A STUDY ON THE RULE OF PART PERFORMANCE

Submitted by Karan Khola

SM0113023

Faculty In-charge

Ms. Kasturi Gakul

Mr. Saheb Chowdhury

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

31ST October, 2015

TABLE OF CONTENT

1. INTRODUCTION
1.1 Research Objectives
1.2 Literature Review
1.3 Research Methodology
2. Development of Doctrine of Part Performance.
2.1 Under English Law
2.2 Under Transfer of Property Act 1882
2.3 Applicability of the Doctrine with reference to the Type of Property
3.

Doctrine of Part Performance

3.1 Section 53A of Transfer of Property Act 1882
3.2 Distinction between English and Indian Law Relating to Doctrine of Part
Performance

4. Mandatory Requirements for the Application of the Doctrine of Part

Performance
4.1 Immovable Property
4.2 Written Contract
4.3 Consideration (Nature of words in the Contract)
4.4 Part Performance by the Transferee
4.5 Act Done by the Transferee in Furtherance of Contract
4.6 Willingness of the Transferee to perform his Part of Contract

5.

Conclusion
BIBLIOGRAPHY

1. INTRODUCTION

The Doctrine of Past Performance, based on principle of equity, developed in England and
was subsequently added to the Transfer of Property Act, 1882 via the Amendment Act of
1929. 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.

Section 53A says that if a person makes a agreement with another and lets the other person
act on the behalf of the contract; such a person creates an equity himself that cannot be
resisted on the mere grounds of absence of formality in the evidence or contract of such a
transfer. Thus, if the contract has not been registered or completed in the prescribed manner,
the transferor can still not go against the transferee or anyone claiming under him. However,
the deed should not be unsigned or unstamped. Nothing in this section affects the rights of a
transferee for consideration even if he had no notice of contract of part performance.

Illustration: A contracts with B to sell his plot for X amount of money. A accepts the advance
from B towards the sale of the plot and hands over the possession of the said plot to B. After
some time, B is ready to pay the remaining sale amount but A refuses to accept the same.
Further A asks B to hand over the plot back to him.

Here B is ready to perform his part of the contract but A is not. In such a case, B can bring a
case requiring specific performance from A. It does not matter that the sale was not
registered.

1.1 Research Objective

To understand the difference between Doctrine of Part Performance under English Law
and Indian Law.
To understand the applicability of Section 53A of Transfer of Property Act

1.2 Literature Review

Dr Poonam Pradhan Saxena, Property Law, 2 nd Edn , Lexisnexis
This book has provided the researcher with the concept of Doctrine of Part Performance
under English Law and Indian Law. The book also deals with the detailed provision of Part
Performance with in Transfer of Property Act. It has also supplemented the researcher with
various case laws which made the provision of law clear.

1.3 Research Methodology

For the completion of the project the doctrinal method has been used where it will be
concerned with the documental research, as the library was the only source of information put
to use. Internet source also provided substantive information. Certain judgements have also
been used to substantiate the arguments.

2. Development of Doctrine of Part Performance.

2.1 Under English Law

WALSH vs. LONGSDALE and MADDISON vs. ALDERSON 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. ALDERSON 1888

B was As 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 vs. LONGSDALE 1882 21 Ch d 9

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 years 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.

Prior to the enactment of the Transfer of Property Act, 1882, the English law of Part
Performance was applied. Before Section 53A was inserted in the Transfer of Property Act,
1882, there were different views upon such application. After the Transfer of Property Act,
1882 came into force some thought that Sections 54 and 59 which required registered
documents were necessary for sale of immovable property or regarding mortgage
respectively. While others argued that requiring strict compliance would be detrimental to the
rights of the impoverished masses of India who could be duped by scrupulous individuals
taking advantage of the law.

The Privy Council in MOHD MUSA vs. AGHOR KUMAR GANGULI AIR 1914 PC 27
(30) held that doctrine of part performance is applicable in India. 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.

