File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

The Doctrine of Part Performance

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
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:
  1. AIR 1995 Bom 113
  2. (2007) 6 SCC 650
  3. AIR 1986 Ker 206
  4. AIR 1992 All. 346)
  5. AIR 1990 Ker. 186
  6. AIR 1970 SC 546
  7. AIR 1982 SC 989
  8. AIR 1995 Ker 249
Written By Tejas V. Bhogaonkar

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly