Contents

Section 53-A of the Act, deals with definition of the doctrine and it says: ................................................................... 2
Ingredients of Section 53-A............................................................................................................................................ 3
1. Contract for Transfer of immovable property: ............................................................................................. 3
2. Transfer for consideration: ............................................................................................................................. 3
3. Possession in furtherance of Contract: .......................................................................................................... 4
4. Some Act in furtherance of the contract:....................................................................................................... 4
5. Transferee is willing to perform his part of contract: .................................................................................. 4
Scope of Doctrine of Part Performance ......................................................................................................................... 4
Legal Effect of the Amending Act (48 of 2001) in Section 53-A: .................................................................................... 5
Ingredients of Section 53-A............................................................................................................................................ 6
1. Contract for Transfer of immovable property: ............................................................................................. 6
2. Transfer for consideration: ............................................................................................................................. 7
3. Possession in furtherance of Contract: .......................................................................................................... 7
4. Some Act in furtherance of the contract:....................................................................................................... 7
5. Transferee is willing to perform his part of contract: .................................................................................. 7
Scope of Doctrine of Part Performance ......................................................................................................................... 7
Legal Effect of the Amending Act (48 of 2001) in Section 53-A: .................................................................................... 8
Section 53-A of the Act, deals with definition of the doctrine and it says: ................................................................... 9
Doctrine of Part Performance is an equitable doctrine and it is incorporated to prevent fraud and from taking
illegal advantage on account of non-registration of the document. This Doctrine is based on the maxim,
Equity look at as it is done which ought to have been done.

Basically the doctrine says that the transferor or any person claiming under him shall be debarred from
enforcing against the transferee and the person 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 term
of the contract.

Definition
The doctrine of part performance is enshrined in the provisions of The Transfer of Property Act, 1882.

Section 53-A of the Act, deals with definition of the doctrine and it says:
When any person contracts to transfer for consideration any immovable 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 where there is an instrument of
transfer, that the transfer has not been completed in the manner prescribed therefore by the law 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.
Illustration:
A contract to transfer his immovable property to B by way of sale and put B in possession of the property
before a regular Sale-Deed is executed. The contract is said to be partly performed and if later on A refuses
to execute regular document of sale and files a suit for eviction against B treating B as trespasser. Then B
can resist A’s claim on the ground that the contract of transfer in his favour has partly been performed and
that A should not be allowed to go back upon his own word.

Ingredients of Section 53-A

Bombay High Court in Kamalabai Laxman Pathak v. Onkar Parsharam Patil[1], has given emphasis on
the ingredients of the Section 53-A which are as follows:

1. Contract for Transfer of immovable property:

For the application of this section, the first condition is that there must be a contract and the contract
must be transfer of immovable property for value.
a) Written contract:
The contract must be written. Section 53 –A is not applicable if the contract for transfer is oral. In
V.R. Sudhakara Rao v. T.V. Kameswari[2], it was held that the benefit of section 53-A is not
available to a person who is in possession of property based on oral agreement of sale. Writing alone
is not sufficient. The contract must also be duly executed. That is to say, it should be signed by the
transferor or by any other person on his behalf.

b) Valid Contract:
It may be noted that Section 53-A is applicable only where contract for the transfer is valid in all
respects. It must be an agreement enforceable by law under the Indian Contract Act, 1872.

c) Immovable property:
This section is applicable only in case of transfer of immovable property. It does not apply to an
agreement for the transfer of movable property even though supported with consideration. The
defense of Part Performance is not available in respect of possession of movables (Hameed v.
Jayabharat Credit & Investment Co. Ltd and Ors.[3])

2. Transfer for consideration:

The written contract must be for the transfer of an immovable property for consideration. The written
contract on the basis of which the property has been possessed, must clearly suggest the transfer of
 property. If the document is ambiguous or confusing, this section cannot be made applicable. It is
one of the necessary ingredients of section 53-A that the terms of written contract must be
ascertainable with reasonable certainty (Hamida v. Humer and Ors.[4]).

3. Possession in furtherance of Contract:

The Transferee has taken possession 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 Beevi[5]).

