DOCTRINE OF PART-PERFORMANCE 

Transfer of Property Act, 1882

TANMOY MUKHERJEE INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherjee

[Advocate]

DOCTRINE OF PART-PERFORMANCE [Section 53-A]

Tanmoy Mukherjee

      [Advocate]

 

Section 53A of the Transfer of Property Act, 1882 speaks about the Doctrine of Part Performance. This Section (53A) was inserted by Section 16 of the Amendment Act 20 of 1929. It runs as follows:

-Where 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 the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the 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 of the part performance thereof.

-Law imposes certain formalities for validity of certain contracts. It requires registration for transfer of an immovable property if the value is above Rs.100/- strict compliance to such legal formalities sometimes may lead to great hardship. For instance, in a contract, both the parties have to fulfill their contractual obligations. One party had already performed his obligation with a confidence that the other party would perform his part. But, the other party may refuse to perform his part taking the advantage that the document is not registered. In such cases, the doctrine of part performance is applicable, though there is no registered document.

Section 53A of the T.P.Act, which deals with the 'doctrine of part performance', is an exception to the general rule that "every transfer of property is to be registered, if required under law". In England, Section 4 of the Statute of Fraud, it is provided that no action or suit shall be maintained on an agreement relating to land, which is not in writing signed by the party to be charged with. The doctrine of part performance is based on the principle of equity that the statute cannot be allowed to be made on instrument of fraud.

According to this doctrine, where a person has taken possession of immovable property on the basis of a contract of sale and he has either performed or is willing to perform his part of contract, then he would not be ejected from the property on the ground that sale was unregistered and legal title has not been transferred to him.

Example-

(1) 'A' agrees to sell his property to 'B' and 'B' has taken possession of the same. Later, 'B' cannot refuse to perform (enforce) the contract taking the advantage that the agreement is not registered.

(2) A has a house. A contracted with B to sell his house. B paid some amount as an advance towards the price of the house. Meanwhile, A handed over the possession of the house to B. While B was ready to pay the balance amount, A refused to take that amount, moreover demanded B to vacate the house, and to cancel the contract. B is ready to perform his part. But A is not ready to perform his part. Then B can bring a suit for the specific performance of the contract against A. A cannot take the plea that the sale of the house is not registered. This is called the 'Doctrine of Part Performance'. It is born from English Law of Equity.

Object-

 The main object of the doctrine of part performance under Section 53A of the T.P.Act is to protect the interests of an ignorant/innocent purchaser/transferee, who takes possession or spends money in improvements relying on documents, which are ineffective as transfers or on contract, which cannot be proved for want of registration.

Essential Elements-

The doctrine, to be applied, the following conditions are to be satisfied:

(1) There must be a contract to transfer an immovable property for consideration;

(2) The contract must be in writing signed by or on behalf of the transferor;

(3) The contract must be such that from it the terms of transfer can be ascertained with reasonable certainty;

(4) The transferee must in pursuance of the contract have taken possession of the subject matter of transfer or if he is already in possession, continues in possession;

(5) The transferee must have done some act in furtherance of the contract; and

(6) He has performed or willing to perform his part of the contract.

Reference Cases-

Walsh vs. Lansdalel, 11882, 21 Ch.D 9 —

-In this case, 'L' and 'W' entered into lease agreement for 7 years. The rent was to be payable quarterly. An advance of one-year rent also was to be paid if demanded. 'W' took possession by paying the quarterly rent without executing lease deed. Later, 'L' demanded advance (of one year rent). On default 'L' seized 'W's goods. 'W's suit for damages was dismissed by House of Lords. The Court held that the agreement of lease could be treated as lease itself.

The rule laid down in Walsh vs. Lansdale is not applicable in India as it did not constitute the doctrine of part performance.

Maddison vs. Alderson (1883) 3 App. Cas 467 (475, 476) –

- Alderson entered into an agreement with 'B' to render some service. 'B' should give his life estate to Alderson as consideration. The validity of the will was questioned for want of attestation. 'B's heir sued on the ground that the will was not valid. The House of Lords held that the 'Doctrine of part performance' was not applicable since 'A's service was not in connection with the transfer of property.

Position in India-

The doctrine of part performance so developed in England was not incorporated originally in the Transfer of Property Act, 1882. It was inserted in this Act by the Amendment Act of 1929. Before the enactment of the Transfer of Property Act 1882, the English doctrine of part performance was applied in India. At that time, two different lines of arguments were taken up. According to some High Courts, the English doctrine of part performance did not apply in India, because Section 54 of the Act requires a sale of an immovable property worth Rs.100/- or more, to be completed by registered instrument.

Similarly, Section 59 requires that where the principal money secured is Rs.100 or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Section 107 dealing with leases, says that 'a lease of immovable property from year to year or for any term exceeding one year or reserving yearly rent can be made only by a registered instrument.' Some High Courts, on the other hand, were of the view that the doctrine was applicable in India.

-When this controversy was raised before the Privy Council in-

 Mohd. Musa vs. Aghor Kumar Ganguli (AIR (1914) P.C. 27 (30))

 It held that the doctrine of part performance is applicable in India.

 But in two subsequent cases, the Privy Council deviated from its stand in Moh. Musa's case and held that the doctrine did not apply in India.

Ariff. Jadunath (1931) 5 I.A. 98-

 It was held that the doctrine could not be applied in India so as to override the imperative provisions of the Transfer of Property Act and the Registration Act.

This view was again reiterated in Mian Pir Bux vs. Sardar Mohd. Tahir, (1934) 61 I.A. 388-

It was held that the claimant should seek his remedy consistently with and not in violation of the statute.

Distinction between English Law and Indian Law-

The doctrine of part performance is applied in England and India. Following are the notable points of distinction in its application-

English Law	Indian Law
1. Section 40 of the Law of Property, 1925 deals with the doctrine in England.	1. Section 53A, which is inserted to the T.P. Act, 1882 (by the Amendment Act of 1929) deals with the doctrine.
2. To invoke protection under the doctrine, the contract need not be written and signed by the Transferor.	2. The contract must be in writing and signed by the transferor.
3. The right under the doctrine is equitable right.	3. The right under the doctrine is statutory right.
4. Under the English law, the Doctrine of Part Performance can be used both as shield as well as sword. It can be used both for enforcing the right as well as for defending the right.	4. Section 53A can be availed only as a shield and not as a sword i.e., it can be used only for defending the possession of the transferee.
5. It creates a title in the transferee.	5. It does not create a title in the transferee