2.2

Under Transfer of Property Act 1882

When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the
absence of Section 53-A, there arose difference of opinion between various courts in India as
regards the application of English doctrine of part performance of contract as it was then
prevailing in England. Since there was a difference of opinion on question of the application
of English equitable doctrine of part performance in various courts of India, the Govt. of
India resolved to set up a Special Committee for making recommendations amongst others
whether the British equitable doctrine of part performance is extended in India also. The
Special Committee was of the view that an illiterate or ignorant buyer who had partly
performed his part of contract required statutory protection. The Committee was of the
further view that where a transferee in good faith that lawful instrument i.e. a written contract
would be executed by the transferor takes possession over the property, the equity demanded

that the transferee should not be treated as trespasser by the transferor and subsequently evict
him through process of law in the absence of lawful transfer instrument. The Special
Committee also considered the question whether protection under the proposed Section 53-A
to a transferee would also be available even if the period of limitation for bringing an action
for specific performance of an agreement to sell has expired. On the said question, the
Committee was of the view that even after expiry of period of limitation, the relationship
between the transferor and transferee remains the same as it was within the period of
limitation and, therefore, the possession over the property taken in part performance of an
agreement is required to be protected even if the period of limitation for bringing an action
for specific performance has expired.

The aforesaid recommendation of the Special Committee were accepted by the Govt. of India
as the same is well reflected in the aims and objects of amending Act 1929 whereby Section
53-A was inserted in the Act.

The Special Committee's report which is reflected in the aims and objects of amending Act
1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a
transferee who in part performance of the contract had taken possession of the property even
if the limitation to bring a suit for specific performance has expired. In that view of the
matter, Section 53-A is required to be interpreted in the light of the recommendation of
Special Committee's report and aims, objects contained in amending Act 1929 of the Act and
specially when Section 53-A itself does not put any restriction to plea taken in defence by a
transferee to protect his possession under Section 53-A even if the period of limitation to
bring a suit for specific performance has expired.

3. Doctrine of Part Performance

The Doctrine of Past Performance, based on principle of equity, developed in England and
was subsequently added to the Transfer of Property Act, 1882 via the Amendment Act of
1929. 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 feet1.
Section 53A says that if a person makes a agreement with another and lets the other person
act on the behalf of the contract; such a person creates an equity himself that cannot be
resisted on the mere grounds of absence of formality in the evidence or contract of such a
transfer. Thus, if the contract has not been registered or completed in the prescribed manner,
the transferor can still not go against the transferee or anyone claiming under him. However,
the deed should not be unsigned or unstamped. Nothing in this section affects the rights of a
transferee for consideration even if he had no notice of contract of part performance2.
Illustration: A contracts with B to sell his plot for X amount of money. A accepts the advance
from B towards the sale of the plot and hands over the possession of the said plot to B. After
some time, B is ready to pay the remaining sale amount but A refuses to accept the same.
Further A asks B to hand over the plot back to him.
Here B is ready to perform his part of the contract but A is not. In such a case, B can bring a
case requiring specific performance from A. It does not matter that the sale was not
registered.
As per law, a transfer of immovable property valued over Rs. 100 has to be registered. But it
was believed that strict compliance may lead to extreme hardships especially where one party
has already performed his part in the confidence that the other party will honor the
agreement. If such registration or other formalities have not taken place, the doctrine of part
performance will be applicable. If such a transferee takes possession of the property, he
cannot be evicted due to an unregistered contract.

1 Sanjeeva Row, Transfer of Property Act, (Vol. 1, edition, 2012, Universal Law Publishers) 561
2 Ibid

The section is a defence as well as a right that helps protect the possession against any
challenge. It tries to prevent fraud on the mere basis of ineffective evidence of the transfer.
The section does not confer a title upon the transferee in possession but it imposes a statutory
bar on the transferor.

3.1 Distinction between English and Indian Law Relating to Doctrine of Part
Performance

The English Law of Part Performance

1) The contract need not be written or signed by the transferor
2 The right under the doctrine is an equitable right
3) It can be used for enforcing the right as well as defending the right; and
4) It creates a title in the transferee.

The Indian Law of Part Performance

1) Section 53A deals with the Doctrine and state that the contract has to be written as well as
signed by the transferor
2) It is a statutory right;
3) It can only be used to defend the possession of the transferee; and

4) It does not create a title in the transferee3.

