Tpa-doctrine of Part Performance

INTRODUCTIONProperty is one of the most fundamental elements of the socio-economic life of an

individual. Juridically, property can be said to be a bundle of rights in a thing or a land.

However, the word has gradually been given a wider meaning. Economic significance of

the property, therefore, rests more on its dispositions. Property law has therefore become

an important branch of civil law. The Transfer of Property Act, 1882 deals with the

transfer of immoveable property inter-vivos (although some provisions deal with the

transfer of moveable as well as immovable property).

Before this enactment, the transfers of immovable property were mostly governed by

English equitable principles as applies by Anglo-Indian Courts. The ‘doctrine of part-

performance’ is one of the equitable doctrines applied by these Courts.

DOCTRINE OF PART PERFORMANCE

Doctrine of part performance is an equitable doctrine. It is also known as ‘equity of part-

performance’. In law of contracts (for e.g., a contract for sale), no rights pass to another

till the sale is complete. But if a person after entering into a contract performs his part or

does any act in furtherance of the contract, he is entitled to reimbursement or performance

in case the other party drags its feet. This doctrine is based on this part performance of

contract. If a person has taken possession of an immovable property on the basis of

contract of sale and has either performed or, is willing to perform his part of contract

then, he would not be ejected from the property on the ground that the sale was

unregistered and the legal title had not been transferred to him.

Doctrine Of Part- Performance

AIMS AND OBJECTIVES

The aim of the project is to present a detailed study on the topic of

‘Doctrine of Part- Performance’ under the Transfer of Property Act,

1882.

SCOPE AND LIMITATIONS

Though this is such a topic that a book can be written on it but because of certain

restrictions and limitations I was not able to deal with the topic in great detail.

SOURCES OF DATA

The following secondary sources of data have been used in the project-

1. Articles

2. Books

3. Websites

METHOD OF WRITING

The method of writing followed in the course of this research paper is primarily

analytical.

RESEARCH METHODOLOGY

The research work of this project is based on doctrinal method.

MODE OF CITATION

The researcher has followed a uniform mode of citation throughout this

project.

Chapterization

The project have been divided into various chapters each dealing with different aspects of

the topic.


PART – PERFORMANCESection 53A of the Transfer of Property Act provides that “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 […..]1 where there is an instrument of transfer, that the

transfer has not been completed in the manner prescribed therefore by the law for the

time being in force, the transferor or any other 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 the rights 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 Section has been described by the Privy Council2, and by the Supreme Court3, as

partial importation of the English of doctrine of part performance. By virtue of this

Section part performance does not give rise to equity, as in England, but to a statutory

right.4

1 The words ‘the contract, though required to be registered, has not been registered or’ has been omitted by Section 10 of the Registration and Other Related Laws Amendment Act 2001 (Act no. 48 of 2001) with effect from 24 September, 2001.2 Mian Pir Bux v. Sardar Mahomed Tahar, AIR 1934 PC 235; AMA Sultan and Ors. v. Seydu Zohra Beevi, AIR 1990 Ker 186.3 Maneklal Manuskhbahi v. Honnusji Jamshedji, AIR 1950 SC 1; Chaliagulla Ramchandrayya v. Boppana Satyanarayana, AIR 1964 SC 877; See also Nathu Lal v. Phoolchand, [1970] 2 SCR 854; Sardar Govindrao Mahadik & anr. v. Devi Sahai and ors., AIR 1982 SC 989.4 Amrao v. Baburao, (1950) ILR Nag 25. See Hamida v. Smt Humer and ors. AIR 1992 All 346.


ESSENTIAL CONDITIONS FOR THE APPLICATION OF SECTION

53-A

Analysis of the provisions of Section 53A makes it clear that following essential

conditions are necessary for its application:

a) There is a contract for the transfer of an immovable property. The contract must be

written and it must be for the transfer of an immovable property for consideration.

Also, the contract must be valid in all respects.

b) The second essential is that the transferee has taken the possession of the property

or continues possession in part-performance of the contract or, has done some act

in the furtherance of the contract.

c) When a person claims protection of his possession over a land under Section 53A,

his own conduct must be equitable and just. That is the transferee has either

performed his part of contract or is willing to perform the same.

When the above mentioned conditions are fulfilled, the transferee can defend his

continuance of possession over the property. In other words, if these requirements are

fulfilled, the transferee is entitled to claim, under this Section, that he should not be

dispossessed or evicted from the property.


