PROPERTY LAW FIRST DRAFT

DOCTRINE OF PART PERFORMANCE

Abstract: Property is one of the most fundamental elements of the socio-economic life of
an individual. Hence 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. The objective of part performance is to prevent fraud.

CHAPTER 1
1.1 INTRODUCTION
Section 53A1 of the Transfer of Property Act, 1882 seeks to protect the prospective
transferees by allowing them to retain the possession over the property, against the rights of
the transferors, who after the execution of an incomplete instrument of transfer, fail to
complete it in the manner specified by law, without there being any fault on part of the
transferees. This section therefore provides for a partial importation of the English doctrine
of part performance. It furnishes a statutory defence to a person who has no registered title in
his favour to maintain possession. 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
1Poonam Pradhan Saxena, Property Law (2nd Edition, 2013, LexisNexis) 253.See also,Part
performance.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 2[***] 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 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.

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.
1.1 RESEARCH METHODOLOGY
The present study is analytical, descriptive and qualitative study. Literature for this study has
been collected from various primary as well as secondary sources. Primary sources include
Indian Statutes, Rules, Regulations, judgments of the various High Courts and Supreme
Court, Secondary sources include books of the eminent authors, national as well as
international articles in research journals. On the basis of the present study, suitable
modifications, alterations have been suggested for proper and effective functioning of this
equitable doctrine.
1.2 RESEARCH OBJECTIVE
The objective of the study is to know the extent and scope of Section.53A of Transfer of
property Act,1882 as to any right debarred, which was procured by the transferor in respect
of the property and what kinds of property can be covered within this section and what is
the meaning of taken or continued in possession of the property and to find out the scope
of this provision as provides a statutory right to the transferee against any right of the
transferor to defend his possession over the property, either taken possession or right in
continuance of the possession. Thus, the project will deal with any right of the transferor.
As to the property, the researcher shall also look into the meaning and scope of the word
property and what all can be included in the word property. Also, the phrase taken or
continued in possession will be dealt with in order to establish a reasonable link with the
rights of the transferor and the transferee as any right is only subject to the possession being
taken or

already in possession of the transferee and no other condition also discuss the essential
conditions2 to be fulfilled for the application of this doctrine.

1.3 RESEARCH QUESTIONS:

1. Whether, there is any difference between the English doctrine of part performance
and the Indian doctrine which was brought by the amendment of transfer of property
act?
2. Whether, the doctrine of part performance affects the rights of the transferee?
3. Whether there is a need to perform the condition precedent in order to make the
contract valid?
4. Whether, the doctrine of part performance apply to relinquishment deed and gift
deeds?
CHAPTER 2
COMPARISON OF SEC. 53 A WITH ENGLISH DOCTRINE OF PART PERFORMANCE

1. Whether, there is any difference between the English doctrine of part

performance and the Indian doctrine which was brought by the amendment of
transfer of property act?
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 couldnt 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 couldnt 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
2See, D. S. Parivarthamma v. A. Srinivasan, (2003) 4 SCC 705., essential conditions are i) that 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, ii) that the transferee has performed or is willing to perform his part of the
contract, and that the plea of part performance is not available to be raised against a transferee for consideration
who has no notice of the contract or of the part performance thereof.

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. Longsdale3 and Maddison vs. Alderson4 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. Alderson5
B was As 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.
Walsh vs. Longsdale6
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 years 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.

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

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 Ganguli 7 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 cant 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 Musas 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
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.
TENTATIVE CHAPTERISATION:

7 (1914) 42 Cal. 801

CHAPTER 1
1.1 Introduction
1.2 Nature and scope
1.3 Research methodology
1.4 Research objective
1.5 Research questions
CHAPTER 2:
2.1 Comparison of sec. 53 a with English doctrine of part performance