After 2001 amendment to Section 53A, the application of the section has seen dilution it no
longer serves as a substitute for registration. It should still hold good for defects other than
registration. But, registration of sale of immovable property is compulsory and Section 53A
has been amended to incorporate the same

Srimant Shamrao Suryavanshi and Anr. V. Prahlad Bhairoba Suryavanshi4,

FACTS: In the present case, the respondents executed an agreement of sale of an agricultural

land in favour of the appellant. The appellants in pursuance of the agreement got the
possession of the property. After the execution of the agreement, the appellant came to know
that the respondent is negotiating for sale with another respondent for which the appellant
filed a suit. The appellant filed for injunction and an injunction order was passed in favour of
the appellant, yet the respondent sold the land through a registered sale deed. The transferee
did not bring any suit within the limitation period for specific relief.
ISSUE: Whether the appellant can defend his possession over the land by way of Part
Performance under Transfer of Property Act even after the suit for specific performance for a
contract to sale is barred by limitation?
HELD: Even if the limitation period was over, a person can obtain possession of property in
part performance of a contract to sale; the transferee can defend his possession in case filed
by the transferor. but this can only be done is the transferee can well prove that he has done
some act in furtherance of the agreement or the contract or is willing to perform his part of
the act in furtherance of the contract. This was interpreted so as there was not expressly said
3 Transfer of Property Act,1882
4 (2002) 3 SCC 676

that the plea of part performance cannot be taken once the time limit for filing a suit for
specific performance is expired.
In this case, all the requirements of Part Performance were complied with and the transferee
was able to prove that he was willing to perform his part of the contract which fulfils the
essential of performing some act in furtherance of a contract, either in taken possession or in
continued possession of the property.
The court in this case allowed the appeal as it was not disputed that the appellants were
willing to perform their part of the contract.
The court in this case has rightly applied the doctrine. Here the appellant was able to prove
the willingness to perform his part of the contract which is an important essential. Since,
along with this requirement all other requirements were also proved. Hence, it was the right
of the appellant to have the defence of the doctrine which the court provided.

Serandaya Pillai v. Sankaralingam Pillai5,

FACTS: A contract was entered into by the plaintiffs and the first and the second defendant to
transfer an immovable property to the first defendant and that the first defendant, in
consideration of the said contract so made for transfer of property, shall marry the second
defendant. The said contract was made orally. The defendants were given the possession of
the said property and the Kist to be given was filed in the name of the second defendant for
the years 1948 and 1949.

Later the plaintiffs claimed back the said property saying that the gift was invalid as it was
contrary to the Section 123 of the Transfer of Property Act and Section 17 of the Registration
Act.

ISSUE: Whether the defendants can take the defence of Part Performance under Section 53A
of the Act in the given case and circumstances?
5 (1959) 2 Mad LJ 502 (506)

HELD: It was said in the judgment that as per the section, gift, along with sale, lease,
mortgage and exchange require a written contract to take place and that the contract should
be for a consideration. Clearly, there involves a consideration to be given for the property in a
contract to sale, lease, mortgage, exchange and a gift.

The present act makes writing of the contract necessary for the property of value of Rs. 100
or more as per Section 54 of the Act for the purpose of sale, in case of simple and other
mortgages, a sum of Rs. 100 or above is required to be deposited as per Section 59, in case of
lease extending one year as per Section 107 of the Act, exchanges under Section 118 and
under Section 123 of the Act in case of gifts.

In the present case, the promise to marriage was a consideration for the transfer of property
which was taken as a consideration but since, the there only took place an oral transaction
between the parties and not the contract in writing, thus, it falls within the ambit of Section 9
of the Act. Thus, it is neither a sale nor a mortgage, lease, exchange or a gift. Hence, the
present case could not be said to fall within the ambit of Section 53A of the Act.

Govindrao Mahadik v. Devi Sahai6,

The mortgagee in this case failed to prove that he did any act in furtherance of the contract or
that the mortgagee was willing to perform his part of the contract either of which is an
essential to prove the case in favour.

The Court held that the mortgagee was not entitled to the benefit under Section 53A and that
he could not possess that property.

6 AIR 1982 SC 989

FACTS: The original Plaintiff 1, Sardar Govendrao Mahadik (Mortgagor), mortgaged a

property to sole defendant Devi Sahai (Mortgagee) at some rate of interest annually. The
mortgage was a mortgage with possession. The mortgagor on Oct. 5, 1945 served a notice to
the defendant to show the full accounts of the mortgage, of which the mortgagee failed to
provide. Subsequently, some negotiations took place between the two and the property was
sold to the mortgagee but the sale deed for the same could never be registered. On the other
hand, the mortgagor sold the property to the Plaintiff 2, Gyarsilal (Subsequent purchaser) via
a registered sale deed. Thereafter, both the plaintiffs filed a suit against the defendant for the
redemption of the property. The mortgagee at that time was already in possession of the
property.

ISSUE: Can the mortgagee gain the benefit of Section 53A of the Act?

