is that this section gives to the transferee only
the right to defend his possession; this defence of possession may be in the form of plaintiff
or defendant.

WHEN IS DOCTRINE OF PART-PERFORMNACE NOT AVAILABLE

This doctrine was not available against other co-owners, i.e., the two brothers who were not
the signatories to the agreement or the consenting party or the recitals show that the

5
AIR 1968 SC 794.
6
Kuchwar Lime Stone Co. v. Secretary of State, AIR 1936 Pat 372.
7
S.N.Banerjee v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128.
8
Radhanath Swain v. Madhusudan, AIR 1956 Ori 58.
9
Achayya v. Venkata Subba Rao, AIR 1957 AP 854
agreement was entered into with the consent of the adult members; therefore, the protection
of doctrine of part performance was not available to defendant no.3 against the plaintiffs.

Therefore, even if the agreement was valid to the extent of the share of the widow, as held by
the lower appellate Court, the remedy for the appellant was to institute a suit for decree for
specific performance to the extent of the share of the widow and also a suit for partition as it
was a Hindu undivided family property.

CONCLUSION

The statute of frauds prevents courts from enforcing an oral contract to convey an interest in
real property. Without written evidence, a contract does not satisfy the formal requirements
set by legislatures under their statutes of frauds. However, despite this clear legislative
mandate, courts have regularly recognized exceptions based on acts taken by one or both of
the parties in performing under the otherwise unenforceable contract. Considerations of
fairness lead courts to apply an equitable exception to the usual legal result mandated by the
statute of frauds. This is the equitable doctrine of ''part performance,'' under which a court,
through its equity powers, may provide equitable remedies to a party, including specific
performance of an oral contract. If properly established, the doctrine of part performance
allows a court to recognize and enforce an oral contract despite its legal deficiencies. Some
Indian decisions betray a misconception of the limited scope of the section.

In this regard, the Supreme Court has laid to rest all doubts, and held that the benefit of s 53A
cannot be taken aid of by the transferee-plaintiff to establish his right as owner of the
property.10 It has further been held that s 53A can be used as a shield, but not as an
independent claim either as plaintiff, or as a defendant. It is a 'weapon of defence and not
attack'.

A Full Bench of Bombay High Court has held that when it is said that proposed transferee-in-
possession can use s 53A as a shield, but not as a sword, it means that he can use s 53A either
as a plaintiff or as a defendant to protect his possession, but he cannot use s 53A either for
getting title or for getting possession if he is not actually in possession. In other words, when

10
. Gopal Prasad v Additional Custodian Evacuee Property, Hyderabad AIR 1961 SC 143
the transferee-in-possession comes to the court as a plaintiff seeking a decree of perpetual
injunction against the transferor, he is using s 53A as a shield to protect his possession.

According to the Allahabad High Court, u/s 53A applies to the transferee, even if he is a
plaintiff. Further, it applies not only where the transferee is physically in possession on the
date of suit, but also where he has been illegally dispossessed by some person claiming under
the transferor.