COMPARISON OF 53 – A WITH ENGLISH

DOCTRINE OF PART PERFORMANCE

Under English law, the equity of part – performance was developed by the Chancery

Courts against the strict provisions of the Statute of Frauds, 1677. Sec – 4 of this Act

provided that all agreements in respect of transfer of lands must be in writing. The

transfer of immovable property on the basis of oral agreement was illegal and the

transferee couldn’t get title in the land. Strict application of this law created great

hardships and a bona fide transferee who performed his part of contract of by paying the

price in full or in part and who had also taken possession of land couldn’t get title merely

because of the absence of the legal formalities. Such transferees were helpless and were

being harassed. Equity then came to their help. Chancery Courts held that part –

performance by such transferees would take their cases out of the Statue of Frauds. Since

then, the equity of part – performance developed further and passed through several

stages for protecting the interests of the transferees who had performed their part of

contract in good – faith and the transferor attempted to harass them on the ground of

technical defect in the contract.

Walsh vs. Longsdale5 and Maddison vs. Alderson6 are two of the major cases that have

helped develop the doctrine of part performance in England. In India, this doctrine has

been enacted with a few modifications.

MADDISON vs. ALDERSON7

B was A’s servant. A had promised B a certain property as life estate, meaning B could

enjoy the property during his life time. B served A for years upon this promised life

estate. The will bequeathing such interest and property to B failed due to want for proper

attestation. After A died, one of his heirs brought action to recover the property from B.

It was held that the act of part performance could not be proof of the contract since the

5 (1882) 21 Ch D 96 (1883) 8 A.C. 4677 Ibid 6


performance was a condition precedent to the contract. The heir of A was able to recover

the said property.

WALSH vs. LONGSDALE8

Walsh took a cotton mill on lease for 7 years from Longsdale, the owner of the mill. The

agreement was prepared but not signed. In the meantime, rent arrears started to

accumulate as Walsh could not keep up with the quarterly payments of rent. An advance

of one year’s rent could be demanded by Longsdale as per the contract. Lonsdale

demanded the advance rent for one year and seized some goods of Walsh when he

defaulted. Walsh sued for damages.

The House of Lords decided in favour of Lonsdale stating that by running the mill, Walsh

had admitted he was a lessee and evidence of his consent to the unsigned lease deed.

The rule laid down in Walsh vs. Longsdale is not applicable in India – as it did not

constitute the doctrine of part performance.

Before 1929 (when Section 53A was inserted in the Transfer of Property Act), the

application of English equity of part-performance was neither certain nor uniform. In

certain cases it was applied whereas in other cases it was not applied.

The Privy Council in Mohd Musa vs. Aghor Kumar Ganguli9 held that doctrine of part

performance is applicable in India. In this case there was a compromise deed which was

in writing but not registered. Under this deed there was division of certain lands between

the parties who had taken possession over their respective parts of the land on the basis of

the compromise deed. The parties continued possession over their lands for many years.

After about forty years, the heirs of the parties repudiated the compromise deed on the

ground that it was not registered. The Privy Council applied the doctrine of part-

performance as stated in Maddison v Alderson and held that although the compromise

deed was unregistered but, since it was in writing, it was a valid document and can’t be

repudiated.

8 Ibid 59 (1914) 42 Cal. 801


But there were divergent views a few years later stating that doctrine cannot be used to

override statutory provisions. Finally in 1929, the Transfer of Property Act was amended

and the English law of part performance became a part of Indian Laws though a little

modified.

The law contained in Section -53 A of the Act is almost same as laid by Privy Council in

Mohammed Musa’s case, which had applied the English equity of part-performance with

certain restrictions. The law incorporated in TPA is more restricted than English equity in

two respects. Firstly, in England the equity protects the interest of also such defendant

who has taken possession on the basis of oral agreement, whereas under Section – 53-A,

the agreement must be written. Secondly, in England the equity gives also a right of

action against the evictor, but Section – 53-A gives no such right.


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:

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

b) The contract must be in writing, signed by the transferor, or by someone on his

behalf.

c) The writing must be in such words from which the terms necessary to construe the

transfer can be ascertained.

d) The transferee must in part performance of the contract take possession of the

property, or of any part thereof.

e) The transferee must have done some act in furtherance of the contract.

f) The transferee must have performed or be willing to perform his part of the

contract.10

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 favour of the

transferee.

10 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.


LIMITATIONS OF SECTION – 53 – A

AVAILABLE ONLY AS A DEFENCE

The Privy Council in Probodh Kumar Das v. Dantmara Tea Co.11has 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.12

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.13

Following Probodh Kumar, the Supreme Court again in Delhi Motor Company v.

U.A.Basrurkar14 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 possession15; and he cannot

maintain a suit on title.16 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.17 The true position as explained by

Justice Subba Rao, in a case decided by Andhra Pradesh High Court is:

11 AIR 1940 PC 1.12 AIR 1977 SC 324.13 Ram Gopal Reddy v. Additional Custodian, Evacuee Property, AIR 1966 SC 1438.14 AIR 1968 SC 794.15 Kuchwar Lime Stone Co. v. Secretary of State, AIR 1936 Pat 372.16 S.N.Banerjee v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128.17 Radhanath Swain v. Madhusudan, AIR 1956 Ori 58.


