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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

ANALYSIS OF THE DOCTRINE OF PART PERFORMANCE

Abhineet Upadhyay, Harsh Raj Singh & Parnika Rajesh, Christ (Deemed to be
University), Delhi NCR

ABSTRACT

Section 53A of Transfer of Property Act 1882 talks about the Doctrine
of Part Performance which was inserted by Section 16 of the
Amendment Act 20 of 2019 which runs as: "Where any person
contracts to transfer for consideration any immoveable property
by writing signed by him or on his behalf from which the
terms necessary to constitute the transfer can be ascertained
with reasonable certainty, and the transferee has. in part
performance of the contract, taken possession of the property
or any part thereof, or the transferee, being already in
possession, continues in possession in part performance of the
contract and has done some act in furtherance of the
contract, and the transferee has performed or is willing to
perform his part of the contract, then, notwithstanding that
or, where there is an instrument of transfer, that the transfer
has not been completed in the manner prescribed therefor by
the law for the time being in force, 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: Provided that nothing
in this section shall affect the rights of a transferee for
consideration who has no notice of the contract or of the
part performance thereof.]" The law imposes certain formalities for
the validity of the certain contract which requires registration for the
transfer of immovable property if the value is above rupees hundred.
Section 53A of the TP Act is an exception to the general rule that
every property which is to be transferred is to be registered if required
by law. According to this doctrine, where a person has taken possession
of an immovable property on the basis of a contract of sale and he
had either performed or is willing to perform his part of the contract,
then he would not be rejected from the property on the ground that

1 Section 53A Transfer of Property Act, 1882

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

the sale was unregistered and the legal title has not been transferred
to him.

Keywords: Part Performance; Transfer; Possession; Immovable Property,

Unregistered

OBJECTIVE OF THE PAPER

The goal of the study is to determine the scope and extent of "any right" debarred by
the transferor in respect of the "property", as well as what types of property can be
covered under this clause and what "is taken or continued in possession" of the property
means.

HYPOTHESIS

The clause gives the transferee a statutory right to challenge the transferor's right to
defend his ownership of the property, whether taken possession or continued possession,
the scope of which is examined in this project.

SCOPE

As only written and valid contracts are covered by the Part Performance Doctrine so,
it does not apply to invalid or oral agreements. The transferor must sign the contract
and it must be in writing. The transferee has taken ownership of the property as part
of a contract, and he must be ready and willing to keep his end of the bargain. This
part applies not only to the sales contract but also to all other types of transfer for
consideration contracts. The philosophy is designed to be employed as a shield, not a
sword.

INTRODUCTION

Doctrine of Part Performance is an equitable doctrine which is incorporated to prevent

deceitful transferor from taking advantage of transferees who have fulfilled their
obligations under the contract. The doctrine is based on the maxim 'Equity looks on
that as done which ought to have been done' which means equity treats the subject-
matter of a contract as to its effects in the same manner as if the act contemplated in
the contract had been fully executed, from the moment the agreement has been made,
though all the legal formalities of contract have not been yet completed.

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

Under English law, the equity of part-performance was developed by the Chancery
Courts against the strict provisions of the Statute of Frauds, 1677. Section 4 of the act
said that all agreements in respect of transfer of lands must be in writing. But, the
strict application of the law created great hardships for the transferees who had performed
their part of the contract by paying the price; still they did not get title of the land
because of the absence of legal formalities. Equity then came to their help. The equity
protected the interests of the transferees who were holding the land on the basis of
oral contract and had performed their part of contract. Since then, the equity of part
performance developed further and had passed through several stages to protect the
interest of the transferees who had performed their part of contract in good faith and
the transferor harasses them to be thrown out of the land.

The Doctrine of Part Performance in Indian Law is based on the English principle of
Equity which believes that if a man has made bargain with another person and has
allowed him to act upon it, then such a person cannot resist the contract on the grounds
that the performance has not been done in the manner laid down in the contract or
want of evidence. This section was added to the statute book after the case of Elizabeth
Maddison v. John Alderson2 , where a man had induced his woman to serve as a
house-keeper without payment of any wage against a verbal promise that he will leave
her in his will a life-estate in his land. The man died without making a will and thus
the woman claimed for the specified performance of the verbal contract which was
based on the English doctrine of equity but the court said that continuance in her
service was not in direct reference to the contract was "to be understood even without
the existence of such contract".