HELD: The Court held that the mortgagee was not entitled to the benefit under Section 53A
and that he could not possess that property. This was due to the fact that the mortgagee could
not prove that he has performed any act or is willing to perform any act in furtherance of the
contract. Since, the mortgagee was already in possession of the property, the mere possession
of the property would render any result to the transferee. He needed to prove something
independent of the mere possession of the property and an act done in furtherance of the
contract, as the court shall not take any the mere act of continuing in possession of the
property as evidence enough to provide the defence to the transferee. The mortgagee could
not prove that he did any act in furtherance of the contract, thus he was held not entitled to
possession over the property.

In this case, the judgment set a good precedent over when the transferee can avail the right
over the property. Mere already in possession of the property is not enough as the person may
be in possession of the property pursuant to any other prior encumbrances. The mere
possession of the property is enough and a strong evidences when the mortgagee or the
transferee is for the first time taking the possession of the property and not when he is already
in possession of the property. Thus, an independent act than a mere possession of property
was required to proved in such case. In the present case, the mortgagee failed to do so

and thus the decision of the court to not to provide him with the defence under
Section 53A of the Act was justified.

S. Parvarthamma v. A. Srinivasan7,
FACTS: The appellant in this case was the rent holder of the property and thereafter he
entered into an agreement with the landlord for the purchase of the property, thereby
becoming a prospective buyer of the property. Since, he was already living in that property or
was in the possession of that property, the landlord-tenancy relationship superseded to the
prospective buyer-seller relationship where the appellant became the buyer in possession of
that property. But the disputed fact remained of the agreement to sell made between the
original landlord and the tenant. The original landlord in 1983 sold the land to the respondent
via a registered sale deed and transferred their right, title and interest in the property to the
respondent including the suit premises. Thus, in this case, the respondent here became the
subsequent transferee and as per the law under Section 53A of the Act, nothing in the section
shall affect the rights of the transferee for consideration who has no notice of the contract or
the part performance thereof. Thus, the respondent being the subsequent transferee has the
right to protect his property rights under the section.

The respondent in this case claimed himself to be the owner-landlord of a property seeking
eviction of the appellant which the respondent claimed that he is the tenant of the said
property, and got eviction by the Rent Controller and the judgment was upheld by the High
Court.

ISSUE: Whether the appellant can exercise the right under Section 53A of the Act?

HELD: The court in this case dismissed the petition on the following grounds:

7 (2003) 4 SCC 705

When the appellant filed a suit for injunction, the suit was dismissed in its entirety. Along
with the suit for injunction dismissed but also the alternative suit filed for specific
performance and monetary relief was also dismissed.
Secondly, he could not prove that he was in possession of the property in part performance of
the contract. When a person who is already in possession of the property enters into a contract
to purchase the property, he in order to protect his benefit as the possessor of that property
must show that he has done some act in furtherance of the contract and that the
act must be effective from that day must be consistent with the contract alleged.

Thirdly, with his suit for specific relief getting dismissed, it could not be said that the he
performed or was willing to perform his part of the contract. This is so as the appellant had
not disowned his character as tenant in the suit premises and that there was no evidence or
findings that the appellant was in possession of the property pursuant to the contract to sale.
Also the appellant did not pursue the matter further.
Fourthly, the respondent who became the subsequent transferee had no notice of contract of
part performance. As stated in Section 53 of the Act, the rights of the transferee are to be
protected and taken care of. In no case can the transferees rights over the property be
affected if he had no prior notice of the contract or the part performance. In this case, the
transferee was a bona fide purchaser and had no notice of the contract to sale of the property.
Thus, the High Court upheld the decision of the Rent Controller and said that the appellant
had no right over the property. The case was held liable to be dismissed and was dismissed by
the High Court.

As per the law, nothing in the Section 53A of the Act shall affect the rights of the transferee,
and and here the Defendant 2 was the subsequent transferee. Hence his rights should be
safeguarded. It has been said that a subsequent transferee can retain the possession of the
property if:

He has paid the whole amount

He has done so in bona fide and had no knowledge of the prior contract.

Since, both the above requirements were met the Court thus was right in saying that the
appellant had no right over the property and safeguarded the rights of the subsequent
transferee.

Babu Murlidhar v. Soudagar Mohammad Abdul Bashir and Anr8,

FACTS: In this case, an unregistered agreement of sale was executed by the mortgager,
Plaintiff in favour of the mortgagee, Defendant who was in possession of the property and
would become the owner of the property if his name could be mutated into the mutation
register of the municipality. The mortgager himself, in furtherance of the agreement to sale
made an application for mutation to municipal authorities and mortgagees name was
registered as the owner of the property.

