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The Doctrine of Part Performance is an equitable principle designed to prevent fraud and unlawful exploitation resulting from the non-registration of a document. This doctrine operates under the maxim that equity regards an action as if it has been done, which should have been done.

Essentially, the doctrine states that the transferor or any party claiming through them is barred from enforcing any rights against the transferee and those claiming under them, regarding the property that the transferee has taken possession of or continued to possess, except for rights explicitly provided for in the contract terms.

What is the Doctrine of Part Performance under Section 53A?

The Doctrine of Part Performance is a legal principle recognised in property law. It is a doctrine that allows for the enforcement of an oral or incomplete written contract to transfer immovable property if certain conditions are satisfied. It is based on the principle of equity and aims to prevent injustice and fraud resulting from non-compliance with formal requirements such as registration.

Under the Doctrine of Part Performance, if a person has taken possession of a property and has performed acts in furtherance of a contract for the transfer of that property, they may be protected and allowed to enforce their rights to the property. This is applicable even if the contract is not in compliance with the formal requirements of the law. This doctrine serves as an exception to the general rule that contracts for the transfer of immovable property must be in writing and registered.

The Doctrine of Part Performance in  The Transfer of Property Act, 1882

The definition of the doctrine of part performance is incorporated in Section 53-A of The Transfer of Property Act, 1882.

The section states:

“When any person contracts to transfer for consideration any immovable 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 where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law time being in force, the transferor or any 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 a right 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.”

Illustration:

Consider a scenario where A enters into a contract with B to sell his immovable property and allows B to take possession of the property even before the formal sale deed is executed. This contract is considered partially performed. 

However, if A later refuses to fulfil his obligation of executing the proper sale document and instead files a lawsuit against B, treating B as a trespasser and seeking eviction, B can oppose A’s claim. B can argue that the contract of transfer in his favour has already been partially performed and A should not be allowed to backtrack on his own agreement.

Ingredients of Section 53-A for Doctrine of Part Performance

In the case of Kamalabai Laxman Pathak v. Onkar Parsharam Patil, the Bombay High Court has emphasised the requirements outlined in Section 53-A for the application of the Doctrine of Part Performance. These requirements are as follows:

Contract for Transfer of Immovable Property

The first condition for the application of the Doctrine of Part Performance is the existence of a contract for the transfer of immovable property in exchange for value.

Written Contract

The contract must be in writing. If the contract for transfer is oral, Section 53-A does not apply. In the case of V.R. Sudhakara Rao v. T.V. Kameswari, it was ruled that the benefits of Section 53-A cannot be claimed by a person who possesses property based on an oral agreement of sale. It is not sufficient for the contract to be in writing; it must also be duly executed, meaning it should be signed by the transferor or someone on their behalf.

Valid Contract

Section 53-A only applies to contracts that are valid in all respects. The agreement must be enforceable by law under the Indian Contract Act, 1872.

Immovable Property

This section applies solely to the transfer of immovable property. It does not extend to agreements for the transfer of movable property, even if supported by consideration. The defence of Part Performance is not available in relation to the possession of movable property (Hameed v. Jayabharat Credit & Investment Co. Ltd and Ors.).

Transfer for Consideration

The requirement for the application of Section 53-A is a written contract that involves the transfer of immovable property in exchange for consideration. The written contract, which serves as the basis for the possession of the property, must clearly indicate the intention to transfer the property. If the document is vague or unclear, Section 53-A cannot be applied. It is crucial that the terms of the written contract can be determined with reasonable certainty (Hamida v. Humer and Ors.).

Possession in Furtherance of Contract

In order to invoke Section 53-A, the transferee must have taken possession of the property or continued to possess it as part performance of the contract. Alternatively, the transferee must have undertaken some action that advances the execution of the contract (A.M.A Sultan (deceased by LRs) and Ors. v. Seydu Zohra Beevi).

Some Act in Furtherance of the Contract

Taking possession alone is not the only method of part performance. If the transferee is already in possession of the property, they must perform some additional act in furtherance of the contract after its execution (Nathulal v. Phoolchand).

The Willingness of Transferee to Perform their Part of the Contract

Section 53-A is rooted in the principle of equity, which states that one who seeks equity must do equity. Therefore, for a person to claim the protection of their possession under Section 53-A, their own conduct must be fair and just. It is an essential requirement for the applicability of this section that the transferee demonstrates a willingness to fulfil their obligations under the contract (Sardar Govindrao Mahadik and Anr. vs. Devi Sahai and Ors Govind).

Scope of Doctrine of Part Performance

The Doctrine of Part Performance applies solely to written and valid contracts. It does not extend to oral or void agreements. The contract must be in writing and signed by the transferor. The transferee must have taken possession of the property as part performance of the contract and they must be prepared and willing to fulfill their obligations. 

This section is applicable not only to contracts of sale but also to any contracts involving the transfer of property for consideration. It has been established in the case of Jacobs Private Limited vs. Thomas Jacob that the doctrine is intended to be used as a defensive measure rather than an offensive one.

The Exception to Doctrine of Part Performance

The proviso to Section 53-A of Transfer of Property Act includes an exception in favour of a transferee for consideration who has no knowledge of the contract or its part performance. This implies that a transferee who acquires the property for consideration without any knowledge of the contract or its execution is not affected by this rule.

Any rights the transferee may have against the transferor under this section would not be enforceable against a bona fide transferee for value who has no knowledge of the previous transaction.

In the case of Hemraj v. Rustomji, the Supreme Court held that the proviso to the section protects the rights of a transferee for consideration. In other words, any rights that the transferee may have based on the unregistered document and the part performance of the contract would not be enforceable against a bona fide transferee for value who had no knowledge of the prior transaction. The burden of proof lies on the person claiming the benefits of part performance to demonstrate that the subsequent transferee had knowledge of the previous transaction.

The Supreme Court has ruled that the right under Section 53-A is not defeated by the fact that the time for filing a lawsuit for specific performance of the agreement of sale has expired or that the claim of acquiring title through adverse possession has been rejected, which renders the possession illegal.

The principle established in Walsh v. Lonsdale states that Section 53-A incorporates three principles of equity:

(i) One who seeks equity must act equitably.

(ii) Equity considers the intention rather than the form.

(iii) Equity treats as completed what should have been completed.

FAQs

Q1. Who can utilise the doctrine of part performance?

Ans. As per Section 53A, the defendant can utilise the doctrine of part performance as a mere defence to safeguard their possession. This section cannot be used by the defendant as a means to establish their claim or title to the property based on a written agreement.

Q2. Is part performance an equitable doctrine?

Ans. Part performance is indeed an equitable doctrine and it encompasses elements of fairness. The doctrine originated due to incorrect interpretations of the Statute of Frauds and its subsequent laws.

Q3. What conditions must be fulfilled before the doctrine of part performance can be applied?

Ans. The doctrine of part performance is a crucial provision within the Transfer of Property Act. To invoke this doctrine, certain conditions must be met. The person must have entered into a contract for the transfer of immovable property in exchange for consideration, as prescribed by statutory provisions. The transfer must be in writing and duly signed by the transferor or their representative.

Q4. Can you provide an example of the doctrine of part performance?

Ans. An example of the doctrine of part performance would be a situation where there is a contract to transfer immovable property from A to B and B is put in possession of the property even before the execution of a formal sale deed. If A later refuses to complete the sale by executing the necessary document and instead initiates an eviction case against B, the contract is considered to have been partially performed.


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