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Sword or Shield: Doctrine of Part-Performance in India

The jurisprudential notion of 'part-performance' finds its origin in Maddison v. Alderson case,[1] as developed by the English Courts of Equity in the Statute of Frauds, 1677,[2] 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 the statute.[3]

In India, the 'Doctrine of Part-Performance,' as partially translated from the English notion in a limited capacity,[4] is statutorily embodied in S.53A of the Transfer of Property Act[5] (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 possession.[6]

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.[7]

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 immovable property.

Case Laws
The Hon'ble Supreme Court in Vasanthi v. Venugopal,[8] has laid down the following requirements of the doctrine as per S.53A:
  1. A contract of conveyance concerning immovable property must exist for a valid consideration, signed by transferor or his/her representative, ascertainable with reasonable certainty.
  2. 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.
  3. The transferee should fulfill his part or should be willing to do so.
  4. 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:
  1. Existence of a Contract
    Principally, a duly-signed written contract transferring immovable property[9] is required to affect the doctrine.[10] While oral agreements remain unenforceable according to S.53A,[11] conditions converting the same in writing allow its application.[12] Additionally, agreements transferring property without consideration, such as gifts, attract no redressal under this section.[13] 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.[14]
  2. 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.[15] 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.[16] In the case of Nathu Lal v. Phool Chand,[17] 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.
  3. 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[18] 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.[19] 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.[20]
  4. 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,[21] (hereinafter referred to as "Amendment") the Supreme Court in Ameer Minhaj v. Diedre Elizabeth (Wright) Issar & Ors.[22] 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.
  5. Exception
    In Hemraj v. Rustomji,[23] 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.[24] It creates a right of estoppel as a means of defending their possession and not for obtaining it.[25]

Previously, in Juhar Mal v. Kapoor Chand,[26] 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.[27] 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.

  1. 8 App Cas 467.
  2. 29 Gr. 2, c. 3. 4 Halsbury's Statutes of England (2nd ed. 1948).
  3. Lester v. Foxcroft, 1 Colles P.C. 108.
  4. G.M. Sen, Doctrine of Part Performance in India, 11, JILI, 225 (1969).
  5. Transfer of Property Act, 1882, � 53A, No. 4, Act of Parliament, 1882 (India). [Ins. by Act 20 of 1929, � 17.]
  6. A.M.A. Sultan v. Seydu Zohra Beevi, AIR 1990 Kerala 186.
  7. AIR 1995 Bom 113.
  8. (2017) 4 SCC 723.
  9. Hameed v. Jayabharat Credit & Investment Co. Ltd, AIR 1986 Ker 206.
  10. Govind Prasad Dubey v. Chandra Mohan Agnihotri, I.L.R. (2009) M.P. 2228.
  11. V.R. Sudhakara Rao v. T.V. Kameswari, (2007) 6 SCC 650.
  12. D.S. Parvathamma v. A. Sri Nivasan, (2003) 4 SCC 705.
  13. Sabha Baijnath Co-operation Multipurpose Society Ltd. v. State of H.P., AIR 1984 NOC 67.
  14. AIR 1992 All 346.
  15. Maram Pocham v. Agent of State Government, AIR 1978 A.P. 242.
  16. Dr. Ashok Kumar Jain, Property Law, ASCENT Publications, 197 (3rd ed. 2018).
  17. (1969) 3 SCC 120.
  18. 2009 (3) kar.L.J. 319.
  19. Jawahar L. Wadhwa v. Haripada Chakraborty, AIR 1989 SC 606.
  20. Nathu Lal v. Phool Chand, AIR 1970 SC 546.
  21. Registration and Other Laws (Amendment) Act, 2001, No. 48, Acts of Parliament, 2001 (India).
  22. (2018) 7 SCC 639.
  23. AIR 1953 SC 503.
  24. G.M. Sen, Doctrine of Part Performance in India, 11, JILI, 226 (1969).
  25. Achayya v. Venkata Subha Rao, AIR 1957 A.P. 854.
  26. AIR 1983 Raj 139.
  27. AIR 1939 All 611.

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