SCHOOL OF LAW
UNIVERSITY OF PERTOLEUM AND EBERGY STUDIES
Bidholi Campus, Energy Acres, Dehradun- 248007
January 2021-2022
Transfer of Property Easement Law
Project
On
DOCTRINE OF PART PERFORMANCE
Submitted by:
Vishal Kumar
(500068888)(BTech LLB /6th sem)
Under the guidance of
Dr. Shikha Dimri
Associate Professor, School of Law
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Abstract
Property is one of the most fundamental elements of an individual's socioeconomic life. From
a legal point of view, the property can be described as a set of rights to a thing or land.
However, the word has gradually acquired a broader meaning. Therefore, the economic
importance of the property is based more on its disposal. Therefore, property law has
become an important branch of civil law.
The Transfer of Property Act, 1882 deals with the transfer of immovable property inter-vivos
(although some provisions regulate the transfer of movable as well as immovable property).
Prior to this enactment, property transfers were largely governed by English principles
applied by Anglo-Indian courts. The “doctrine of part performance” is one of the equitable
doctrines employed by these courts.
Introduction
The concept of Part performance was taken from English law. However, this principle is an
English doctrine, but in India, it was adopted with some differences. Therefore, the English
Part Performance Doctrine and Indian Part Performance Doctrine contained in the Transfer of
Property Act (TPA) of 1882 under Section 53A differ in some respects. The relevant section
at TPA has undergone several changes over time.
The doctrine of part performance aims to protect the transferee of immovable property on
condition that all of the conditions laid down in Section 53A of the TPA are fulfilled and in
all the conditions necessary to complete the sale are fulfil as per the Contract Act, 1872 to
also consider unrecorded or unregistered sales as a protected transfer of adverse acts by the
transferor. However, Section 53A only applies as a defence in accordance with other
statutory provisions on the transfer of the immovable property. Again, these provisions like
Section 53A have been changed and this has not only affected the operation of the Section
but also set its boundaries.
Section 53A protects the interests of the property buyer who has fulfilled his obligations and
is ready to fulfil his obligations, and then only the transferor cannot take action against him
and regain possession or cancel the sale. In case, if the buyer is in default or appears to fail to
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deliver on their promises necessary to complete the sale, the buyer may not receive protection
under Section 53A and the seller may cancel the sale and regain ownership. The purchaser's
fulfilment of the conditions should be taken into account in the light of the terms agreed in
the contract and also the applicable provisions of Indian Contract Act. Therefore, the seller
can insist that the buyer keeps his promises, which he may have to fulfil in turn, if applicable
and provided for in the contract.
Part performance as a doctrine in the Indian context, it only acts as a shield or defence
mechanism for the transferee and not as a sword, i.e., something that a party like other
provisions would aggressively sue. Hence the problem lies in understanding its application.
This project is primarily concerned with the type of situations where this doctrine could be
applied, or where Section 53A would and would not be drawn. The provision establishes a
legal right of the transferee against a right of the transferor to defend his possession over the
property, regardless of whether it has been taken into possession or a right to the community
of ownership, the scope of which is discussed in the project.
Section 53A under TPA
1 [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 2
[……]1, or, where there is an instrument of transfer, that the transfer has not been completed
in the manner prescribed there for 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.]
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.
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The Section has been described by the Privy Council 2, 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
Scope
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.5
In relation to the applicability of Section 53A, it should be seen that the Section provides a
shield for the proposed transferee to remain in possession of the original owner who has
agreed to sell to the acquirer if the proposed transferee meets the other conditions of Section
53A. It does not transfer ownership or interest in the property owned to transferee. With the
exception of the right to continue with its possession, no other title or interest is created in
favour of the transferee.
Essential Conditions for the Application of Section 53A
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.
4
Amrao v. Baburao, (1950) ILR Nag 25. See Hamida v. Smt Humer and Smt Humer and ors. AIR 1992 All
346.
5
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.
