SECTION 53-A OF TRANSFER OF PROPERTY ACT,1882: DOCTRINE OF PART PERFORMANCE by PURNIMA NAIDU @ LexCliq

SECTION 53-A OF TRANSFER OF PROPERTY ACT,1882: DOCTRINE OF PART PERFORMANCE

Introduction:- 

The doctrine of part-performance is an equitable doctrine. It is also known as ‘equity of part performance’. Under this doctrine, if a person has taken possession of an immovable property on the basis of a contract of sale and 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 the sale was unregistered and legal title had not been transferred to him.

For example; there is a contract of sale of a piece of land between A and B. the contract is sin writing, stamped attested and duly executed but not registered by A who is the seller. B, who is the purchaser, has performed or is willing to pay the same. On the basis of such contract B takes possession of land. Now, A sells the land to C through a registered deed. C having the legal title of the land, attempts to eject B. At this stage, since B has no legal title, law may not protect his possession but, equity shall help him from being dispossessed.

The doctrine of part performance is, therefore based upon the maxim: “equity looks on that as done which ought to have been done”. That is to say, equity treats that subject matter of a contract as to its effects in the same manner as if the act contemplated in the contract had been fully executed, from the moment the agreement has been made, through all the legal formalities (e.g. of registration) of contract have not been yet completed.

Part –performance in India Before 1929:- 

Before 1929, the application of English equity of part-performance was neither certain nor uniform. In some cases it was applied whereas in some other cases it was not applied. In Mohammed Musa V/s Aghore Kumar Gangulithe Privy Council held that equity of part-performance could be applied to Indian cases just as it was being applied in England. But later on, in Ariff V/s Jadunath, the Privy Council changed its opinion and held that the doctrine of part performance could not be applied in Indian cases to over ride or by passes the express provisions of the Indian Registration Act, and Transfer of Property Act. Form the above discussion it is clear that the Anglo Indian courts and the Privy Council were in favour of this equity in Indian but with some modifications. Application of English equity in India was therefore, neither uniform nor certain, it was necessary to enact law on this subject. Accordingly, Section 53-A was included in the transfer of property Act by the Amending of 1929

Section 53-A provides that :- 

(i)Where a person contracts to transfer an immovable property for consideration, and

(ii) Acting in furtherance of this contract, the transferee has taken possession over a part or whole of property, and

(iii) Such transferee has either performed his part of contract or ids willing to perform it; Essentials conditions for application of section 53-A:- Analysis of the provisions of section53-A makes it clear that following essentials conditions are necessary for its application:-

(1)There is a contract for the transfer of an immovable property.

(2)The transferee takes possession of the property under this contract.

(3)The transferee has either performed his part of contract or is willing to perform the same.

When the above mentioned conditions are fulfilled, the transferee can defend his continuance of possession over property. In other words, if these requirements are fulfilled, the transferee is entitled to claim, under this section, that he should not be dispossessed or evicted from the property.

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) It must be a written contract. An oral contract does not have any valid to defend under part- performance.

(b)Agreement to sell:- an agreement to sell does not by itself create any right interest or title to property. Such rights are created only by a sale deed. Accordingly in the case Sukhwinderkaur V/s Amerjit Singh, the court held that an agreement to sell is not required to be registered. It is admissible in evidence in a suit for specific performance.

(c) Transfer for consideration: the written contract must be for the transfer of an immovable property for consideration.

(d)Movable property: this section does not apply to an agreement for the transfer of movable property.

(e) Valid contract: it may be noted that section 53-A is applicable only where the contract for the transfer is valid in all respect. It must be an agreement enforceable at law under the Indian Contract Act 1882.

  1. Possession in furtherance of contract :- The second essential requirement is that the transferee has taken possession or continues possession in part-performance of the contract or, has some act in furtherance of the contract.
  2. Transferee is willing to perform his part of contract :- 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.

Difference between English and Indian Law: 

Section 53-A incorporates the provisions of English equitable doctrine of part –performance. But this section is not total importation of English law. It is modified form of English law; the importation id therefore partial. Indian law of part-performance may be distinguished from the English law as under.

(a) Under English law, the doctrine of part-performance is applicable to written as well as oral agreements whereas, section 53-A is applicable only where the agreement of transfer is written.

(b) In England, the equity of part-perf0ormance is active as well a s passive. That is to say, under English law, the transferee is entitled to defend his possession and is also entitled to enforce his right in an independent suit e.g a suit for specific performance or, for an injunction to restraint disposition. In India, section 53-A does not give any right of action to the transferee. Part-performance is only passive here.

Point to remember with context of the topic, the transfer of property is to be made by a living person. Here is living means that the Transferor must be in existence when the transfer is made, Living person also includes juristic person such as companies, corporation, universities.

 

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