The jurisprudential notion of 'part-performance' finds its origin in Maddison v.
, as developed by the English Courts of Equity in the Statute of
Frauds, 1677, allowing Courts to enforce specific performance of contracts
concerning immovable property which have been partly performed by one party,
notwithstanding the compliance of the written and duly signed memorandum with
In India, the 'Doctrine of Part-Performance
,' as partially translated from the
English notion in a limited capacity, is statutorily embodied in S.53A of the
Transfer of Property Act (hereinafter referred to as "T.P.A.") to protect the
parties who, in good faith that the transfers would be fulfilled, rely upon
ineffective documents and take possession of the property or are already in
Through its doctrinal approach, this research paper analyses the application of
'part-performance' in India by amalgamating relevant literary sources and
judicial precedents with the analysis.
Also known as 'equity of part-performance,' the doctrine aims to prevent fraud
and secure transferees in circumstances wherein despite partial performance by
the transferee, transferors refuse to honour original agreements by entering
into new agreements with third parties as observed by the Supreme Court in Kamalabai Laxman Pathak v. Onkar Parsharam Patil
The Court also maintained
that if an individual makes equity himself, it cannot be opposed by the lack of
formality in the contract by reiterating the maxim 'equity treats that as done
which ought to have been done.' This principle acts as a deviation from the
usual mandate requiring written and registered contracts for the conveyance of
The Hon'ble Supreme Court in Vasanthi v. Venugopal, has laid down the
following requirements of the doctrine as per S.53A:
- A contract of conveyance concerning immovable property must exist for a valid consideration, signed by transferor or his/her representative, ascertainable with reasonable certainty.
- Possession of property or any part of it should be taken by the transferee, or the transferee must continue to possess the property and do acts in the furtherance of contract as partial performance.
- The transferee should fulfill his part or should be willing to do so.
- A transferee inconsistent with the terms of the contract would remain aloof from any relief claimed by the transferee against him.
More case laws expounding the Court's interpretation of the particulars and
exceptions of the doctrine have been incorporated ahead.
For the purpose of critically analysing the aspects of the doctrine of as
enshrined in S.53A, one must dissect its five legal dimensions:
- Existence of a Contract
Principally, a duly-signed written contract transferring immovable property
is required to affect the doctrine. While oral agreements remain
unenforceable according to S.53A, conditions converting the same in writing
allow its application. Additionally, agreements transferring property
without consideration, such as gifts, attract no redressal under this
section. Nonetheless, an ambiguous and unascertainable contract would
attract no recourse under this provision since a reasonable degree of clarity is
an essential component of S.53A, as observed in Smt. Hamida v. Smt. Humer.
- Act of Part-Performance
A party should act subsequent or simultaneous to the contract but not anterior
or prior to the agreement, i.e., the conveyee should either take possession or
continue possession of the property or any part of it in a lawful manner.
Merely obtaining money to pay as consideration does not amount to
part-performance, while making payments for the repairs does because it is
equivocally attributable to the contract. In the case of Nathu Lal v. Phool
Chand, the Hon'ble Court had held that possession is not the only way to
partly perform the contract, particularly in circumstances wherein the party
already possesses the party and may require further performance.
- Willingness to Perform
Since no equities stem from a contract that one is unwilling to perform, i.e.,
'he who seeks equity must do equity,' the bench in B. Paramashivaiah v. M.K.
Shankar Prasad has observed that in order to avail defence under S.53A, one
must be absolutely and unconditionally willing to carry out his share of the
agreement. It must be demonstrated or proven that the person availing the
benefit of this provision is set to fulfil his part of the obligation.
Moreover, in instances wherein a sequence has to be adhered to while performing
obligations, the performance of the contract by the transferee cannot be
expected unless the transferor has fulfilled his part in the first instance.
- Application of the Provision
The applicability of S.53A does not rest on the specific enforceability or
status of registration of the contract. However, post the amendment of S.53A by
the Registration and Other Related Laws (Amendment) Act, (hereinafter
referred to as "Amendment") the Supreme Court in Ameer Minhaj v. Diedre
Elizabeth (Wright) Issar & Ors. has established that unregistered documents
can no longer claim protection or serve as evidence under S.53A of the T.P.A,
thereby limiting its ambit and application.
In Hemraj v. Rustomji, the Hon'ble Court has observed that S.53A is
inapplicable to subsequent transferees who do not have the knowledge, actual or
constructive, of the contract or its part performance thereof, i.e., no claim
would persist if the recipient transferee is unaware of the transaction unless
it is a gratuitous transferee or the receipt of subsequent notice of contract or
part performance is established.
Thus, despite being an unambiguous principle, understanding and interpreting
this doctrine has not been rid of its complexities and complications, often
necessitating judicial interpretations.
'Shield or Sword'
Unlike its English adversary, S.53A is intended to be used as a 'passive right'
in the form of a shield, not a sword, and does not bestow a real title on the
conveyee. It creates a right of estoppel as a means of defending their
possession and not for obtaining it.
Previously, in Juhar Mal v. Kapoor Chand
, the Court held that a right under
S.53A was available to the transferee while he was a defendant and not a
plaintiff. However, the Court did away with this narrow approach by focusing on
the right being claimed in that suit in the case of Ram Chander v. Maharaj
Kunwar. It was held that as long as the objective of invoking S.53A was to
defend the right of possession and not obtain it, it did not matter whether the
transferee occupied the position of a defendant or plaintiff.
Hence, the transferees' position as the plaintiff has not been interpreted as
the use of the doctrine in an assertive manner and remains a 'passive equity' in
the eyes of the Court.
It is not uncommon in India to come across transfer deeds that are merely
consensual agreements or contracts written on parchment informally, much less
registered. Thus, the 'Doctrine of Part-Performance' by statutorily protecting
the ideals of equity, justice and good conscience in the Indian socio-legal
landscape, continues to prevent the manipulation and exploitation of people who
are ignorant and misinformed of the required legal formalities, despite losing a
significant portion of its application post the enactment of the Amendment.
Therefore, for the promotion of equitable transactions and the preservation of
justice, it is of utmost importance that the courts maintain an equilibrium
between enforcing this principle and preventing its possible exploitation. The
continuous evolution of legal precedents plays a vital role in shaping the
doctrine's future and its practical implications in Indian property law.
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- G.M. Sen, Doctrine of Part Performance in India, 11, JILI, 225 (1969).
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