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. Phoolchand[6]).

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 Govind[7])

Scope of Doctrine of Part Performance

The Doctrine of Part Performance is applicable to only written and valid contract. It is not applicable to oral
or void agreement. The contract must be in writing and signed by the transferor. The transferee has taken
possession of the property as a part performance of a contract and transferee must be ready and willing to
perform his part of promise. This section is applicable not only to the contract of sale but it is applicable to
all such contracts of transfer for consideration. It has been held in (Jacobs Private Limited vs. Thomas Jacob
[8]) that the doctrine is intended to be used as a shield, not a sword.

Amendments to Section 53-A of Transfer of Property Act, 1882 (hereinafter called as T.P. Act)

An amendment has been made in Section 53-A of Transfer of Property Act by the Registration and other
related laws and Act (48 of 2001). This Amending Act (48 of 2001) has made following changes in section
53-A:

Section Amendment

Sub Section 1 A of Registration Act inserted:

The documents containing contract to transfer for consideration, any immovable property for
the purpose of Scetion 53-A of Transfer of Property Act, 1882 (4 of 1882) shall be registered
Section 17
if they have been executed on or after the commencement of the Registration and other
Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after
such commencement then, they shall have no effect for the purposes of the said section 53-A

Section 49 of Registration Act, in the proviso; words, figures and letters as evidence of part
Section 49 performance of a contract for the purposes of Section 53-A of T.P. Act, 1882 (4 OF 1882),
shall be Omitted.

Section 53-A In Section 53-A, para no. 4 of T.P. Act, the words the contract, though required to be
para 4 registered, has not been registered, or, Omitted.

The provisions of this Amending Act (Act of 48 of 2001) came into force with effect from 24-September-
2001. This Amendment Act is not retrospective.

Legal Effect of the Amending Act (48 of 2001) in Section 53-A:

In para fourth of Section 53-A of T.P. Act, the words the contract, though required to be registered, has not
been registered has now been omitted. This may mean to suggest that non registration of any contract to
transfer for consideration is not any relevant factor (i.e. not necessary) for the application of part
performance under this section; and, the defense of part performance is available also on the basis of an
unregistered document.

But this is not the case. 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 Act.

In nutshell, the amendments of section 17 and section 49 of Registration Act has now incorporated the law
which fulfills the real purpose of amending Section 53-A of the T.P. Act. The object or the real purpose of
these amendments (Amending Act 48 of 2001) is that there should not be any perpetual possession of an
immovable evading the law of registration. Accordingly, section 53-A of the T.P. Act now insists upon proof
of some acts having being done in furtherance of contract. There must be real nexus between ‘contract’ and
the ‘acts done in pursuance or furtherance thereof’.

Conclusion:
Thus, the doctrine of part performance is an equitable doctrine. It is incorporated to prevent fraud from
taking advantage on account of non-registration of the document. It is based on the doctrine: Equity looks at
the intention rather than form.

Ingredients of Section 53-A

Bombay High Court in Kamalabai Laxman Pathak v. Onkar Parsharam Patil[1], has given emphasis on
the ingredients of the Section 53-A which are as follows:

1. Contract for Transfer of immovable property:

For the application of this section, the first condition is that there must be a contract and the contract
must be transfer of immovable property for value.
a) Written contract:
The contract must be written. Section 53 –A is not applicable if the contract for transfer is oral. In
V.R. Sudhakara Rao v. T.V. Kameswari[2], it was held that the benefit of section 53-A is not
available to a person who is in possession of property based on oral agreement of sale. Writing alone
is not sufficient. The contract must also be duly executed. That is to say, it should be signed by the
transferor or by any other person on his behalf.

b) Valid Contract:
It may be noted that Section 53-A is applicable only where contract for the transfer is valid in all
respects. It must be an agreement enforceable by law under the Indian Contract Act, 1872.

c) Immovable property:
This section is applicable only in case of transfer of immovable property. It does not apply to an
agreement for the transfer of movable property even though supported with consideration. The
defense of Part Performance is not available in respect of possession of movables (Hameed v.
Jayabharat Credit & Investment Co. Ltd and Ors.[3])
 2. Transfer for consideration:

The written contract must be for the transfer of an immovable property for consideration. The written
contract on the basis of which the property has been possessed, must clearly suggest the transfer of
property. If the document is ambiguous or confusing, this section cannot be made applicable. It is
one of the necessary ingredients of section 53-A that the terms of written contract must be
ascertainable with reasonable certainty (Hamida v. Humer and Ors.[4]).