PRIMARY SOURCES:
STATUES:
The Transfer of property Act,1882
SECONDARY SOURCES:
BOOKS:
1. Darashaw J Vakils, Commentaries on Transfer of Propert Act,1882, Volume 2, 4th
Edition (reprint 2015), Lexis Nexis Butterworths publication.
2. Sir Dinshaw Fardunji Mulla, Transfer of Property Act, 1882, 12th Edition, 2015,
Lexis Nexis Butterworths publication.
3. S.N.Shukla, Transfer of Property Act, 29th Edition, 2015, Allahabad Law Agency.
CASES:
1. Srimant Shamrao Suryavanshi and Anr. V. Prahlad Bhairoba Suryavanshi8,
FACTS: In the present case, the respondents executed an agreement of sale of an agricultural
land in favour of the appellant. The appellants in pursuance of the agreement got the
possession of the property. After the execution of the agreement, the appellant came to know
that the respondent is negotiating for sale with another respondent for which the appellant
8 See,(2002) 3 SCC 676 (The court in this case has rightly applied the doctrine. Here the appellant was able to
prove the willingness to perform his part of the contract which is an important essential. Since, along with this
requirement all other requirements were also proved. Hence, it was the right of the appellant to have the
defence of the doctrine which the court provided).

filed a suit. The appellant filed for injunction and an injunction order was passed in favour of
the appellant, yet the respondent sold the land through a registered sale deed. The transferee
did not bring any suit within the limitation period for specific relief.
ISSUE: Whether the appellant can defend his possession over the land by way of Part
Performance under Transfer of Property Act even after the suit for specific performance for a
contract to sale is barred by limitation?
HELD: Even if the limitation period was over, a person can obtain possession of property in
part performance of a contract to sale; the transferee can defend his possession in case filed
by the transferor. but this can only be done is the transferee can well prove that he has done
some act in furtherance of the agreement or the contract or is willing to perform his part of
the act in furtherance of the contract. This was interpreted so as there was not expressly said
that the plea of part performance cannot be taken once the time limit for filing a suit for
specific performance is expired.
2. Serandaya Pillai v. Sankaralingam Pillai9,
FACTS: A contract was entered into by the plaintiffs and the first and the second defendant to
transfer an immovable property to the first defendant and that the first defendant, in
consideration of the said contract so made for transfer of property, shall marry the second
defendant. The said contract was made orally. The defendants were given the possession of
the said property and the kist to be given was filed in the name of the second defendant for
the years 1948 and 1949.
Later the plaintiffs claimed back the said property saying that the gift was invalid as it was
contrary to the Section 123 of the Transfer of Property Act and Section 17 of the Registration
Act.
ISSUE: Whether the defendants can take the defence of Part Performance under Section 53A
of the Act in the given case and circumstances?
HELD: It was said in the judgment that as per the section, gift, along with sale, lease,
mortgage and exchange require a written contract to take place and that the contract should
9 (1959) 2 Mad L.J 502 (506)

be for a consideration. Clearly, there involves a consideration to be given for the property in a
contract to sale, lease, mortgage, exchange and a gift.
The present act makes writing of the contract necessary for the property of value of Rs. 100
or more as per Section 54 of the Act for the purpose of sale, in case of simple and other
mortgages, a sum of Rs. 100 or above is required to be deposited as per Section 59, in case of
lease extending one year as per Section 107 of the Act, exchanges under Section 118 and
under Section 123 of the Act in case of gifts.
In the present case, the promise to marriage was a consideration for the transfer of property
which was taken as a consideration but since, the there only took place an oral transaction
between the parties and not the contract in writing, thus, it falls within the ambit of Section 9
of the Act. Thus, it is neither a sale nor a mortgage, lease, exchange or a gift. Hence, the
present case could not be said to fall within the ambit of Section 53A of the Act.
3. Govindrao Mahadik v. Devi Sahai10,
The mortgagee in this case failed to prove that he did any act in furtherance of the contract or
that the mortgagee was willing to perform his part of the contract either of which is an
essential to prove the case in favour. The Court held that the mortgagee was not entitled to
the benefit under Section 53A and that he could not possess that property.

BC0140049

10 AIR 1982 SC 989