1) Section 53A of the Transfer of Property Act provides protection for a transferee who has taken possession of property pursuant to an oral or unregistered agreement for transfer.
2) The section allows the transferee to defend their possession against the original owner, but does not confer any title or interest in the property to the transferee.
3) The section can only be used as a defense; it does not allow the transferee to file a suit or claim title to the property actively.
1) Section 53A of the Transfer of Property Act provides protection for a transferee who has taken possession of property pursuant to an oral or unregistered agreement for transfer.
2) The section allows the transferee to defend their possession against the original owner, but does not confer any title or interest in the property to the transferee.
3) The section can only be used as a defense; it does not allow the transferee to file a suit or claim title to the property actively.
1) Section 53A of the Transfer of Property Act provides protection for a transferee who has taken possession of property pursuant to an oral or unregistered agreement for transfer.
2) The section allows the transferee to defend their possession against the original owner, but does not confer any title or interest in the property to the transferee.
3) The section can only be used as a defense; it does not allow the transferee to file a suit or claim title to the property actively.
1) Section 53A of the Transfer of Property Act provides protection for a transferee who has taken possession of property pursuant to an oral or unregistered agreement for transfer.
2) The section allows the transferee to defend their possession against the original owner, but does not confer any title or interest in the property to the transferee.
3) The section can only be used as a defense; it does not allow the transferee to file a suit or claim title to the property actively.
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Doctrine Of Part- Performance 6
COMPARISON OF 53 – A WITH ENGLISH
DOCTRINE OF PART PERFORMANCE
Under English law, the equity of part – performance was developed by the Chancery Courts against the strict provisions of the Statute of Frauds, 1677. Sec – 4 of this Act provided that all agreements in respect of transfer of lands must be in writing. The transfer of immovable property on the basis of oral agreement was illegal and the transferee couldn’t get title in the land. Strict application of this law created great hardships and a
SCOPE OF SECTION – 53-A
The following postulates are sine qua non for basing a claim on Section 53 A of the Transfer of Property Act:
a) There must be a contract to transfer for consideration any immoveable property.
b) The contract must be in writing, signed by the transferor, or by someone on his
behalf.
c) The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
d) The transferee must in part performance of the contract take possession of the property, or of any part thereof.
e) The transferee must have done some act in furtherance of the contract.
f) The transferee must have performed or be willing to perform his part of the contract.1
1 Nathulal supra note 3; Shrimat Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi, AIR 2002 SC 960; Rambhao Namdeo Gajre v. Narayan Bapuji Dhotra, (2004) 8 SCC 614; Ram Kumar Agarwal v. Thawar Das, (1999) 7 SCC 303; Jacobs Private Limited v. Thomas Jacob, AIR 1995 Ker 249. See also Damodaran v. Shekharan, AIR 1993 Ker 242, M. Mariappa v. A.K. Sathyanarayan Shetty, AIR 1984 Kant 58. Doctrine Of Part- Performance 6
So far as applicability of Section 53A is concerned, what is to be seen is that the Section provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell to the transferee, if the proposed transferee satisfies the other conditions of Section 53A. It doesn’t confer any title or interest to the transferee in respect of the property in possession. Except the right to continue his possession, no other title or interest is created is created in favour of the transferee.
LIMITATIONS OF SECTION – 53 – A AVAILABLE ONLY AS A DEFENCE
The Privy Council in Probodh Kumar Das v. Dantmara Tea Co.2has held that the right conferred by Section 53A is a right available to the defendant to protect his possession. The Section is so framed so as to impose statutory bar on the transfer; it confers no active title to the transferee. The above law laid down has been followed with approval by the Supreme Court in the case of Technicians Studio Pvt. Ltd. v. Leela Ghosh.3
It has been held that Section 53A is only a partial importation in the statute law of India of the English doctrine of part performance. Thus, a person who is lead into possession on the strength of a void lease does not acquire any interest in the property, but gets under Section 53A only a right to defend his possession. It can be used only as a defence.4 Following Probodh Kumar, the Supreme Court again in Delhi Motor Company v. U.A.Basrurkar5 has held that Section 53A is only available as defence to the lessee, and not as confirming a right as the basis of which the lessee can claim rights against the lessor.
2 AIR 1940 PC 1. 3 AIR 1977 SC 324. 4 Ram Gopal Reddy v. Additional Custodian, Evacuee Property, AIR 1966 SC 1438. 5 AIR 1968 SC 794. Doctrine Of Part- Performance 6
This Section does not confer title on the defendant in possession 6; and he cannot maintain a suit on title.7 The Supreme Court has approved this principle. Thus it can be concluded that this section does not create a title in the defendant but merely acts as a bar to the plaintiff in asserting his title. It is limited to the cases where the transferee has taken possession, and against whom the transferor is debarred from enforcing any right, other than that mentioned in the contract.
