The doctrine of part performance of contract has been dealt with in
section 53-A of the Transfer of Property Act, 1882. It is based on the principle
of equity which says that a right or liability should be equalized among all the
interested parties to the maximum extent possible.
Essentials for the doctrine to be applicable are as follows:
- There must be a written contract for transfer of an immovable property
signed by the transferor. It can't be applied in case of void agreement or
- It must be for a consideration.
- The terms of the contract should be written with reasonable
- The transferee must have taken possession as a result of this contract
or continued if he was already in possession of the property.
- The transferee should have done some act in furtherance of the
- The transferee must have performed his part of the dealing or be willing
to perform it.
Now, the act no longer acts as a substitute for registration as the section has
been amended in 2001 to incorporate the same. The amended sub-section
(1A) provides that the documents for the purpose of transfer of property must be
registered. Or even if it is non-registered, it cannot be used as evidence.
This can be shown through the joint reading of amended section 17 and 48 of
the Registration Act, 1908. In the current scenario, due to the restrictions on
movement by the central government, the registration of the property may seem to
be a tough job for many because of the inability to go to the sub-registrar
office of their district and get their deed registered.
Now, why such a ruckus is being created over the registration of property? This
is where sub-clause (v) of section 2(47) of the Income Tax Act, 1961 comes into
plays which requires the property to be of the nature referred to in section 53
A (of the Transfer of Property Act) for any transaction (related to the
property) to be attracted.
Then, accordingly, the payment of various taxes that comes with the Transfer of
the property can be decided that may be governed by the provisions of
the Payment of Taxes (Transfer of Property) Act, 1949, the Income Tax Act,
1961, etc, although relaxations related to payment of taxes have been provided
by the central government (by finance minister Nirmala Sitharaman) in an effort
to reduce the financial burden upon the citizens at the time of a pandemic.One
of the necessary pre-conditions for section 53A of TOPA, 1882 to come into force
is the willingness of the transferee to perform his part of the contract.
One might very validly think of the way the transferee will show this
willingness to carry forward the contract at the time of the pandemic.
Also, the section does not say that the title passes to the transferee. It only
provides that the transferor should be debarred from enforcing any right in
respect of the immovable property (over which the transferee has taken
possession) against the transferee. Ownership and possession are terms having
distinct meanings. Possession is the physical custody and control of an object
while ownership is the right through which something goes to someone in a legal
According to section 6 of the Transfer of Property Act, the person restricting
such non-transferability must prove the existence of some law or custom which
restricts the right of transfer and as of now no guidelines have been provided
by the central government restricting the transfer of property at the time of
pandemic. Also, the Apex Court in a case held that forcible dispossession of
person of his private property without following the due process of law is a
human right violation and also violative of the constitutional right under
article 300A of the constitution.
The Case Of Landlords And Tenants
At the time of this unprecedented situation of a pandemic, our economy has come
to a halt. One of the worst affected relations because of this is that of a
landlord and a tenant. Generally speaking, a tenant-landlord relationship is
based on the free will of the parties. Even if the contract has a force majeure
clause, it doesn't include pandemic events like the present COVID-19. One of the
most important conditions for invoking such a clause is whether such an event
has affected the ability to perform by a party.
And even if the ability to perform has been affected, it doesn't totally absolve
the party from paying rent, it just suspends. The Supreme Court in a case ruled
that the concept of frustration of contracts doesn't apply to the lease
Taking guidance from the case laws and judgments during the swine flu of 1918,
in majority of the cases it was held that epidemic did not excuse a duty to
perform by the parties. The landlords can raise the point relating to the
deferred payments of the EMI's by the banks for the purpose of seeking loans
from their tenants.
However, what is to be kept in mind is that the term of the loan has been
extendedand banks have been charging the interests limitlessly for the period of
such non-payment. Almost all the state governments in India have enacted their
own rent control laws whose chief objective is to protect tenants from excessive
rents and random hikes. So, it is almost impossible for any landlord at the time
of this pandemic to ask for increased rents from their tenants.
Even if the landlord reaches the court for the recovery of his money, there is
no guarantee as to he'll win the case. Also, the Commercial Courts Act,
2015 bars direct institution of any commercial suit. According to section12A,
Pre-institution Mediation and Settlement Act, a suit that doesn't call for any
urgent interim relief, can be instituted unless the plaintiff is done with the
remedy of pre-institution mediation.
As of now, there is no such law in India that governs the relationship between
the tenant and the landlord at the time of a pandemic. The Rent Control
Act, 1948 is also devoid of any such provisions. Unexpected situations also
require out of the box solutions. Parties need to think on a realistic basis and
try to foresee the future scenario. These can be the time to try for new
solutions such as out of the court settlement- conciliation, mediation and
- Vasanthi v. Venugopal AIR 2017 SC 1569
- Ranchoddas v. Davaji AIR 1977 SC 1517
- Arun Kumar Gupta v. Santosh Kumar AIR 2018 ALL 11
- Vasanthi v. Venugopal AIR 2017 SC 1569
- Rambhau Namdev Gajre v. Narayan Bapuji Dhgotra (2004) 8 SCC 614
- Supreme Court in Vidya Devi v. state of Himachal Pradesh
- Raja Dhruv Dev Chand v. Raja Harmohinder Singh 1968 3SCR 339
Award Winning Article Is Written By: Ms.Srishti Yadav
Authentication No: SP125401942816-11-0921