ISSUE: Can the Mortgagee defendant avail the defence of Part Performance in this case?

HELD: An act should be done by the transferee in furtherance of the contract to transfer of
property in order to avail the defence of part performance.

Since, the mortgagee himself made an application for the mutation of the documents to the
municipal authority and that the mortgagees name was duly registered as the owner of the
property, it was thus an act done in furtherance of the agreement to sale. Since, all the
requirements of the part performance were fulfilled and that it was clear that the mortgagee
had done some act in furtherance of the agreement to sale, thus, the court said that the
mortgagee can avail the defence of part performance.

8 AIR 1970 Kant 203, AIR 1970 Mys 203.

The Court held that this act was sufficient enough to protect the mortgagee under Section
53A of the transfer of property Act, 1882 as there was some act done in furtherance of the
contract to sale which was sufficient enough to put the mortgagee on the protection.

Thus, the court in this case thus, dismissed the petition.

As per the provision, there must be some act done in furtherance of the contract, only then
shall the defence of part performance can be availed. And, in this case, the mortgagee by
filing for the mutation of the documents in his name had done an act, sufficient enough to
prove that the act so done was in furtherance of the contract. Thus, the court by providing him
relief of protecting his right to possession over the property had right done the justice.

4. Mandatory Requirements for the Application of the Doctrine of Part Performance

. In Nathulal v. Phool Chand9, Supreme Court while interpreting Section 53-A culled out the
following conditions to be fulfilled for making out the defence of part performance to an
action in ejectment by the owner, as under:9 1970 2SCR 854

(i) That the transferor has contracted 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
(ii) 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
(iii) That the transferee has done some act in furtherance of the contract and
(iv) That the transferee has performed or is willing to perform his part of the contract.

In Sardar Govindrao Mahadik v. Devi Sahai 10, it was reiterated that to qualify for the
protection of the doctrine of part performance it must be shown that there is an agreement to
transfer of immovable property for consideration and the contract is evidenced by a writing
signed by the person sought to be bound by it and from which the terms necessary to
constitute the transfer can be ascertained with reasonable certainty.

Supreme Court in Rambahu Namdeo Gajre v. Narayan Bapuji,11 held that the doctrine of
part performance aims at protecting the possession of such transferee provided certain
conditions contemplated by Section 53-A are fulfilled
The essential conditions required to be fulfilled for claiming protection of Section 53A of the
Transfer of Property Act are as under: [Rambhau Namdeo Gajrav Narayan Bapuji Dhotra
(2004) 8 Supreme Court Cases 614]
(i) There must be a contract to transfer for consideration any immovable property
Section 53A applies to leases and agreement to lease [Maneklal Mansukhbhai V. Hormusji
Jamshedji Ginwalla & Sons AIR 1950 SC1] where in an action to eject a lessee on the ground
that he had no registered deed of lease executed in his favour the defendant lessee takes the
plea of part performance and proves that there was a written and signed contract of lease in
10 1982 2SCR 186
11 (2004) 8 SCC 614

his favour and that he had taken possession in accordance with the terms of the agreement
and had built a factory on the land and also that he was paying rent to the plaintiffs in
accordance with that agreement the defendant is entitled to retain possession in spite of an
absence of the registered deed.]. Agreement to lease may be evidenced by correspondence.
Section 53A applies to mortgages with possession.
If the agreement is void under any law, section 53A will not protect possession. The
protection of part performance cannot be availed in respect of a transaction which is null and
void. (CIT v. Vithalbhai P. Patel (1999) 236 ITR 1001). Sale ab initio null and void as per
order of Collector in view of Section 4 of Gujarat Vacant Lands in Urban Areas (Prohibition
of Alienation) Act, 1972. order of Collector was not challenged. No transaction of sale in eye
of law. Sale not liable to tax on capital gains.
In case of a agreement conditional on compliance with statute, there is an implied term in the
contract that transferor will apply for requisite permission and the court will direct him to do
so. (Nathulal V. Phoolchand AIR 1970 Supreme Court 546)
(ii) The contract must be in writing, signed by the transferor, or by someone on his behalf. It
is not necessary that there should be a formal agreement.
(iii) The writing must be in such words from which the terms necessary to construe the
transfer can be ascertained.
(iv) The transferee must in part performance of the contract take possession of the property,
or of any part thereof,
It is not necessary that the contract must contain a direct covenant regarding transfer of
possession.
It is only necessary that possession should have been taken (need not be given) in part
performance of the contract.
Where only temporary possession was given for carrying out construction, it was held that
the exclusive possession in the legal sense remained with the Transferor and the Transferee
was not entitled to protect his possession under Section 53 A of the TP Act.
It is not necessary that the transferee must be in possession of the entire property.