The English Concept of Equity has been made applicable under Statute of Frauds, and
it has been held in various cases ranging from Maddison vs Alderson to Walsh vs
Lonsdale3 , whose ratios have also been applied in many Indian cases as precedents,
where a contract between two parties, whether written or unwritten, and one party has
acted upon his/her part of the contract, an equity will be created for the other party,
otherwise, fraud will be committed on the party who performs an act in furtherance of
its performance in confidence of the terms of the contract.

2 (1883) 81 A.C. 467

3 (1882) 21 Ch. D 9

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

PART PERFORMANCE IN INDIA BEFORE 1929

Before 1929, the English equity of part performance was been applied to some cases
and in some it was not applied. In the case of Mohammad Musa vs Aghore Kumar
Ganguli4 , where there was a deed which was in writing but it was not registered, a
land was to be divided between the parties who had taken possession over their
respective shares on the basis of the compromise deed. The Privy Council by applying
the English equity of part performance held that it was a valid document even though
it was unregistered.

Later on, in case of Ariff vs Jadunath , the plaintiff had granted a permanent lease of
land to the defendant. The lease was oral and unregistered, on the basis of which the
defendant had taken the possession of the land and made building on it. After 10 years,
the plaintiff refused to grant the lease and sought to evict the defendant from the land.
The Privy Council had changed its opinion and held that the doctrine of part-performance
could not be applied in India as it would by-pass the provisions of the Indian
Registration Act and Section 107 of Transfer of Property Act (according to which, a
permanent lease can be granted only by a written and registered document; an agreement
against such enacted law will not be held valid under this doctrine).

AMENDMENT OF SECTION 53-A

An amendment was made in Section 53-A of Transfer of Property Act by the

Registration and Other Related Act (48 of 2001)6 :

" In para 4 of Section 53-A, the words "the contract though required to be
registered, has not been registered" is now omitted. This means that if a contract
has not been registered for transfer of consideration, it will not be a relevant
factor for the application of part-performance under the section and the defense
for un-registered document is also made available.
" The same Amending Act (48 of 2001) has simultaneously amended Section 17
and Section 49 of Registration Act. Therefore, the amendment in section 53-A
should be read with amendments in section 17 and section 49 of Registration

4 (1914) 42 Cal. 801; 28 IC 930

s (1883) 8 App. Cas. 467
6 Received the assent of the President on 24-9-2001

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

Act. A new clause has been inserted in Section 17 of the Registration Act (i.e.
17-A) which provides that the written documents for the transfer of an immovable
property with consideration shall be registered for the purpose of Section 53-A
of the TP Act, unregistered documents will have no effect.
* Although, Section 53-A incorporates a substantive right i.e. the right to continue
the possession of a person which he has already possessed. So, Section 49 of
Registration Act is interpreted to mean that an unregistered written document
will also be considered as valuable evidence in the eyes of Court of the factual
position of the possession of the property in question.

In nutshell, the amendments of Section 17 and Section 49 of Registration Act

incorporates the laws which fulfill the real purpose of amending Section 53-A of the
T.P. Act. The objective of these amendments (Amending Act 48 of 2001) is that there
should be no perpetual possession of an immovable evading the law of registration.

INGREDIENTS OF SECTION 53-A

The Supreme Court has given the essential conditions to be fulfilled under this section
in the case of Vasanthi vs Venugopal' :

1. Written Contract: For Section 53-A to be applicable, it is important that the

contract must be a written one. In Leprosy Mission vs N. V V Satya Narayana
Reddy8 , there was neither written contract nor any evidence that the property was
been delivered to the transferee. So, the Court held it to be an invalid possession
by transferee and Section 53-A will not be applicable. Writing alone is not
sufficient. The contract must also be duly executed i.e. it should be signed
by the transferor or by any other person on his behalf.