3. Possession in furtherance of Contract:

The Transferee has taken possession 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 Beevi[5]).

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. Phoolchand[6]).

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 Govind[7])

Scope of Doctrine of Part Performance

The Doctrine of Part Performance is applicable to only written and valid contract. It is not applicable to oral
or void agreement. The contract must be in writing and signed by the transferor. The transferee has taken
possession of the property as a part performance of a contract and transferee must be ready and willing to
perform his part of promise. This section is applicable not only to the contract of sale but it is applicable to
all such contracts of transfer for consideration. It has been held in (Jacobs Private Limited vs. Thomas Jacob
[8]) that the doctrine is intended to be used as a shield, not a sword.
Amendments to Section 53-A of Transfer of Property Act, 1882 (hereinafter called as T.P. Act)

An amendment has been made in Section 53-A of Transfer of Property Act by the Registration and other
related laws and Act (48 of 2001). This Amending Act (48 of 2001) has made following changes in section
53-A:

Section Amendment

Sub Section 1 A of Registration Act inserted:

The documents containing contract to transfer for consideration, any immovable property for
the purpose of Scetion 53-A of Transfer of Property Act, 1882 (4 of 1882) shall be registered
Section 17
if they have been executed on or after the commencement of the Registration and other
Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after
such commencement then, they shall have no effect for the purposes of the said section 53-A

Section 49 of Registration Act, in the proviso; words, figures and letters as evidence of part
Section 49 performance of a contract for the purposes of Section 53-A of T.P. Act, 1882 (4 OF 1882),
shall be Omitted.

Section 53-A In Section 53-A, para no. 4 of T.P. Act, the words the contract, though required to be
para 4 registered, has not been registered, or, Omitted.

The provisions of this Amending Act (Act of 48 of 2001) came into force with effect from 24-September-
2001. This Amendment Act is not retrospective.

Legal Effect of the Amending Act (48 of 2001) in Section 53-A:

In para fourth of Section 53-A of T.P. Act, the words the contract, though required to be registered, has not
been registered has now been omitted. This may mean to suggest that non registration of any contract to
transfer for consideration is not any relevant factor (i.e. not necessary) for the application of part
performance under this section; and, the defense of part performance is available also on the basis of an
unregistered document.

But this is not the case. 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 Act.
In nutshell, the amendments of section 17 and section 49 of Registration Act has now incorporated the law
which fulfills the real purpose of amending Section 53-A of the T.P. Act. The object or the real purpose of
these amendments (Amending Act 48 of 2001) is that there should not be any perpetual possession of an
immovable evading the law of registration. Accordingly, section 53-A of the T.P. Act now insists upon proof
of some acts having being done in furtherance of contract. There must be real nexus between ‘contract’ and
the ‘acts done in pursuance or furtherance thereof’.

Conclusion:
Thus, the doctrine of part performance is an equitable doctrine. It is incorporated to prevent fraud from
taking advantage on account of non-registration of the document. It is based on the doctrine: Equity looks at
the intention rather than form.

Doctrine of Part Performance is an equitable doctrine and it is incorporated to prevent fraud and from taking
illegal advantage on account of non-registration of the document. This Doctrine is based on the maxim,
Equity look at as it is done which ought to have been done.

Basically the doctrine says that the transferor or any person claiming under him shall be debarred from
enforcing against the transferee and the person 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 term
of the contract.

Definition
The doctrine of part performance is enshrined in the provisions of The Transfer of Property Act, 1882.

