Part Performance of Contract

Adithya K. Ayyar
A032134719013
B. A. LL. B. (General)
Semester 8
Section A

The doctrine of part performance is grounded on the idea that when two people enter into an
agreement in which one side allows the other to act in headway of the agreement, that person
establishes equity and cannot latterly object of the agreement’s performance because the
lawfulness weren't completed. As a result, this doctrine aims to cover a transferee in cases
where the transferor may be acting dishonestly by refusing to fulfil the contract.

Suppose the transferor and the transferee enter into a land transfer contract and the transferee
is given guardianship of the land according to the contract’s conditions. The transferor may
still refuse to confirm the first sakes agreement, entering into a contract with a third party in
response to a lesser offer, and also ejecting the first transferee from the estate. The conception
of part performance recognizes the possibility of similar events and strives to cover transferees.

While the conception of part performance has its origins in English Law, it was given legal
recognition in India in 1929 when Section 53A of the Transfer of Property Act, 1882 was
added. This section provides a benefit to a person who has a previous agreement in his favour
as well as possession of the land specified in the agreement.

The provision prohibits the original proprietor or anybody claiming title under him from
asserting any right of title or interest in the land indicated in the agreement. As a result, if his
possession is hovered, the person claiming the benefit of the clause can only bring an
instruction suit. He can also bring a proper complainant if he demonstrates and confirms the
section’s conditions as well as enrolment.

INGREDIENTS FOR THE APPLICATION OF THE DOCTRINE OF PART

PERFORMANCE-
1. Contract to transfer an immovable property for consideration-
The primary criterion of this section is that a contract must be written in order to transfer
immovable property. It must be inked by the person to whom it's intended to bind, or
by his agent on his behalf. This clause doesn't apply to the transferee under an oral
agreement. still, any conditions of a former oral agreement converted to jotting can be
used. The section provides protection only in circumstances when the property is
transferred under a contract. The section won't apply in case of partition of property.
The doctrine won't apply if the transfer is made without consideration. Only transfers
of immovable property are covered by this provision.

2. Contract in Writing-
The alternate criterion is that the contract must be in jotting and that the contract must
be in jotting and that the contract’s terms can be determined with reasonable certainty.
The contract must also be inked by or behalf of the individual requesting to reclaim
possession. The contract must be inked by the transferee himself or by someone who
has been officially authorised to subscribe on his behalf. It isn’t needed for every last
detail to be revealed in jotting. Indeed if it isn't registered or attested, an untreated deed
of transfer is considered a contract in jotting, but it must be inked by the transferor or
his agent. unrecorded documents affecting the real property that's needed to be
registered under the TPA may be used as substantiation of a contract in a suit for
specific performance, as substantiation of part- performance of a contract for the
purposes of Section 53A, or as substantiation of any collateral sale not needed by a
registered instrument.

3. Transfer of Possession-
The transferee either took possession of the property after the contract was inked as of
he was formerly in possession, he must have continued to do so. Possession must have
been taken or continued in agreement with the terms of the contract. This clause won't
apply of the transferee has not yet taken control of the property. The fact that the
transferee firstly had possession but subsequently lost it doesn't deprive him of his
annuity under Section 53A.

4. Willingness of Transferee
 The transferee must be willing and suitable to fulfil his contractual scores. Protection
under Section 53A is a separate right, and a person performing a part of an agreement
is only entitled to it if it can be demonstrated that he was always ready and set to carry
out his share of the agreement. Absolute and unconditional readiness and amenability
are needed. The benefit of the clause cannot be granted to a person who refuses to fulfil
his contractual scores.

WHAT IS 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 has done some act in furtherance 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 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 its part-performance

Section 53A creates benefits in favour of a person who has a previous agreement in his favour
along with the possession of land mentioned in the agreement. The section creates a bar against
the original proprietor or any person claiming title under him, for claiming any right of title or
interest qua land mentioned in the agreement. Thus, if his possession is hovered, it's only the
instruction suit that can be filed by the person claiming the benefit of the section.

His remedy isn't limited to taking defence in case a suit is filed against him. He can be a proper
complainant also if he shows and proves the conditions of the section along with enrolment.
The protection handed by the section deals with the mixed questions of data as well as law.

EXCEPTION-

The contingency to the section contains an exception in favour of a transferee for consideration
who has no notice of the contract or of part- performance thereof. This means that the transferee
for consideration having no notice of the contract, or its performance isn't affected by this rule.
Any right which the transferee may have against the transferor under this section would not be
of any mileage against a bona fide transferee for value having no notice of the sale.

The contingency to the section saves the right of a transferee for consideration, i.e., any rights
which the transferee under the unrecorded document may have on the strength of the part-
performance of the contract against the transferor would not be of any mileage against a bona
fide transferee for value having no notice of the former sale. The burden of proving that the
posterior transferee had notice falsehoods on the person claiming the benefit of part-
performance.

The Supreme Court has held that the right under section 53A isn't defeated by the fact that the
suit to seek specific performance of the agreement of trade has come time- barred, or that the
plea of accession of title by adverse possession has been negatived which rendered the
possession to be illegal.
CONCLUSION-
This Doctrine is pivotal in securing the transferee’s interests. When any type of transfer deed
is created, it's apparent that the transferee is responsible for paying the payment in exchange
for the property. Still, the transferee’s possession should be defended, which is where this
doctrine comes into play. Only written and valid contracts are covered by the Part Performance
Doctrine. It doesn't apply to invalid or oral agreements. The transferor must subscribe the
contract and it must be in jotting.

The transferee has taken power of the property as part of a contract, and he or she must be
ready and willing to fulfil his or her half of the bargain. This part applies not only to deals
contracts, but also to all other types of transfer for consideration contracts. numerous times,
there's just a collective agreement or a contract inked on a piece of paper or by any other
informal means, and in headway of that, the buyer does commodity so that the transferor
cannot worm or ask for eviction at a after stage. similar protection, or defence, must be
available to the transferee.