2. Valid Contract: Section 53-A is applicable only when the contract for transfer
is valid i.e. the agreement shall be enforceable under the Indian Contract
Act, 1872. In Ranchoddas v. DavajiP , the Supreme Court laid down that a
valid contract must be for consideration, in writing and signed, the terms

7
AIR 2017 SC 1569
8 AIR 1998 AP 285
9 AIR 1977 SC 1517

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

necessary to constitute the transfer can be ascertained with reasonable

certainty.

3. Transferee must take possession or continue to hold possession: The next

essential condition is that the transferee should have taken possession in
furtherance of or in part performance of contract. If the transferee has once
taken the possession of the property, the fact that subsequently he lost that
possession cannot deprive him of his rights under Section 53-A. 10 In Roop
Singh vs Ram Singh" , the Supreme Court held that once it is admitted that
the plaintiff had came into possession of the land lawfully and had continued
to remain in possession till the date of suit, the plea of adverse possession
will not be available to the defendant.

4. Some act in furtherance of 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. The purpose of bringing such an
act in furtherance of the performance is to prove that the transferee has not
taken possession accidentally or casually but as a part of the contract under
consideration and thus, would form a Part Performance under the meaning
of Section 53-A. Such an act must not be done as a past act or in relation
or referable to any other contract. A direct co-relationship must be established
between the act done on furtherance and the contract in whose furtherance
such act has been done.

5. Transferee is willing to perform his part of contract: We know that Section

53-A is based on the principle of equity. So, if a person claims protection
of his possession over a land, 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. The willingness
to perform the part is to be absolute and unconditional. If the willingness is

10Achayya vs Venkata Subha Rao, AIR 1957 AP 854

" AIR 2000 SC 1485

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

studded with a condition, it will be more like an offer and not be termed
as willingness. 12

If these requirements are fulfilled, the transferee is entitled to claim under this section
that he should not be evicted/ dispossessed from the property.

EXCEPTION TO SECTIONS 53-A

The rule laid down in this section is not applicable on the right of a subsequent
transferee for consideration who has no notice of the contract or of the part
performance.

NATURE OF TRANSFEREE'S RIGHTS UNDER SECTION 53-A

1. No title or interest in property: Section 53A does not affect the ownership rights
of the proposed transferor, he still remains the full owner of the lands till they
are legally conveyed by sale-deed to the transferee.
2. Passive equity; no right of action: Section 53A merely provides a right of
defense; it can be used only as a shield not as a sword. The scope of this
section is therefore, limited because no right of action is available to transferee.
3. The leading case law which deals with the nature of rights of transferee is
Prabodh Kumar Das vs Dantamara Tea Co. Ltd 3 where the Privy Council
held that in India the equity of part-performance was not an active equity. It
does not give any right of action to the transferee who is in possession of
property under an unregistered contract of sale.

DIFFERENCE BETWEEN ENGLISH LAW AND INDIAN LAW

Although Section 53-A incorporates the provisions of English equitable doctrine of part-
performance, but, the Indian law is not the total incorporation of the doctrine. There
are certain notable differences between the two:

Under English law, the doctrine is applicable to both written and oral agreements, but,
the Indian Doctrine is applicable only to the written contracts.

12 Jacob Private Ltd. vs Thomas Jacob, AIR 1995 Ker. 249

13 AIR 1940 PC 1

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

In England, the equity of part-performance is active as well as passive i.e. the

transferee is entitled to defend his possession as well as file and independent suit
claiming possession. In India, Section 53-A does not give any right of action to the
transferee i.e. it is in passive form only.

CONCLUSION

Section 53-A gives a protection to the transferee that he cannot be disposed. Neither
does it confer any right on the transferee nor does he get any additional rights than
what he has got under the original contract. However, the transferor is free to impose
any other right against the transferee which he has reserved for himself So, we can
say that Section 53-A confers only a limited right on the person who is claiming relief
under it. Thus, the doctrine of part performance is an equitable doctrine which is
incorporated to prevent any fraud which can be done on account of non-registration of
the document.

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