Section 53-A of the Act, deals with definition of the doctrine and it says:
When any person contracts to transfer for consideration any immovable 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 where there is an instrument of
transfer, that the transfer has not been completed in the manner prescribed therefore by the law 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.

Illustration:
A contract to transfer his immovable property to B by way of sale and put B in possession of the property
before a Doctrine of Part Performance is an equitable doctrine and it is incorporated to prevent fraud and
from taking illegal advantage on account of non-registration of the document. This Doctrine is based on the
maxim, Equity look at as it is done which ought to have been done. Basically the doctrine says that the
transferor or any person claiming under him shall be debarred from enforcing against the transferee and the
person 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 term of the contract. Definition The doctrine of
part performance is enshrined in the provisions of The Transfer of Property Act, 1882. Section 53-A of the
Act, deals with definition of the doctrine and it says: When any person contracts to transfer for consideration
any immovable 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 where there is an instrument of transfer, that the transfer has not been completed
in the manner prescribed therefore by the law 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.
Illustration: A contract to transfer his immovable property to B by way of sale and put B in possession of the
property before a
regular Sale-Deed is executed. The contract is said to be partly performed and if later on A refuses to execute
regular document of sale and files a suit for eviction against B treating B as trespasser. Then B can resist A’s
claim on the ground that the contract of transfer in his favour has partly been performed and that A should
not be allowed to go back upon his own word. Ingredients of Section 53-A Bombay High Court in
Kamalabai Laxman Pathak v. Onkar Parsharam Patil[1], has given emphasis on the ingredients of the
Section 53-A which are as follows: Contract for Transfer of immovable property: For the application of this
section, the first condition is that there must be a contract and the contract must be transfer of immovable
property for value. a) Written contract: The contract must be written. Section 53 –A is not applicable if the
contract for transfer is oral. In V.R. Sudhakara Rao v. T.V. Kameswari[2], it was held that the benefit of
section 53-A is not available to a person who is in possession of property based on oral agreement of sale.
Writing alone is not sufficient. The contract must also be duly executed. That is to say, it should be signed by
the transferor or by any other person on his behalf. b) Valid Contract: It may be noted that Section 53-A is
applicable only where contract for the transfer is valid in all respects. It must be an agreement enforceable
by law under the Indian Contract Act, 1872. c) Immovable property: This section is applicable only in case
of transfer of immovable property. It does not apply to an agreement for the transfer of movable property
even though supported with consideration. The defense of Part Performance is not available in respect of
possession of movables (Hameed v. Jayabharat Credit & Investment Co. Ltd and Ors.[3]) Transfer for
consideration: The written contract must be for the transfer of an immovable property for consideration. The
written contract on the basis of which the property has been possessed, must clearly suggest the transfer of
property. If the document is ambiguous or confusing, this section cannot be made applicable. It is one of the
necessary ingredients of section 53-A that the terms of written contract must be ascertainable with
reasonable certainty (Hamida v. Humer and Ors.[4]). Possession in furtherance of Contract: The Transferee
has taken possession 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 Beevi[5]). 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. Phoolchand[6]). 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 Govind[7]) Scope of Doctrine of Part Performance The Doctrine of Part Performance is
applicable to only written and valid contract. It is not applicable to oral or void agreement. The contract
must be in writing and signed by the transferor. The transferee has taken possession of the property as a part
performance of a contract and transferee must be ready and willing to perform his part of promise. This
section is applicable not only to the contract of sale but it is applicable to all such contracts of transfer for
consideration. It has been held in (Jacobs Private Limited vs. Thomas Jacob [8]) that the doctrine is intended
to be used as a shield, not a sword. Amendments to Section 53-A of Transfer of Property Act, 1882
(hereinafter called as T.P. Act) An amendment has been made in Section 53-A of Transfer of Property Act by
the Registration and other related laws and Act (48 of 2001). This Amending Act (48 of 2001) has made
following changes in section 53-A: Section Amendment Section 17 Sub Section 1 A of Registration Act
inserted: The documents containing contract to transfer for consideration, any immovable property for the
purpose of Scetion 53-A of Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been
