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.
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
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.
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
, has given emphasis on the ingredients of the Section 53-A
which are as follows:
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, 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.)
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.).
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).
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
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)
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 ) 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:
||Sub Section 1 A of Registration Act
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 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
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’.
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.
Written By Tejas V. Bhogaonkar
- AIR 1995 Bom 113
- (2007) 6 SCC 650
- AIR 1986 Ker 206
- AIR 1992 All. 346)
- AIR 1990 Ker. 186
- AIR 1970 SC 546
- AIR 1982 SC 989
- AIR 1995 Ker 249