“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.”18

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.

TRANSFERS AND AGREEMENTS COVERED BY THIS SECTION

This Section applies to leases and agreements to lease.19 Where an agreement to lease is evidenced by correspondence, the lessee is put in possession, and there has been acceptance of rent by the lessor for several years, the Supreme Court held that section was applicable, and the lessee could defend the suit for ejection.20 It also applies to usufructuary mortgages and mortgages with possession.21

It however does not apply to a family agreement which does not involve a transfer of property22, or to a partition which is not transfer at all.23 It also doesn’t apply to license or to the transfer of moveable property.

RIGHT EXPRESSELY PROVIDED BY THE CONTRACT

The transferor may enforce a right which is expressly provided by the contract. So, if the contract were an agreement of lease not provable for the want of registration, the lessee could resist a demand for rent. Of he did so, he will be disentitled to the benefit of the Section as not being willing to perform his part of the contract. so also where a lessee has already put in possession of certain premises in part performance of an unregistered lease, the lessor can enforce the term of the lease entitling him to re-enter, if there default in payment of six months’ rent.24

18 Achayya v. Venkata Subba Rao, AIR 1957 AP 85419 Maneklal Mansukhbhai, supra note 3.20 Ibid.21 Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81; Rami Reddi v. Venkat Reddi, AIR 1963 AP 489.22 Jileba v. Marmersa, AIR 1950 All 700.23 Rashakretayya v. Sarasamma, AIR 1951 Mad 213.24 Muralidhar v. Tara Dye, AIR 1953 Cal 349.


Similarly, if the unregistered lease was only for a term, there would be no right to continue in possession after the expiry of the term.25

PROVISO: TRANSFEREE FOR CONSIDERATION WITHOUT

NOTICE

The proviso to this Section protects the rights of a subsequent transferee for value without notice of previous transferee’s rights of part-performance. Therefore, this Section does not affect the rights of transferee for consideration who has no notice of the contract of sale or of part-performance.

The purpose of the proviso is to defeat the claim which would otherwise, have succeeded under the main part of this Section.26 The question of proviso does not arise until and unless the claimant has substantiated his claim under the main part of this Section.27 The proviso to the Section saves the right of a transferee for consideration who has no notice of the contract or its part-performance. The burden for proving that he is a transferee for consideration without notice is on the transferee.28 This was so held prior to the enactment of Section 53A.

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 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.

25 Radha Charan Das v. Pranbati Dassi, (1959) 63 Cal WN 535.26 SOLI J SORABJEE, DARASHAW J VAKIL’S COMMENTARIES ON THE TRANSFER OF PROPERTY ACT 595 (2nd edn Wadhwa Nagpur 2004).27 S Veerabadra Naicker v. S Sambanda Naicker, AIR 2003 Mad 19; Yasodammal v. Janaki Ammal, AIR 1968 Mad 29428 Prova Rani v. Lalit Mohini, AIR 1960 Cal 541


CONCLUSION

The doctrine of part performance is an equitable doctrine designed to relieve the rigor of

the law and provide a remedy when a transfer or an agreement for transfer falls short of

the requirements laid down by the law. In England the doctrine was developed by the

Equity Courts. In a modified form it has been recognized statutorily in India being

embodied in Section 53A.

Section 53A of the Transfer of Property Act applies to a person who contracts to transfer

immovable property in writing. If the proposed transferee in agreement has taken

possession of the property or he continues in possession thereof being already 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, the transferor shall be debarred from enforcing any right in respect of the

property.

Also, Section 53A does not confer any title or interest to the transferee in respect of the

property in his possession. Furthermore, it does not give to the transferee any right of

action. It provides merely a right of defence. This is the essence of the principle

incorporated in Section 53A of the Transfer of Property Act.