executed on or after the commencement of the Registration and other Related Laws (Amendment) Act, 2001
and if such documents are not registered on or after such commencement then, they shall have no effect for
the purposes of the said section 53-A Section 49 Section 49 of Registration Act, in the proviso; words,
figures and letters as evidence of part performance of a contract for the purposes of Section 53-A of T.P. Act,
1882 (4 OF 1882), shall be Omitted. Section 53-A para 4 In Section 53-A, para no. 4 of T.P. Act, the words
the contract, though required to be registered, has not been registered, or, Omitted. The provisions of this
Amending Act (Act of 48 of 2001) came into force with effect from 24-September-2001. This Amendment
Act is not retrospective. Legal Effect of the Amending Act (48 of 2001) in Section 53-A: In para fourth of
Section 53-A of T.P. Act, the words the contract, though required to be registered, has not been registered has
now been omitted. This may mean to suggest that non registration of any contract to transfer for
consideration is not any relevant factor (i.e. not necessary) for the application of part performance under this
section; and, the defense of part performance is available also on the basis of an unregistered document. But
this is not the case. 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 Act. In nutshell, the amendments of section 17 and section 49 of
Registration Act has now incorporated the law which fulfills the real purpose of amending Section 53-A of
the T.P. Act. The object or the real purpose of these amendments (Amending Act 48 of 2001) is that there
should not be any perpetual possession of an immovable evading the law of registration. Accordingly,
section 53-A of the T.P. Act now insists upon proof of some acts having being done in furtherance of
contract. There must be real nexus between ‘contract’ and the ‘acts done in pursuance or furtherance
thereof’. Conclusion: Thus, the doctrine of part performance is an equitable doctrine. It is incorporated to
prevent fraud from taking advantage on account of non-registration of the document. It is based on the
doctrine: Equity looks at the intention rather than form. End-Notes: AIR 1995 Bom 113 (2007) 6 SCC 650
AIR 1986 Ker 206 AIR 1992 All. 346) AIR 1990 Ker. 186 AIR 1970 SC 546 AIR 1982 SC 989 AIR 1995
Ker 249 Written By Tejas V. Bhogaonkar Law Article in India Please Drop Your Comments Ask A Lawyers
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Copyright Act (Govt of India) © 2000-2023 ISBN No: 978-81-928510-0-6 regular Sale-Deed is executed.
The contract is said to be partly performed and if later on A refuses to execute regular document of sale and
files a suit for eviction against B treating B as trespasser. Then B can resist A’s claim on the ground that the
contract of transfer in his favour has partly been performed and that A should not be allowed to go back
upon his own word. Ingredients of Section 53-A Bombay High Court in Kamalabai Laxman Pathak v. Onkar
Parsharam Patil[1], has given emphasis on the ingredients of the Section 53-A which are as follows:
Contract for Transfer of immovable property: For the application of this section, the first condition is that
there must be a contract and the contract must be transfer of immovable property for value. a) Written
contract: The contract must be written. Section 53 –A is not applicable if the contract for transfer is oral. In
V.R. Sudhakara Rao v. T.V. Kameswari[2], it was held that the benefit of section 53-A is not available to a
person who is in possession of property based on oral agreement of sale. Writing alone is not sufficient. The
contract must also be duly executed. That is to say, it should be signed by the transferor or by any other
person on his behalf. b) Valid Contract: It may be noted that Section 53-A is applicable only where contract
for the transfer is valid in all respects. It must be an agreement enforceable by law under the Indian Contract
Act, 1872. c) Immovable property: This section is applicable only in case of transfer of immovable property.
It does not apply to an agreement for the transfer of movable property even though supported with
consideration. The defense of Part Performance is not available in respect of possession of movables
(Hameed v. Jayabharat Credit & Investment Co. Ltd and Ors.[3]) Transfer for consideration: The written
contract must be for the transfer of an immovable property for consideration. The written contract on the
basis of which the property has been possessed, must clearly suggest the transfer of property. If the
document is ambiguous or confusing, this section cannot be made applicable. It is one of the necessary
ingredients of section 53-A that the terms of written contract must be ascertainable with reasonable certainty
(Hamida v. Humer and Ors.[4]). Possession in furtherance of Contract: The Transferee has taken possession
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 Beevi[5]). 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. Phoolchand[6]). 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 Govind[7]) Scope of Doctrine of Part Performance The Doctrine of Part Performance is
applicable to only written and valid contract. It is not applicable to oral or void agreement. The contract
must be in writing and signed by the transferor. The transferee has taken possession of the property as a part
performance of a contract and transferee must be ready and willing to perform his part of promise. This
