GAUTAM BUDDHA UNIVERSITY

Greater Noida, U.P., India

School of Law, Justice & Governance

Programme Name: B.A. LL.B. Year: IV Semester: VII
Course Name: Property Law Course Code: LB401
Batch: 2018-23

Assignment work
Title: Doctrine of Part-performance

Submitted by:
Archana Yadav
18/ILB/055
Section: ‘B’

Submitted to:
Mr. Gaurav Yadav
Faculty, Property Law

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 Acknowledgement
Presentation, inspiration and motivation have always played a key role in the success of any
venture.

I would like to express my gratitude to Mr. Gaurav Yadav, Faculty of Law, School of Law,
Justice & Governance, Gautam Buddha University whose valuable guidance and kind
supervision throughout the project work shaped the present work as its show.

I am immensely obliged to my friends for their elevating inspiration, encouraging guidance

and kind supervision in completing my project.

Archana Yadav

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 Table of Contents
1. Introduction………………………………………………………………………………04
2. Section 53A Definition…………………………………………………………………...05
3. Basic principle of the Doctrine…………………………………………………………...05
4. Purpose of Section 53A………………………………………………………….……….05
5. Essential ingredients (Case Laws Included)……………………………………………...06
6. Tenant in possession, change in relationship…………………………………………….07
7. Exception…………………………………………………………………………………07
8. Conclusion………………………………………………………………………………..08
9. Bibliography……………………………………………………………………………...09

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Introduction
The Part Performance Doctrine, which is founded on the idea of equity, was developed in
England and was introduced to the Transfer of Property Act, 1882 by the Amendment Act of
1929. In contract law (for example, a sale agreement), no rights are transferred to another
party until the transaction is completed. However, if an individual performs his part or
performs any act in support of an agreement after entering into it, he is eligible for
reimbursement or performance if the other party delays.

According to Section 53A of the Transfer of Property Act of 1882, "if an individual settles on
concurrence with another and lets the other individual do some act for the furtherance of the
agreement; such an individual makes equity himself that cannot be opposed on the minor
grounds of lack of formality in the proof or agreement of such an exchange.

Definition according to Section 53A:

(1) Where any person contracts to transfer -

(a) For consideration,
(b) Any immovable property,
(c) By writing signed by him or on his behalf,
(d) From which the terms necessary to constitute the transfer can be ascertained with
reasonable certainly,
(2) The transferee –
(a) Has in part performance of the contract, taken possession of the property (or any part
thereof). Or
(b) Being in already possession, continues in possession in part performance of the
contract, and
(c) Has performed or is willing to perform his part of the contract
(3) Then, notwithstanding that- where there is an instrument of transfer, that has not been
completed in the manner prescribed therefor by the law for the time being in force,
(4) The transferer (or any person claiming under him) any right in respect of the property of
which the transferee has taken possession, other than a right expressly provided by the
terms of the contract.

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

Doctrine of Part-Performance:
The doctrine of Part performance also known as “equity of part-performance” says that if a
party has taken possession under a contract or has already been in possession and is willing to
perform his or her portion of the contract or has performed some act in furtherance of the
contract, the other party cannot remove him or her from possession of the property.

Section 53A of TPA, 1882 operates as a bar or estoppel to the plaintiff claiming his title and
gives the defendant a right to protect his/her possession.

Basic principle of Doctrine of Part Performance:

The doctrine of part performance is based on ideas of equality, justice, and morality. It is
based on the equitable maxim, “Equity looks on that as done which ought to be done.” When
a party to a contract willingly performs his or her part of the contract in the expectation that
the other party will do the same, and the other party refuses to perform his or her part, the
doctrine of part performance kicks in, protecting the performing party's interests and
safeguarding his or her possession obtained in the course of the contract.

There is another equitable maxim which is relatable to this doctrine, namely ubi jus ibi
remedium that means ‘where there is a right, there is a remedy’. A right without a remedy has
no meaning. It would be prone to grave injustice.

Purpose of Section 53A

Section 53A was enacted in 1929 with the goal of preventing fraud and injustice. The
concepts of equity, justice, and good conscience underpin the doctrine of part performance. It
would be injustice if the party who has executed his or her side of the contract in the
expectation that the other party will perform his or hers as well. TPA, 1882, Section 53A, is a
defence measure. If all of the conditions of section 53A are met, a defendant who has been

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ejected from an immovable property can utilise it as a defence to safeguard his legitimate
possession. As a result, the principal objective of section 53A is to protect the defendant.

