UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY

THE TRANSFER OF PROPERTY ACT PROJECT

DOCTRINE OF PART PERFORMANCE

SUBMITTED TO – DR. ALAMDEEP KAUR

SEMESTER – 5TH

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 ACKOWLEDGEMENT

In preparation of my assignment, I had to take the help and guidance of some respected
people, who deserve my deepest gratitude. As the completion of this assignment gave me
much pleasure, I would like to show my gratitude Dr ALAMDEEP KAUR professor in
UILS for giving me good guidelines for assignment throughout numerous consultations. I
would also like to expand my gratitude to all those who directly or indirectly guided me in
writing this assignment. Many people especially my classmates have made valuable
comment suggestions on my paper which gave me an inspiration to improve the quality of
the assignment.

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 INDEX

TOPIC PAGE NO

1. INTRODUCTION 4
2. DOCTRINE OF PART- 5
PERFORMANCE
3. ESSENTIAL CONDITIONS FOR 6
APPLICATION OF SEC-53A
4. COMPARISON OF SEC 53A WITH 7-9
ENGLISH DOCTRIE OF PART
PERFORMANCE
5. SCOPE OF SECTION 53 A 9
6. LIMITATIONS OF SEC 53 A 10-12

7. CONCLUSION 13
8. BIBLOGRAPHY 14

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 INTRODUCTION
Property is one of the most fundamental elements of the socio-economic life of an individual.
Juridically, property can be said to be a bundle of rights in a thing or a land. However, the word
has gradually been given a wider meaning. Economic significance of the property, therefore,
rests more on its dispositions. Property law has therefore become an important branch of civil
law. The Transfer of Property Act, 1882 deals with the transfer of immoveable property inter-
vivos (although some provisions deal with the transfer of moveable as well as immovable
property).

Before this enactment, the transfers of immovable property were mostly governed by English
equitable principles as applies by Anglo-Indian Courts. The ‘doctrine of part-performance’ is
one of the equitable doctrines applied by these Courts.

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DOCTRINE OF PART PERFORMANCE
Doctrine of part performance is an equitable doctrine. It is also known as ‘equity of part-
performance’. In law of contracts (for e.g., a contract for sale), no rights pass to another till the
sale is complete. But if a person after entering into a contract performs his part or does any act
in furtherance of the contract, he is entitled to reimbursement or performance in case the other
party drags its feet. This doctrine is based on this part performance of contract. If a person has
taken possession of an immovable property on the basis of 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 the legal title had not been transferred
to him.

PART – PERFORMANCE
Section 53A of the Transfer of Property Act provides that “Where any person contracts to
transfer for consideration any immoveable 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 […..]1 where there is an instrument of transfer, that the transfer has
not been completed in the manner prescribed therefore by the law for the time being in force,
the transferor or any other 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 the rights 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.”

1
The words ‘the contract, though required to be registered, has not been registered or’ has been omitted by Section
10 of the Registration and Other Related Laws Amendment Act 2001 (Act no. 48 of 2001) with effect from 24
September, 2001.

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The Section has been described by the Privy Council, and by the Supreme Court, as partial
importation of the English of doctrine of part performance. By virtue of this Section part
performance does not give rise to equity, as in England, but to a statutory right.

ESSENTIAL CONDITIONS FOR THE APPLICATION OF

a) There is a contract for the transfer of an immovable property. The contract must be
written and it must be for the transfer of an immovable property for consideration. Also,
the contract must be valid in all respects.
b) The second essential is that the transferee has taken the possession of the property or
continues possession in part-performance of the contract or, has done some act in the
furtherance of the contract.
c) When a person claims protection of his possession over a land under Section 53A, his
own conduct must be equitable and just. That is 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 the 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.

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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 bona fide transferee who
performed his part of contract of by paying the price in full or in part and who had also taken
possession of land couldn’t get title merely because of the absence of the legal formalities.
Such transferees were helpless and were being harassed. Equity then came to their help.
Chancery Courts held that part – performance by such transferees would take their cases out of
the Statue of Frauds. Since then, the equity of part – performance developed further and passed
through several stages for protecting the interests of the transferees who had performed their
part of contract in good – faith and the transferor attempted to harass them on the ground of
technical defect in the contract.