section is applicable not only to the contract of sale but it is applicable to all such contracts of transfer for
consideration. It has been held in (Jacobs Private Limited vs. Thomas Jacob [8]) that the doctrine is intended
to be used as a shield, not a sword. Amendments to Section 53-A of Transfer of Property Act, 1882
(hereinafter called as T.P. Act) An amendment has been made in Section 53-A of Transfer of Property Act by
the Registration and other related laws and Act (48 of 2001). This Amending Act (48 of 2001) has made
following changes in section 53-A: Section Amendment Section 17 Sub Section 1 A of Registration Act
inserted: The documents containing contract to transfer for consideration, any immovable property for the
purpose of Scetion 53-A of Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been
executed on or after the commencement of the Registration and other Related Laws (Amendment) Act, 2001
and if such documents are not registered on or after such commencement then, they shall have no effect for
the purposes of the said section 53-A Section 49 Section 49 of Registration Act, in the proviso; words,
figures and letters as evidence of part performance of a contract for the purposes of Section 53-A of T.P. Act,
1882 (4 OF 1882), shall be Omitted. Section 53-A para 4 In Section 53-A, para no. 4 of T.P. Act, the words
the contract, though required to be registered, has not been registered, or, Omitted. The provisions of this
Amending Act (Act of 48 of 2001) came into force with effect from 24-September-2001. This Amendment
Act is not retrospective. Legal Effect of the Amending Act (48 of 2001) in Section 53-A: In para fourth of
Section 53-A of T.P. Act, the words the contract, though required to be registered, has not been registered has
now been omitted. This may mean to suggest that non registration of any contract to transfer for
consideration is not any relevant factor (i.e. not necessary) for the application of part performance under this
section; and, the defense of part performance is available also on the basis of an unregistered document. But
this is not the case. 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 Act. In nutshell, the amendments of section 17 and section 49 of
Registration Act has now incorporated the law which fulfills the real purpose of amending Section 53-A of
the T.P. Act. The object or the real purpose of these amendments (Amending Act 48 of 2001) is that there
should not be any perpetual possession of an immovable evading the law of registration. Accordingly,
section 53-A of the T.P. Act now insists upon proof of some acts having being done in furtherance of
contract. There must be real nexus between ‘contract’ and the ‘acts done in pursuance or furtherance
thereof’. Conclusion: Thus, the doctrine of part performance is an equitable doctrine. It is incorporated to
prevent fraud from taking advantage on account of non-registration of the document. It is based on the
doctrine: Equity looks at the intention rather than form. End-Notes: AIR 1995 Bom 113 (2007) 6 SCC 650
AIR 1986 Ker 206 AIR 1992 All. 346) AIR 1990 Ker. 186 AIR 1970 SC 546 AIR 1982 SC 989 AIR 1995
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Copyright Act (Govt of India) © 2000-2023 ISBN No: 978-81-928510-0-6 Doctrine of Part Performance is
an equitable doctrine and it is incorporated to prevent fraud and from taking illegal advantage on account of
non-registration of the document. This Doctrine is based on the maxim, Equity look at as it is done which
ought to have been done. Basically the doctrine says that the transferor or any person claiming under him
shall be debarred from enforcing against the transferee and the person 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 term of the contract. Definition The doctrine of part performance is enshrined in
the provisions of The Transfer of Property Act, 1882. Section 53-A of the Act, deals with definition of the
doctrine and it says: When any person contracts to transfer for consideration any immovable 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 where
there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore
by the law 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. Illustration: A contract to transfer his immovable
property to B by way of sale and put B in possession of the property before a Doctrine of Part Performance
is an equitable doctrine and it is incorporated to prevent fraud and from taking illegal advantage on account
of non-registration of the document. This Doctrine is based on the maxim, Equity look at as it is done which
ought to have been done. Basically the doctrine says that the transferor or any person claiming under him
shall be debarred from enforcing against the transferee and the person 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 term of the contract. Definition The doctrine of part performance is enshrined in
the provisions of The Transfer of Property Act, 1882. Section 53-A of the Act, deals with definition of the
doctrine and it says: When any person contracts to transfer for consideration any immovable 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 where
there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore
by the law 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. Illustration: A contract to transfer his immovable
property to B by way of sale and put B in possession of the prope.

