PART PERFORMANCE
SECTiON 53A
Evolution
The concept of doctrine of part performance has taken from England
the English law and is applicable to Indian Cases.
The doctrine of part performance is inserted by the Transfer of
Property (Amendment) Act, 1929 and is based on the equitable doctrine
of part performance in English law which is known as equity of part
performance.
After the Mohammed Musa V. Aghore Kumar Ganguli (1914) 42 Cal. 801,
the privy council held that equity of part performance could be
applied to Indian cases. Before 1929, the English part performance
was neither certain nor uniform and in other cases it was not applied
Law prior to 1929
Mohd. Musa v. [Link] 42 Cal. 801 PC: In this
case, a razinama, recorded a compromise by
which certain mortgaged properties were divided
between the mortgagor and the mortgagee. Under
the compromise the mortgagee released his
mortgage right in respect of the property retained
by the mortgagor who undertook to execute a
conveyance in regard to the property allotted to
the mortgagee.
Law prior to 1929
The razinama was not registered. Later no conveyance
was executed by the mortgagor, but a conveyance was not
necessary at that time according to law in force.
The razinama was otherwise fully acted upon. About 40
years later, the representatives of mortgagor sued for
redemption on the ground that that the unregistered
razinama could not extinguish the mortgage and that in the
absence of a conveyance by the mortgagor, the
mortgagee’s rights could not be enlarged
Law prior to 1929
The Court while dismissing the suit held that a written conveyance was
not required according to the law then in force.
Later the question arose in Ariff v. jadunath 58 Cal 1235 where the
defendant took possession of piece of land under a verbal agreement
of 1913 for the grant to him by the plaintiff of a permanent lease of the
property at a fixed rent. In 1925, he filed a suit for ejectment after
serving upon the defendant a notice to quit treating him as a monthly
tenant.
Here, relying on the judgment of its own, Calcutta High Court
dismissed the suit, but the decision was distinguished by the Privy
Council in appeal, it admitted the appeal in the favour of the plaintiff as
now the registration of such a deed was required by the application of
law of registration.
Meaning
The doctrine of part performance is a equitable doctrine.
It means the transferee performed the contract partly by taking of the
possession or any part thereof, ready to perform the contract wholly but
the transferor refused to perform the contract.
Therefore, the readiness and willingness to perform the contract is
necessary for the applicability of this doctrine.
In such circumstances, the part performance by the transferee is
assumed to be done which ought to have been done.
In these cases, the aggrieved party may be the plaintiff or the defendant.
When the performance has been done partly, the transferor cannot be
estopped from the obligation contracted to perform.
On 2001 amendment, the word registered in omitted and the doctrine of
part performance is applicable even to the unregistered of document
and it is not retrospective.
Sec.53-A of the Transfer of Property Act, 1882 states
that where any person contract to transfer immovable
property for consideration in writing by the transferor
or on his behalf from which the term necessary to
constitute the transfer can be ascertained with
reasonable certainty and the transferee has performed
the part performance of the contract and has done act
in furtherance of the contract then notwithstanding,
there is an instrument of transfer which is not
completed in the prescribed manner by the law in force,
the transferor or any other person cannot claimed
against the transferee who has taken possession or
continued in possession other than a right expressly
provided by the terms of contract.
Essentials
There must be the valid contract between the
parties to the contract to transfer any
immovable property.
The contract must be made for consideration of
any immovable property.
The contract must be in writing and the terms of
conditions must be ascertain.
The transferee must partly perform the contract
by taking possession or any other part.
The transferee must be done some act in
furtherance of the contract.
The transferee must be performed or willing to
perform his part of the contract
COMPARISON OF ENGLISH & INDIAN LAW
OF PART-PERFORMANCE
ENGLISH LAW INDIAN LAW
The part performance of the For the applicability of part
contract is not required to be performance, the contract is
writing or signed by the transferor. required to be in writing and signed
by the parties.
It is an equitable right and can be
used to enforce the right and to It is a statutory right and is used
defend the possession of the only to defend the possession of
transferee which created title in the transferee. It does not create
the transferee title to the transferee.
Example
A and B enter into an agreement for the sale of
A’s house for a consideration of Rs. 10,00,000/-. A
executes an agreement for sale of property. B
pays the advance amount of rupees five lakhs and
as per the terms and conditions agreed upon as
between the parties, the rest of the money is to be
paid to A by B at the time of the delivery of
possession of property. A delivers the possession
and B pays the rest of the amount
However, the transfer in favour of B is
not complete as it merely an
agreement to sell and is not a sale
deed. After around a month, A wants
to give back the amount already paid
by B to him as he has got a better
offer for the same property from C
and wants B to vacate the possession.
B refuses, and upon his refusal, A
files a suit for eviction with a prayer
to the court that possession of the
property be delivered to him.
Here B raises the defense of
retention of the possession
under the doctrine of part
performance of the contract
under section 53-A. A would
not be able to get back the
possession of the property as
the possession of the same
was delivered to B in
furtherance of Contract.
EXCEPTION
Provision includes a
proviso that states that
the rights of a transferee
who has no notice of the
contract or part
performance are not
affected by Section 53A.
SECTION 53A : A DEFENSIVE SHIELD
The transferee typically invokes Section 53A of the Act as
a defence and a shield to safeguard and protect their
possession of the property.