BIBLIOGRAPHY

BOOKS

1. Sarthi Vera P., G.C.V. Subba Rao’s Law of Transfer of Property (Easements,

Trust and Wills), 6th edn, Alt Publications, Hyderabad, 2005

2. Singh Avtar, The Transfer of Property Act, Universal Law Publishing Co. Pvt.

Ltd., Delhi, 2005

3. Sinha R.K., The Transfer of Property Act, 12th edn, Central Law Agency,

Allahabad, 2011

CASE LAWS

1. Achayya v. Venkata Subba Rao, AIR 1957 AP 854;

2. Probodh Kumar Das v. Dantmara Tea Co, AIR 1940 PC 1.

3. Delhi Motor Company v. U.A.Basrurkar, AIR 1968 SC 794.

4. Technicians Studio Pvt. Ltd. v. Leela Ghosh, AIR 1977 SC 324.

5. AMA Sultan and Ors. v. Seydu Zohra Beevi, AIR 1990 Ker 186.

6. Amrao v. Baburao, (1950) ILR Nag 25

7. Ariff v. Jadunath, AIR 1931 PC 79

8. Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81;

9. Balram Jairam v. Kewalram, AIR 1940 Nag 396

10. Bhabhi Dutt v. Ramlalbyamal, AIR 1934 Rang. 303.

11. Bhagwandas v. Surajmal, AIR 1961 MP 237.

12. Chaliagulla Ramchandrayya v. Boppana Satyanarayana, AIR 1964 SC 877

13. Chaman Lal v. Surinder Kumari, AIR 1983 P&H 323.


14. Chetak Construction Ltd. v. Om Prakash, AIR 2003 MP 145.

15. Damodaran v. Shekharan AIR 1993 Ker 242,

16. Delhi Motor Co. v. Basurkar, AIR 1968 SC 794.

17. Gajdhar v. Bachan, AIR 1943 All 768.

18. Hamida v. Smt Humer and ors., AIR 1992 All 346.

19. Hazilal v. Jugal Kishore, AIR 1999 MP 104.

20. Hemraj v. Rustomji, AIR 1953 SC 503.

21. Jacobs Private Limited v. Thomas Jacob, AIR 1995 Ker 249

22. Jileba v. Marmersa, AIR 1950 All 700.

23. Kripa Ram v. Bishen Das, AIR 1944 Lah 179.

24. Kuchwar Lime Stone Co. v. Secretary of State, AIR 1936 Pat 372.

25. M. Mariappa v. A.K. Sathyanarayan Shetty, AIR 1984 Kant 58.

26. Madan Mohan v. Srinivas Prasad, AIR 1943 Pat 343.

27. Mahalakshmi v. Venkatareddi, AIR 1944 Mad 556.

28. Mahomed Musa v. Aghore Kumar Ganguli, (1914) ILR 42 Cal 801

29. Maneklal Manuskhbahi v. Honnusji Jamshedji, AIR 1950 SC 1

30. Manjural Hoque v. Mewajan Bibi, AIR 1956 Cal 350.

31. Maruti v. Krishna, AIR 1967 Bom 34.

32. Mian Pir Bux v. Sardar Mahomed Tahar, AIR 1934 PC 235

33. Muralidhar v. Tara Dye, AIR 1953 Cal 349.

34. N.P.Tripathi v. Damayanti Devi & Anr, AIR 1988 Pat. 123

35. Nathu Lal v. Phoolchand, [1970] 2 SCR 854.


36. Patel Natwarlal Rupji v. Kondh Group Kheti Vishayak, AIR 1996 SC 1088.

37. Prova Rani v. Lalit Mohini, AIR 1960 Cal 541

38. Radha Charan Das v. Pranbati Dassi, (1959) 63 Cal WN 535.

39. Radhanath Swain v. Madhusudan, AIR 1956 Ori 58.

40. Ram Gopal Reddy v. Additional Custodian, Evacuee Property, AIR 1966 SC

1438.

41. Ram Kumar Agarwal v. Thawar Das (1999) 7 SCC 303

42. Rambhao Namdeo Gajre v. Narayan Bapuji Dhotra, (2004) 8 SCC 614

43. Rami Reddi v. Venkat Reddi, AIR 1963 AP 489.

44. Ranchhoddas Chhaganlal v. Devaji Supdu, AIR 1977 SC 1517.

45. Ranchod v. Zipru, AIR 1954 Bom 153.

46. Rashakretayya v. Sarasamma, AIR 1951 Mad 213.

47. S Veerabadra Naicker v. S Sambanda Naicker, AIR 2003 Mad 19

48. S.N.Banerjee v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128.

49. Sadashiv Chander Bhamgare v. Eknath Pandharinath Nangude, AIR 2004 Bom

378.

50. Sardar Govindrao Mahadik & anr. v. Devi Sahai and ors., AIR 1982 SC 989.

51. Sham Lal v. Mathi, AIR 2002 HP 66 .

52. Shrimat Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi, AIR 2002 SC

960

53. Shukla Malhotra v. Vyasa Bank Ltd., (1998) 45 DRJ 504.

54. State of Uttar Pradesh v. District Judge, AIR 1997 SC 53.

55. Sulleman v. Patel, AIR 1933 Bom. 381.Doctrine Of Part- Performance

56. Sunil Kumar Sarkar v. Aghor Kumar Basu, AIR 1989 Gau 39.


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