It is enough if the transferee continues in possession or takes possession even of a part of the
property.
(v)The transferee must have done some act in furtherance of the contract. There should be
real nexus between the contract and the acts pleaded as in part performance.
Continued possession of a tenant in the property after entering into the sale agreement would
not by itself amount to a part-performance. There must be some act attributable to the
contract for sale and not lease.
When a person already in possession of the property in some other capacity enters into a
contract to purchase the property, to confer the benefit of Section 53A of TP Act, there must
be some act consistent with the contract alleged and such as cannot be referred to the
preceding title. [AIR 2003 SC 3542].
A tenant, who continued to be in possession as tenant, cannot take benefit of Section 53A,
though subsequently an agreement to sale is entered between the parties.
Where the person puts up construction after being put in possession under the contract of sale
or takes electricity connection, he can gain protection of Section 53A of the TP Act.
(vi) The transferee must have performed or be willing to perform his part of the contract.
The acts claimed to be in part performance must be unequivocally referable to the preexisting contract.
Section 53A confers no rights on a party who was not willing to perform his part of the
contract.
Part performance as statutory right is conferred upon the transferee on condition that the
transferee continues to be willing to perform his part of the contract.
(vii)The document containing contract for transfer of immoveable property, if executed on or
after 24th September, 2001 should be registered.
Part performance applies even if specific performance is not otherwise permissible.The
protection under section 53A can be availed of only under a registered agreement.
Sukhminder Kaur V. Amarjit Singh 12
12 AIR 2012 Punjab & Haryana

Section 53-A of the T.P. Act before amendment recognized part performance of the contract
even though the contract used to be unregistered and the transferees rights to remain in
possession was protected. By the Amendment Act No.48 of 2001, the words the contract
though required to be registered, has not been registered, or have been omitted from the
provision. The effect of the amendment is that now if any person takes possession in
pursuance to a contract which is required to be registered but has not been registered the
transferee has no right to remain in possession of the property. To give effect to this principle,
S. 17 (1A) has accordingly been inserted in the Act of 1908 which mandates that such
contract is now required to be registered. If such a contract entered into after the amendment
is not registered then as per S. 49 of the Act of 1908, the same can neither affect any
immovable property comprised therein nor will it be received as evidence of any transaction
affecting such property or conferring such power.
A person seeking protection of his possession on the basis of unregistered agreement is a
different situation and where a person seeks possession of the property by way of specific
performance of the agreement which is unregistered is a different eventuality. In the latter
class of cases, the agreement to sell is not required to be registered as it does not fail within
the ambit of either S.53-A of the
T.P. Act or S. 17(1A) of the Act of 1908 and does not require any registration. Such
agreement to sell falls under the mischief of S.17 (2) (v) of the Act of 1908. It itself does not
create, declare, assign, limit or extinguish any right, title or interest in the property. Rather it
creates a right to obtain another document which will, when executed, create, declare, assign,
limit or extinguish. It is the sale deed which when executed will create right, title and interest
in the property. Hence, an agreement to
sell is not required to be registered and the same is receivable in evidence in a suit for specific
performance.
A transferee in-possession satisfying all conditions of the section 53A is protected by the
Court, whether he comes as a plaintiff or as a defendant. The court cannot tell the transfereein-possession if he comes as a plaintiff go back, use your physical strength and muscle
power to resist and repel the attack of the transferor and drive him to come to the court as a

plaintiff and then if you are arrayed as a defendant, the court will protect you. Chetak
Construction Ltd. v. Om Prakash13.

Conclusion

Section 53A of the Transfer of Property Act, 1882 seeks to protect the prospective
transferees by allowing them to retain the possession over the property, against the rights
of the transferors, who after the execution of an incomplete instrument of transfer, fail to
complete it in the manner specified by law, without there being any fault on part of the
transferees. This section therefore provides for a partial importation of the English
13 AIR 2003 M.P. 145

doctrine of part performance. It furnishes a statutory defence to a person who has no

registered title in his favour to maintain possession.

BIBLIOGRAPHY