rule of part performance

Doctrine of Part Performance of Contract.

… The transferee must in part performance of the contract take possession of the property, or, of any part thereof. The transferee must have done some act in furtherance of the contract. The transferee must have performed or be willing to perform his part of the contract.

 

ESSENTIALS OF SECTION 53 A

  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

  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 .

  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

  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]).
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  5. The transferee is willing to perform his part of the 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 the protection of his possession over 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

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