But the words of the Section do not warrant a conclusion that the plaintiff as such is necessarily debarred from the benefit of this Section. 8 The true position as explained by Justice Subba Rao, in a case decided by Andhra Pradesh High Court is:
“whether the transferee occupies the position of a plaintiff or a defendant, he can
resist the transferor’s claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. The utility of the Section or the rights conferred there under should not be made to depend upon the manoeuvring for positions in the court of law, otherwise a powerful transferor can always defeat the statutory provisions of the Section by dispossessing the transferee by force and compelling him to go to the court as plaintiff. Doubtless, the right conveyed under the Section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield.” 9 Thus, the correct interpretation of this section is that this section gives to the transferee only the right to defend his possession; this defence of possession may be in the form of plaintiff or defendant.
TRANSFERS AND AGREEMENTS COVERED BY THIS SECTION
This Section applies to leases and agreements to lease. 10 Where an agreement to lease is evidenced by correspondence, the lessee is put in possession, and there has been acceptance of rent by the lessor for several years, the Supreme Court held that section was applicable, and the lessee could defend the suit for ejection. 11 It also applies to usufructuary mortgages and mortgages with possession.12
6 Kuchwar Lime Stone Co. v. Secretary of State, AIR 1936 Pat 372. 7 S.N.Banerjee v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128. 8 Radhanath Swain v. Madhusudan, AIR 1956 Ori 58. 9 Achayya v. Venkata Subba Rao, AIR 1957 AP 854 10 Maneklal Mansukhbhai, supra note 3. 11 Ibid. 12 Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81; Rami Reddi v. Venkat Reddi, AIR 1963 AP 489. Doctrine Of Part- Performance 6
It however does not apply to a family agreement which does not involve a transfer of property13, or to a partition which is not transfer at all. 14 It also doesn’t apply to license or to the transfer of moveable property.
RIGHT EXPRESSELY PROVIDED BY THE CONTRACT
The transferor may enforce a right which is expressly provided by the contract. So, if the contract were an agreement of lease not provable for the want of registration, the lessee could resist a demand for rent. Of he did so, he will be disentitled to the benefit of the Section as not being willing to perform his part of the contract. so also where a lessee has already put in possession of certain premises in part performance of an unregistered lease, the lessor can enforce the term of the lease entitling him to re-enter, if there default in payment of six months’ rent.15 Similarly, if the unregistered lease was only for a term, there would be no right to continue in possession after the expiry of the term. 16
PROVISO: TRANSFEREE FOR CONSIDERATION WITHOUT
NOTICE
The proviso to this Section protects the rights of a subsequent transferee for value without notice of previous transferee’s rights of part-performance. Therefore, this Section does not affect the rights of transferee for consideration who has no notice of the contract of sale or of part-performance. The purpose of the proviso is to defeat the claim which would otherwise, have succeeded under the main part of this Section. 17 The question of proviso does not arise until and unless the claimant has substantiated his claim under the main part of this Section.18 The proviso to the Section saves the right of a transferee for consideration who has no notice of the contract or its part-performance. The burden for proving that he is a transferee for consideration without notice is on the transferee. 19 This was so held prior to the enactment of Section 53A.
WHEN IS DOCTRINE OF PART-PERFORMNACE NOT AVAILABLE
13 Jileba v. Marmersa, AIR 1950 All 700. 14 Rashakretayya v. Sarasamma, AIR 1951 Mad 213. 15 Muralidhar v. Tara Dye, AIR 1953 Cal 349. 16 Radha Charan Das v. Pranbati Dassi, (1959) 63 Cal WN 535. 17 SOLI J SORABJEE, DARASHAW J VAKIL’S COMMENTARIES ON THE TRANSFER OF PROPERTY ACT 595 (2nd edn Wadhwa Nagpur 2004). 18 S Veerabadra Naicker v. S Sambanda Naicker, AIR 2003 Mad 19; Yasodammal v. Janaki Ammal, AIR 1968 Mad 294 19 Prova Rani v. Lalit Mohini, AIR 1960 Cal 541 Doctrine Of Part- Performance 6
This doctrine was not available against other co-owners, i.e., the two brothers who were not the signatories to the agreement or the consenting party or the recitals show that the agreement was entered into with the consent of the adult members; therefore, the protection of doctrine of part performance was not available to defendant no.3 against the plaintiffs. Therefore, even if the agreement was valid to the extent of the share of the widow, as held by the lower appellate Court, the remedy for the appellant was to institute a suit for decree for specific performance to the extent of the share of the widow and also a suit for partition as it was a Hindu undivided family property.
CONCLUSION The doctrine of part performance is an equitable doctrine designed to relieve the rigor of the law and provide a remedy when a transfer or an agreement for transfer falls short of the requirements laid down by the law. In England the doctrine was developed by the Equity Courts. In a modified form it has been recognized statutorily in India being embodied in Section 53A.
Section 53A of the Transfer of Property Act applies to a person who contracts to transfer immovable property in writing. If the proposed transferee in agreement has taken possession of the property or he continues in possession thereof being already 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, the transferor shall be debarred from enforcing any right in respect of the property.