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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 53A 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 1677 Statute of Fraud. In accordance with Article 4 of this
Act, all land transfer agreements must be made in writing. The transfer of immovable
property based on a verbal agreement was illegal and the transferee was unable to obtain
ownership of the land. The strict application of this law created great difficulties and a buyer
in good faith who fulfilled his part of the contract by paying the price in whole or in part and
also had taken possession of the land could not obtain the title merely because of the absence
of legal formalities. These transferees were helpless and harassed. Then Equity came to
rescue them. The Chancery courts believed that the part performance of such transferee
would remove their cases from the fraud statuette. Since then, the equity of the part
performance has evolved and has gone through several phases in order to protect the interests
of the transferee, who had fulfilled their contractual part in good faith, and the transferor has
tried to harass them for a technical defect in the contract.
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Walsh v. Longsdale6 and Maddison v. Maddison vs. Alderson Alderson7 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 v. ALDERSON8
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 performance was a condition
precedent to the contract. The heir of A was able to recover the said property
WALSH v. LONGSDALE9
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 v. Aghor Kumar Ganguli Ganguli10 decided that the
doctrine of part performance is applicable in India. In this case there was a letter of
commitment that was in writing but not registered. As a result of this act, there was a division
6
(1882) 21 Ch D 9.
7
(1883) 8 A.C. 467
8
Ibid 6
9
Ibid 7
10
(1914) 42 Cal. 801
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of certain lands between the parties who had taken possession of their respective parts of the
land on the basis of the compromise deed. The parties owned their land for many years. After
about forty years, the parties' heirs rejected the transaction deed, claiming it was not
registered. The Privy Council applied the doctrine of part performance set out in Maddison
Maddison v. Alderson and found that the deed of undertaking, although not as recorded in
writing, was a valid document and cannot be rejected. However, a few years later there were
mixed views that the doctrine could not be used to override legal provisions. Eventually, in
1929, the Transfer of Property Act was amended and the English law of part performance
became part of Indian law, through slightly modifications.
The law contained in section 53A of the law is almost the same as that laid down by the Privy
Council in the case of Mohammed Musa, who applied the English equity of part performance
with certain restrictions. The law contained in TPA is more restricted than UK equity in two
ways. First, justice in England also protects the interests of the defendant who has taken
possession of an oral agreement, while Section 53-A requires the agreement to be in writing.
Second, equity in England also gives a right of action against the evacuator, but Section 53-A
does not give such a right.
Limitations of Section 53A
Available Only as a Defence
The Privy Council in Probodh Kumar Das v. Dantmara Tea Co.11 has ruled that the right
granted by Section 53A is available to the defendant to protect his property. The section is
structured so that it imposes statutory bar on the transfer and does not give the transferee an
active title. The above law was passed with the approval of the Supreme Court in the case of
Technicians Studio Pvt. Ltd. followed v. Leela Ghosh.12
It has been argued that Section 53A is only a partial importation of the English doctrine of
part performance into Indian law. A person who is taken into possession based on a void
lease, therefore, does not acquire any interest in the property, but only has the right to defend
11
AIR 1940 PC 1.
12
AIR 1977 SC 324.
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their property according to Section 53A. It can only be used for defence. 13 After Probodh
Kumar, the Supreme Court again in Delhi Motor Company v. U.A.Basrurkar14 has decided
that Section 53A is only available as a defence for the lessee and not as a confirmation of a
right on the basis of which the lessee can assert rights against the lessor.
This section does not confer property on the defendant in possession15, and it cannot maintain
a claim to the title. The Supreme Court has endorsed this principle. It can be concluded from
this that this section does not create a title for the defendant, but merely represents an
obstacle for the plaintiff to assert his title. It is limited to cases in which the transferee has
taken possession and against which the transferor is excluded from asserting a right other
than that specified in the contract. However, the words of the section do not justify the
conclusion that the plaintiff as such is necessarily excluded from the benefit of this section. 16
The true position, as explained by Judge Subba Rao in a case ruled by the 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 resist the transferor’s claim against the
property. 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
on 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 f and as a defendant so
defendant so long as he us long as he uses it as a shiel es it as a shield.”17
The correct interpretation of this section is that this section only gives the acquirer the right to
defend his possession, this defence of property can take the form of a plaintiff or a defendant.
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
Radhanath Swain v. Madhusudan, AIR 1956 Ori 58.