Essential Ingredients of Section 53A, TPA, 1882:

The components of Section 53-A have been highlighted by the Bombay High Court in
Kamalabai Laxman Pathak v. Onkar Parsharam Patil1.

1. Contract for Transfer of Immovable Property: The first prerequisite for

applying this section is that there must be a contract, and the contract must be for the
transfer of immovable property for a fair price.
a) Written contract: The contract must be written. If the transfer contract is oral,
Section 53 –A does not apply. The advantage of section 53-A is not applicable to a
person who is in possession of property based on an oral agreement of sale, according
to V.R. Sudhakara Rao v. T.V. Kameswari2. It's not enough to just write. In addition,
the contract must be properly completed. That is to say, the transferor or someone
acting on his behalf should sign it.
b) Valid Contract: It's worth noting that Section 53-A only applies if the transfer
contract is complete and correct. It must be a legally binding contract under the Indian
Contract Act of 1872.
c) Transfer of immovable property: This clause solely applies to the transfer of
immovable property. Even if supported by consideration, it does not applicable to a
contract for the transfer of moveable property. In the case of possession of movables,
the Part Performance defence is not available (Hameed v. Jayabharat Credit &
Investment Co. Ltd and Ors.3)

2. Transfer for consideration: The written contract must be for the consideration of
the transfer of an immovable property. The written contract under which the property was
possessed must expressly state that the property was transferred. This section cannot be
applied if the document is vague or confusing. The terms of a written contract must be

1
AIR 1995 Bom 113
2
(2007) 6 SCC 650
3
AIR 1986 Ker 206

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 ascertainable with reasonable certainty, which is one of the requirements of section 53-A.
(Hamida v. Humer and Ors.4]).

3. Possession in furtherance of Contract: The Transferee has taken or continues

possession in part performance of the contract or has done some act in furtherance of the
contract (A.M.A Sultan (deceased by LRs) and Ors. v. Seydu Zohra Beevi5).

4. Some Act in furtherance of the contract: Taking possession is not only the
method of part performance of contract. If the transferee is already in possession of the
property then, after the contract of transfer, he has to do some further act in part
performance of the contract (Nathulal v. Phoolchand6).

5. Transferee is willing to perform his part of contract: Section 53-A is based

on the principle of Equity. Equity says that one who seeks equity must do equity.
Therefore, where a person claims protection of his possession over a land under section
53-A, his own conduct must be equitable and just. It is an essential condition for the
applicability of this section that the transferee must be willing to perform his part of
contract. (Sardar Govindrao Mahadik and Anr. vs. Devi Sahai and Ors Govind7)

Tenant in possession, Change in relationship:

A tenant has no right to seek protection of his possession by virtue of section 53A, when the
jursl relationship is that of landlord and tenant. The rent act would prevail and the landlord
could seek eviction in terms of the provisions of the applicable rent legislation.

However, Section 53A enables a tenant that becomes purchaser by virtue of the agreement to
defend his possession.

Exception:

4
AIR 1992 All. 346
5
AIR 1990 Ker. 186
6
AIR 1970 SC 546
7
AIR 1982 SC 989

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

Conclusion:
As a result, the idea of part performance is a just doctrine. It was included to prevent fraud
from taking advantage of the document's non-registration. It is founded on the principle that
equity looks at intent rather than form.

Bibliography
1. Textbook on The Transfer of Property Act Sixth Edition (2019) by Dr. Avtar Singh
and Prof (Dr) Harpreet Kuar.
2. Textbook on Property Law 2nd edition (2011) by Dr. Poonam Pradhan Saxena.
3. Class Notes by Mr. Gaurav Yadav, Faculty, Property Law, School of Law, Justice &
Governance, Gautam Buddha University.
4. https://www.youtube.com/watch?v=T1jySz2-g8Q
5. https://blog.ipleaders.in/doctrine-of-part-performance/
6. https://nitimanthan.in/blog-posts/blog-niti-manthan/2020/07/28/doctrine-part-
performance-under-transfer-property-act-1882/
7. https://lawlegum.com/doctrine-of-part-performance-section-53a-tpa/#:~:text=The
%20doctrine%20of%20part%20performance%20has%20its%20root,53A%20of
%20TPA%2C%201882%20is%20a%20defensive%20provision.