The Doctrine of the Past Performance is being derived from the English Law it is based on the principle of equity. It is also known as the equity of part performance. Section 53A of the Transfer of Property Act talks about the Doctrine of Past Performance. Section 53 says that 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 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 or of the part performance thereof. The proviso is an exception of sorts stating that the interests and rights of a subsequent transferee for consideration will be protected as long as he had no notice of the contract leading to the part performance due or the part performance thereof.https://kanwarn.wordpress.com/2011/02/24/transfer-of-property-act-1882-part-performance/
Section 53A of the act imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee in possession and it disentitles the transferor from seeking possession from the proposed transferee in possession.https://lawtimesjournal.in/__trashed/ It gives the transferee right to protect his property. So this section only gives the right to protect and not the right to the action. This section is applied only to the immovable property and there shall be a consideration. It must be written and signed. There has to be an act in furtherance of the contract. the transferor remains the owner of the property till the sale deed is being executed completely or the contract is performed. So the ownership remains with the owner only the possession can be given. In Jacob Private Ltd v. Thomas Jacob, the Kerala High Court held that willingness in the context of Section 53A must be absolute and unconditional.https://lawtimesjournal.in/__trashed/
Vasanthi v. Venugopal AIR 2017 SC 1569 lays down three important essential requirements for the doctrine of the part performance –
- There must be a valid contract.
- The transferee must take possession of the property or continue to hold possession under the contract and the transferee has performed his part of the contractual obligations or is willing to perform it.https://lexforti.com/legal-news/doctrine-of-part-performance/#_ftn3