17
Achayya v. Venkata Subba Rao, AIR 1957 AP 854.
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Transfers and Agreements Covered by this Section
This section applies to leases and agreement to leases. If an agreement to lease is evidenced
by correspondence, the lessee is confiscated and is put in possession, and the lessor has
accepted the rent for several years, the Supreme Court has ruled that this section applies and
the lessee can defend the deportation action. This also applies to usufructuary mortgages and
mortgages with possession.18 However, it does not apply to a family agreement that does not
involve a transfer of ownership,19 or a partition that is not transferred at all. This also does not
apply to a license or transfer of movable property.20
Right Expressly Provided by the Contract
The transferor can exercise a right expressly provided for in the contract. If the contract were
an agreement of lease and provable due to lack of registration, the lessee could resist a
demand for rent. If he did so, his right will be taken away in favour of the section if he is
unwilling to carry out your part of the contract. Likewise, if a lessee has already taken
possession of certain premises in a part performance of an unregistered lease, the lessor can
enforce the term of the lease, which grants him the right to re-enter, if there is a breach of the
payment of six months’ rent.21 If the unregistered lease agreement is only valid for a term,
there is also no right to remain in possession after the term has expired.22
Proviso: Transferee for Consideration without Notice
The proviso to this section protects the rights of a subsequent transferee to appraise
inadvertently the rights of the transferee prior to part performance. Therefore, this section
18
Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81; Rami Reddi v. Venkat Reddi, AIR 1963 AP 489 eddi v.
Venkat Reddi, AIR 1963 AP 489.
19
Jileba v. Marmersa, AIR 1950 All 700.
20
Rashakretayya v. Sarasamma , AIR 1951 Mad 213.
21
Muralidhar v. Tara Dye, AIR 1953 Cal 349.
22
Radha Charan Das v. Pranbati Dassi, (1959) 63 Cal WN 535.
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does not affect the rights of a transferee against the consideration that does not have
notification of the contract of sale or part performance.
The purpose of the proviso is to thwart the claim that would otherwise have been successful
in the main body of this section. 23 The question of proviso does not arise until the applicant
has justified his request in accordance with the main part of this section. 24 The proviso of the
section reserves the right to compensation to the transferee who does not have notification of
the contract or its part performance. The burden of proof that you are a transferee, which
must be examined without prior notice, rests with the transferee 25. This was the case before
the adoption of Section 53A.
When is Doctrine of Part Performance 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.
Conclusion
The doctrine of part performance is an equitable doctrine that is intended to mitigate the
severity of the law and provide relief when a transfer or a transfer agreement does not meet
the requirements laid down by the law. In England the doctrine was developed by Equity
23
SOLI J SORABJEE, DARASHAW J VAKIL‟S COMMENTARIES ON THE TRANSFER OF PROPERTY
ACT 595 (2nd edn Wadhwa Nagpur 2004).
24
S Veerabadra Naicker v. S Sambanda Naicker, AIR 2003 Mad 19; Yasodammal v. Janaki Ammal, AIR 1968
Mad 294
25
Prova Rani v. Lalit Mohini, AIR 1960 Cal 541.
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courts. And as amended, it has been legally recognized in India to be included in Section
53A.
Section 53A of the Property Transfer Act applies to a person who engages in the written
transfer of immovable property. If the transferee proposed in the agreement has taken
possession of or continues to own the property that is already in possession, partially in
accordance with the contract, and has performed an act in accordance with the contract and
the transferee has performed or the transferee willing to perform his part of the contract is not
allowed to exercise any rights in relation to the property.
In addition, Section 53A does not confer any title or interest in the property in his possession
to the transferee. In addition, it does not grant the transferee any right of action. It only offers
a right of defence. This is at the core of the principle contained in Section 53A of the Transfer
of Property Act.
Bibliography
Books
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1. Sarthi Vera P., G.C.V. Subba Rao‟s Law of Transfer of Property (Easements, Trust
and Wills), 6 th 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 Kuchwar Lime Stone Co. v. Secretary of
State, AIR 1 State, AIR 1936 Pat 372. 936 Pat 372.
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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.
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