Walsh vs. Longsdale2 and Maddison vs. Alderson3 are two of the major cases that have helped
develop the doctrine of part performance in England. In India, this doctrine has been enacted
with a few modifications.

MADDISON vs. ALDERSON4

B was A’s servant. A had promised B a certain property as life estate, meaning B could enjoy
the property during his life time. B served A for years upon this promised life estate. The will
bequeathing such interest and property to B failed due to want for proper attestation. After A
died, one of his heirs brought action to recover the property from B.

It was held that the act of part performance could not be proof of the contract since the
performance was a condition precedent to the contract. The heir of A was able to recover
the said property.

2
(1882) 21 Ch D 9
3
(1883) 8 A.C. 467
4
Ibid 6

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WALSH vs. LONGSDALE5

Walsh took a cotton mill on lease for 7 years from Longsdale, the owner of the mill. The
agreement was prepared but not signed. In the meantime, rent arrears started to accumulate as
Walsh could not keep up with the quarterly payments of rent. An advance of one year’s rent
could be demanded by Longsdale as per the contract. Lonsdale demanded the advance rent for
one year and seized some goods of Walsh when he defaulted. Walsh sued for damages.

The House of Lords decided in favour of Lonsdale stating that by running the mill, Walsh had
admitted he was a lessee and evidence of his consent to the unsigned lease deed.

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

Before 1929 (when Section 53A was inserted in the Transfer of Property Act), the application
of English equity of part-performance was neither certain nor uniform. In certain cases it was
applied whereas in other cases it was not applied.

The Privy Council in Mohd Musa vs. Aghor Kumar Ganguli6 held that doctrine of part
performance is applicable in India. In this case there was a compromise deed which was in
writing but not registered. Under this deed there was division of certain lands between the
parties who had taken possession over their respective parts of the land on the basis of the
compromise deed. The parties continued possession over their lands for many years. After
about forty years, the heirs of the parties repudiated the compromise deed on the ground that it
was not registered. The Privy Council applied the doctrine of part-performance as stated in
Maddison v Alderson and held that although the compromise deed was unregistered but, since
it was in writing, it was a valid document and can’t be repudiated.

But there were divergent views a few years later stating that doctrine cannot be used to override
statutory provisions. Finally in 1929, the Transfer of Property Act was amended and the
English law of part performance became a part of Indian Laws though a little modified.

The law contained in Section -53 A of the Act is almost same as laid by Privy Council in
Mohammed Musa’s case, which had applied the English equity of part-performance with
certain restrictions. The law incorporated in TPA is more restricted than English equity in two
respects. Firstly, in England the equity protects the interest of also such defendant who has

5
Ibid 5
6
(1914) 42 Cal. 801

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taken possession on the basis of oral agreement, whereas under Section – 53-A, the agreement
must be written. Secondly, in England the equity gives also a right of action against the evictor,
but Section – 53-A gives no such right.

SCOPE OF SECTION – 53-A

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.

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.

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 LIMITATIONS OF SECTION – 53 – A

AVAILABLE ONLY AS A DEFENCE

The Privy Council in Probodh Kumar Das v. Dantmara Tea Co.7. has 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.8

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. Following Probodh Kumar, the
Supreme Court again in Delhi Motor Company v. U.A.Basrurkar9 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.

This Section does not confer title on the defendant in possession; and he cannot maintain a suit
on title. 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. 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.”

7
AIR 1940 PC 1.
8
AIR 1977 SC 324.
9
AIR 1968 SC 794.

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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. 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. It also applies to usufructuary mortgages
and mortgages with possession.
It however does not apply to a family agreement which does not involve a transfer of
property, or to a partition which is not transfer at all. 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.
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.

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. The question of proviso does not arise until and unless
the claimant has substantiated his claim under the main part of this Section. 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. This was so held prior to the enactment of Section 53A.

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WHEN IS DOCTRINE OF PART-PERFORMNACE NOT AVAILABLE

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.

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 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.

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 BIBLIOGRAPHY
1. Singh Avtar, The Transfer of Property Act, Universal Law Publishing Co. Pvt. Ltd.,
Delhi, 2005

2. Sinha R.K., The Transfer of Property Act, 12th ed, Central Law Agency, Allahabad,
2011

3. https://nitimanthan.in

4. https://lawtimesjournal.in

5. https://indiankanoon.org

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