Also, Section 53A does not confer any title or interest to the transferee in respect of the property in his possession. Furthermore, it does not give to the transferee any right of action. It provides merely a right of defence. This is the essence of the principle incorporated in Section 53A of the Transfer of Property Act.
Doctrine Of Part- Performance 6
Doctrine Of Part- Performance 6
BIBLIOGRAPHY BOOKS
1. Sarthi Vera P., G.C.V. Subba Rao’s Law of Transfer of Property (Easements, Trust and Wills), 6th edn, Alt Publications, Hyderabad, 2005
2. Singh Avtar, The Transfer of Property Act, Universal Law Publishing Co. Pvt. Ltd., Delhi, 2005
3. Sinha R.K., The Transfer of Property Act, 12 th edn, Central Law Agency, Allahabad, 2011
CASE LAWS
1. Achayya v. Venkata Subba Rao, AIR 1957 AP 854;
2. Probodh Kumar Das v. Dantmara Tea Co, AIR 1940 PC 1.
3. Delhi Motor Company v. U.A.Basrurkar, AIR 1968 SC 794.
4. Technicians Studio Pvt. Ltd. v. Leela Ghosh, AIR 1977 SC 324.
5. AMA Sultan and Ors. v. Seydu Zohra Beevi, AIR 1990 Ker 186.
6. Amrao v. Baburao, (1950) ILR Nag 25
7. Ariff v. Jadunath, AIR 1931 PC 79
8. Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81;
9. Balram Jairam v. Kewalram, AIR 1940 Nag 396
10. Bhabhi Dutt v. Ramlalbyamal, AIR 1934 Rang. 303.
11. Bhagwandas v. Surajmal, AIR 1961 MP 237.
12. Chaliagulla Ramchandrayya v. Boppana Satyanarayana, AIR 1964 SC 877
13. Chaman Lal v. Surinder Kumari, AIR 1983 P&H 323.
Doctrine Of Part- Performance 6
14. Chetak Construction Ltd. v. Om Prakash, AIR 2003 MP 145.
15. Damodaran v. Shekharan AIR 1993 Ker 242,
16. Delhi Motor Co. v. Basurkar, AIR 1968 SC 794.
17. Gajdhar v. Bachan, AIR 1943 All 768.
18. Hamida v. Smt Humer and ors., AIR 1992 All 346.
19. Hazilal v. Jugal Kishore, AIR 1999 MP 104.
20. Hemraj v. Rustomji, AIR 1953 SC 503.
21. Jacobs Private Limited v. Thomas Jacob, AIR 1995 Ker 249
22. Jileba v. Marmersa, AIR 1950 All 700.
23. Kripa Ram v. Bishen Das, AIR 1944 Lah 179.
24. Kuchwar Lime Stone Co. v. Secretary of State, AIR 1936 Pat 372.
25. M. Mariappa v. A.K. Sathyanarayan Shetty, AIR 1984 Kant 58.
26. Madan Mohan v. Srinivas Prasad, AIR 1943 Pat 343.
27. Mahalakshmi v. Venkatareddi, AIR 1944 Mad 556.
28. Mahomed Musa v. Aghore Kumar Ganguli, (1914) ILR 42 Cal 801
29. Maneklal Manuskhbahi v. Honnusji Jamshedji, AIR 1950 SC 1
30. Manjural Hoque v. Mewajan Bibi, AIR 1956 Cal 350.
31. Maruti v. Krishna, AIR 1967 Bom 34.
32. Mian Pir Bux v. Sardar Mahomed Tahar, AIR 1934 PC 235
33. Muralidhar v. Tara Dye, AIR 1953 Cal 349.
34. N.P.Tripathi v. Damayanti Devi & Anr, AIR 1988 Pat. 123
35. Nathu Lal v. Phoolchand, [1970] 2 SCR 854.
Doctrine Of Part- Performance 6
36. Patel Natwarlal Rupji v. Kondh Group Kheti Vishayak, AIR 1996 SC 1088.
37. Prova Rani v. Lalit Mohini, AIR 1960 Cal 541
38. Radha Charan Das v. Pranbati Dassi, (1959) 63 Cal WN 535.
39. Radhanath Swain v. Madhusudan, AIR 1956 Ori 58.
40. Ram Gopal Reddy v. Additional Custodian, Evacuee Property, AIR 1966 SC 1438.
41. Ram Kumar Agarwal v. Thawar Das (1999) 7 SCC 303
In the Matter of Barclay Industries, Inc., Debtor. Appeal of Two-Forty Associates. In the Matter of Barclay Industries, Inc., Debtor. Appeal of Teachers Insurance & Annuity Association of America, 736 F.2d 75, 3rd Cir. (1984)
In the Matter of Barclay Industries, Inc., Debtor. Appeal of Two-Forty Associates. In the Matter of Barclay Industries, Inc., Debtor. Appeal of Teachers Insurance & Annuity Association of America, 736 F.2d 75, 3rd Cir. (1984)
