Doctrine of part performance

 INTRODUCTION
The doctrine of part-performance also known as “equity of part-performance” says that 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 the contract, then, he would not be
ejected from the property on the ground that the sale was unregistered and the legal title has
not been transferred to him. This Doctrine is based on the maxim, Equity look at as it is done
which ought to have been done.
 HISTORY OF DOCTRINE OF PART-PERFORMANCE IN INDIA
The doctrine of part-performance was evolved by the Court of Equity in England. In 1677, a
statute was enacted in England known as the Statute of Frauds, 1677, to prevent the
perpetuation of fraud in the transfers of land.
The doctrine of part-performance was firmly established in England in the case of Maddison v
Alderson in which Lord Selbourne observed:
In a suit founded on part-performance, the defendant is really charged upon the equities
resulting from the acts done in execution of the contract and not upon the contract itself. If
such equities were excluded, the injustice of a kind which the statute cannot be thought to
have had in contemplation would follow.
 The doctrine of Part-Performance under section 53A of Transfer of Property Act
The doctrine of part-performance was incorporated in section 53A by the Amending Act of
1929. Now this doctrine does not merely give rise to equity as in England. It creates a statutory
right. However, this right is limited than the English equity in two ways.
First, according to it, the contract must be in writing and it is available only as a defense.
Second, The Supreme Court observed that the protection provided under section 53A is a shield
only against the transferor. It disentitles the transferor from disturbing the possession of the
proposed transferee who has been put into possession under the agreement. It has nothing to
do with the ownership of the transferor who remains the full owner of the property till it is
legally conveyed by executing a registered sale deed. Thus, it may be said that section 53A is a
partial importation into India of the English equitable doctrine of part-performance.
 Essential Requirements of section 53A of Transfer of property Act
(1) There must be a contract to transfer an immovable property for consideration.
(2) The contract should be in writing and its terms can be ascertained with reasonable certainty.
(3) The transferee should have taken possession of the property in part performance of the
contract or if he is already in possession, should have continued in possession in part
performance of the contract, and should have done something in furtherance of the contract.
(4) The transferee is ready and willing to perform his part of the contract.
Section 53A creates benefits in favor of a person who has a prior agreement in his favor along
with the possession of land mentioned in the agreement. The section creates a bar against the
original owner or any person claiming title under him, for claiming any right of title or interest
qua land mentioned in the agreement.
Therefore, if his possession is threatened, it is only the injunction suit that can be filed by the
person claiming the benefit of the section. His remedy is not limited to taking defense in case a
suit is filed against him. He can be a proper plaintiff also if he shows and proves the
requirements of the section along with registration. The protection provided by the section
deals with the mixed questions of facts as well as law.
 Exception
The proviso to the section contains an exception in favor of a transferee for consideration who
has no notice of the contract or of part-performance thereof. This means that the transferee for
consideration having no notice of the contract or its performance is not affected by this rule.
Any right which the transferee may have against the transferor under this section would not be
of any avail against a bona fide transferee for value having no notice of the transaction.
The Supreme Court held in Hemraj v Rustomji, that the proviso to the section saves the right of
a transferee for consideration, i.e., any rights which the transferee under the unregistered
document may have on the strength of the part-performance of the contract against the
transferor would not be of any avail against a bona fide transferee for value having no notice of
the previous transaction. The burden of proving that the subsequent transferee had notice lies
on the person claiming the benefit of part-performance
The Supreme Court has held that the right under section 53A is not defeated by the fact that
the suit to seek specific performance of the agreement of sale has become time-barred, or that
the plea of acquisition of title by adverse possession has been negative which rendered the
possession to be illegal.
 The principle laid down in Walsh v Lonsdale
It says, Section 53A incorporates three principles of equity—
(I) He who seeks equity must do equity.
(ii) Equity looks to the intent rather than to the form.
(iii) Equity treats that as done which ought to have been done.
  Purpose of Doctrine of Part Performance under Section 53A of TPA, 1882:
The aim of incorporation of Section 53A in 1929 is to prevent fraud and injustice. The doctrine
of part performance has its root in the principles of equity, justice and good conscience. It
would be grave injustice if there is no remedy for the party who has performed his/her part of
the contract in the confidence that the other party would also perform his part of the contract.
Section 53A of TPA, 1882 is a defensive provision. The defendant who has been ejected from an
immovable property can use section 53A as a defense to protect his lawful possession if all the
requirements of this section are fulfilled. So, the main purpose of section 53A is to act as a
shield for the defendant.
 Comparison between English Law and Section 53A of TPA, 1882 Regarding Doctrine of
Part Performance:
The doctrine of part performance under English law can be applied to oral contracts out of
Statute of Frauds in contrast, under section 53A of TPA, 1882 this doctrine can be applied only
to a document registered under Registration Act, 1908 and TPA, 1882. Under English law it is
not necessary that the contract must be in writing. Under English law the doctrine of part
performance is an active equity and the person in possession can enforce in an independent
suit for further proceedings. In English law the person invoking the doctrine of part
performance can use it to declare his title in the property. Under section 53A doctrine of part
performance can be used by the defendant merely as a shield to protect his/her possession.
The defendant cannot use this section as a weapon to establish his/her claim or title in the
property in furtherance of a written agreement. Under section 53A it is a statutory right for
safeguard of possession on the contrary, under english law it is an equitable right. Unlike
English law section 53A confers no right of action.
Thus, the equitable doctrine of part performance of England has been partially incorporated in
Section 53A of TPA, 1882.
 Scope of Applicability of Doctrine of Part Performance under Section 53A, TPA, 1882:
Prior to 1929 the doctrine of part performance was inapplicable in this sub-continent. By the
amending Act of 1929 section 53A has been inserted in TPA, 1882. After 1929, under section
53A a person was able to defend his possession under a contract although the contract under
which he holds possession is not registered as required by the law. By virtue of the amendment
brought about to Section 53A in 2004 with effect from 1st July, 2005 by the Act 26 of 2004, at
present section 53A will be applicable only to a contract which is duly registered under section
17 of Registration Act, 1908. An unregistered contract will not entitle the defendant to protect
his possession by invoking section 53A of TPA, 1882.
The defendant can rely on this doctrine only when the contract is proved to be genuine and
duly registered. This section is not applicable to oral contracts. This section is also inapplicable
in respect of a contract which is void ab initio.
A subsequent bona fide transferee for value without notice of the original contract is protected
under section 53A of TPA, 1882. A bona fide purchaser for consideration is entitled to hold
his/her title against the party who is trying to defend his possession by invoking the doctrine of
part performance