Doctrine of Part Performance of Contract is contained in Section 53-A of the Transfer of Property Act, 1882
(hereinafter referred to as ‘TPA’). Section 53-A of the TPA was added to the statute book in the year 1929
and is a modified form of the equity principle of part performance which got developed in England in the case
of: Elizabeth Maddison V/s John Alderson, (1883) 8 App. Cases 467. The following postulates are sine qua
non for basing a claim on Section 53-A of the TPA:

1. There must be a contract to transfer for consideration any immovable property.

2. The contract must be in writing signed by the transferor, or by someone on his behalf.
 3. The writing must be in such words from which the terms necessary to construe the transfer can be
ascertained.

4. The transferee must in part performance of the contract take possession of the property, or, of any
part thereof.

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

6. The transferee must have performed or be willing to perform his part of the contract.
It is settled law that Section 53-A of the TPA confers no right on a party who was not willing to perform his
part of the contract. A transferee has to prove that he was honestly ready and willing to perform his part under
the contract.

In the matter of: WG. CDR. (Retd.) Sh. Yeshvir Singh Tomar V/s Dr. O.P. Kohli & Ors, CS (OS) No.
2128/2015, High Court of Delhi, Date of Decision: 03.08.2015 (Coram: Valmiki Mehta, J.), it was held that:

That by virtue of the amendment brought about to Section 53-A of the TPA with effect from 24.09.2001 by
the Act 48 of 2001, an Agreement to Sell in the nature of part performance cannot create rights unless the
agreement is registered and stamped at 90 percent of the duty as of the sale deed as per Article 23-A of the
Schedule I of the Indian Stamp Act, 1899 as applicable to Delhi which was accordingly amended by the Act
48 of 2001.

A power of attorney which effectively gives ownership rights of a property by allowing the attorney to sell
the immovable property by virtue of Article 48 (f) of the Indian Stamp Act as applicable to Delhi will have to
have the stamp duty as a conveyance deed as per Article 23 of the Indian Stamp Act for the amount of
consideration.

Summarizing the position of law, the Hon’ble High Court of Delhi ruled as under:

“…7. In view of the aforesaid settled position of law, this suit is not maintainable by virtue of Section 53-
A of the Transfer of Property Act read with the amended Article 23-A of the Indian Stamp Act as
applicable to Delhi as the Agreement to Sell is unregistered and unstamped and the Power of Attorney
besides not entailing the plaintiff to indirectly achieve what cannot be directly achieved is also not
stamped on the value of the conveyance deed as required by Article 48 (f) of the Indian Stamp Act as
applicable to Delhi…”

It is important to note that Article 48 (f) of the Indian Stamp Act as applicable to Delhi states that power of
attorney, when given for consideration and authorizing the attorney to sell any immoveable property, the
proper stamp duty to be paid, is the stamp duty as levied on conveyance deed for the amount of consideration.
Therefore, the necessary corollary is that, if a power of attorney is executed by X in favour of Y, and X and
Y, both are relatives and the purpose of execution of the power of attorney is grant of authority by X to Y to
sell of property owned by X. The contents of Article 48 (f) of the Indian Stamp Act as applicable to Delhi
would not be applicable because here the power of attorney is not executed for consideration, X and Y being
relatives. So, here the power of attorney needs to be stamped at Rs. 50/- only as per the Indian Stamp Act as
applicable to Delhi.