The judgment in Delhi Motor Co. and Ors. VS. U.A.
Basrurkar and Ors. (1968) says that it can only be used as
a defence by the transferee; he or she neither can use the
Section to their advantage and claim possession nor does
it grant the transferee any rights that they can seek
against the transferor. The transferee is not permitted to
assert a claim on his own behalf, indicating that he is not
permitted to request a title on the grounds that all the
ingredients of Section 53A were met.
CAN WE GRANT INJUNCTION UNDER
SECTION 53A ?
No , In a suit for specific performance of an agreement of
sale, injunction cannot be granted on the basis of sec.53-A
of the Transfer of Property Act 1882.
Relief of injunction cannot be granted when plaintiff has
not shown his readiness and willingness to perform his
part of contract.
In a suit for specific performance of agreement of sale
interim injunction can be granted defendant basis on 53-A
of the Transfer of Property Act.
Nathulal V. Phoolchand, 1969 SCC 3 120.
Nathulal entered into a written contract with Phoolchand to sell his ginning
factory and the associated agricultural land for a total consideration of Rs
43,011. Phoolchand paid Rs 22,011 as partial payment and took possession of
the property, agreeing to pay the remaining Rs 21,000 by May 7, 1951.
Phoolchand failed to make the balance payment by the stipulated date.
Consequently, Nathulal rescinded the contract and sought possession of the
property along with mesne profits in the District Court, which ruled in his
favor. However, the High Court of Madhya Pradesh reversed this decision,
allowing Phoolchand to retain possession and set terms for the repayment of
the outstanding amount. Nathulal appealed to the Supreme Court, which
ultimately dismissed the appeal, siding with Phoolchand. The Supreme Court
held that Phoolchand was entitled to the defense of part performance, as he
had fulfilled his obligations under the contract and was willing to perform
further, while Nathulal had not fulfilled his prerequisites for the transfer.
LEGAL REASONING OF THE CASE
The Supreme Court's legal reasoning centered on the doctrine of part performance as
outlined in Section 53-A of the Transfer of Property Act, 1882. The court evaluated
whether Phoolchand had fulfilled the necessary conditions to invoke this doctrine,
which would protect him from eviction despite the absence of a formal sale deed.
Existence of a Written Contract: The court affirmed that there was a valid written
contract that stipulated the sale of immovable property for consideration, with
terms clear enough to ascertain the intentions of both parties.
Possession in Part Performance: Phoolchand had taken possession of the property
and made partial payment, indicating his adherence to the contract's terms.
Willingness to Perform: Phoolchand demonstrated his readiness to fulfill his
contractual obligation by arranging funds for the balance payment, countering
Nathulal's contention of his unwillingness.
Implied Conditions: The court recognized that Nathulal had specific obligations,
such as securing the necessary governmental sanction under Section 70(4) of the
Madhya Bharat Land Revenue and Tenancy Act, 1950. Nathulal's failure to fulfill
these conditions justified the dismissal of his appeal.
JOGINDER TULI VS. STATE NCT OF DELHI
AND ORS. (2022)
Hon’ble Delhi High Court held in the case of
Joginder Tuli v. State NCT of Delhi and Ors (2022)
that the issue of whether the transferee can
receive benefits under Section 53A of the Act,
even if he has no registered documents to support
his claims. It was held that Unregistered
Document Can’t be relied to protect possession of
party
Sardar Govindrao Mahadik And Another V.
Devi Sahai And Others, 1982 SCC 1 237.
Section53-A requires that the person claiming the
benefit of part performance must always be
shown to be ready and willing to perform his part
of the contract. And if it is shown that he was not
ready and willing to perform his part of the
contract he will not qualify for the protection of
the doctrine of part performance
Shrimant Shamrao Suryavanshi And
Another v. Pralhad Bhairoba, 2002 AIR SC
960
The Limitation Act does not extinguish a defence, but only
bars the remedy. Since the period of limitation bars a suit
for specific performance of a contract, if brought after the
period of limitation, it is open to a defendant in a suit for
recovery of possession brought by a transferor to take a
plea in defence of part-performance of the contract to
protect his possession, though he may not be able to
enforce that right through a suit or action.
Mool Chand Bakhru And Another v. Rohan And
Others, 2002 SCC 2 612
Section 53-A provides that where 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 he is entitled to protect his possession in respect of
the property of which he was put in possession in part-
performance of the agreement to sell.
D.S Parvathamma v. A. Srinivasan, 2003
AIR SC 3542
The essential features of the equitable doctrine of part-performance
as statutorily modified and incorporated in Section 53-A abovesaid, to
the extent relevant for the purposes of this case, are:
1. that 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,
2. that the transferee has performed or is willing to perform his part of
the contract,
3. that the plea of part-performance is not available to be raised against a
transferee for consideration who has no notice of the contract or of
the part- performance thereof.
Union of India V. M/s. K.C. Sharma & Co.,
Civil Appeal No. 9049 - 9053 of 2011
It is a landmark judgment addressing the issue of whether
the bona fide transferee can be protected under Section
53A of the Act, even if he has no registered documents to
support his claims. The Supreme Court rightly gave its
decision by saying that the registered deeds are not
required to receive the safeguards under Section 53A, and
when the transferee has possession and has done some
acts in furtherance of the contract, he will be recognized
as the owner or lessee, as the case may be.