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Introduction

The Doctrine of Past Performance, based on principle of equity, developed in England and was
subsequently added to the Transfer of Property Act, 1882 via the Amendment Act of 1929. 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.
The general ground upon which the doctrine is based is prevention of fraud. It is said that where
one party has executed his part of the agreement in the confidence that the other party would do
the same, it is obvious that, if the latter should refuse, it would be a fraud upon the former to
suffer this refusal to work to his prejudice
Under this doctrine, if a person has taken possession of an immovable property on the basis of a
contract then, he would not be ejected from the property on the ground that the sale was
unregistered and legal title had not been transferred to him. For instance, there is a contract of
sale of a piece of land between A and B. The contract is in writing, stamped, attested and duly
executed but not registered by A who is the seller. B, who is the purchaser has performed or is
willing to perform his part of contract, i.e. has paid the price or is willing to pay the same. On the
basis of such contract B takes possession of the land. Now, A sells the land through a registered
deed to C. C having legal title of the land attempts to eject B. At this stage, B has no legal title,
law may not protect his possession but, equity shall help him from being dispossessed. The
doctrine of part performance is, therefore, based on the maxim : Equity looks on that as done
which ought to have been done. That is to say, equity treats the subject matter of a contract as to
its effects in the same manner as if the act contemplated in the contract had been fully executed,
from the moment the agreement has been made, though all the legal formalities (e.g., of
registration) of contract have not been yet completed.

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History of the doctrine of part performance


Under the English law, the equity of part-performance was developed by the Chancery Courts
against the strict provisions of the Statute of Frauds, 1677. Section 4 of this Act provides that all
agreements in respect of transfer of lands must be in writing. Under this provision, the transfer of
immovable property on the basis of oral agreement was illegal and transferee could not get title
in the land. Although, the statute of frauds was enacted to avoid fraud being played in the
transfer of lands on oral agreements, but strict application of this law created great hardship to
such transferee. In this way, a bona fide transferee who performed his part of contract by paying
the price in full or in part and who had also taken possession of land could not get title merely
because of the absence of legal formalities; Such transferee were helpless and were being
harassed. Equity then came to their help. Chancery Courts, which were the courts of equity, held
that part-performance by such transferees would take their cases out of the Statute of Frauds.
Thus, equity protected the interests of those transferees who held lands on the basis of oral
contracts and had performed their part of contract. 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 in contract in good-faith and the transferor attempted to harass
them on the ground of technical defect in the contract.
PRINCIPLE LAID DOWN IN MADDISON V. ALDERSON
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 thus able to recover the said property. Lord
Selbourne said :
In a suit founded on such 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, injustice os a kind which the statute cannot be thought to have had in
contemplation, would follow.
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Part Performance in India before 1929


Before1929, the application of English equity of part performance was neither certain nor
uniform. However in 1914, the Privy Council in Md. Musa v. Aghore Kumar Ganguly1, held that
the doctrine of part performance was applicable in India based on the principle of justice, equity
and good conscience. In this case, a compromise deed (razinamah) was in writing, but not
registered. According to the deed, certain lands were divided between the parties who had taken
possession of their respective parts of the land. The parties remained in possession for many
years and about 40 years later, the heirs of the parties repudiated the compromise deed on the
ground that it was not registered. The privy council applied the doctrine English equity of part
performance and held that although the razinama was unregistered but, since it was in writing, it
was a valid document and could not be repudiated. This decision by pass the provisions of Indian
Registration Act, 1908 under which it was provided that a document required to be registered
under this Act but not registered shall not be valid document of transfer of rights in immovable
property.
But, later on, in Ariff v Jadunath2 and Mian Pir Bux v Sardar Mohammad Tahir 3, it was held that
doctrine of part performance could not be applied in India to over ride and by pass the express
provisions of Indian Registration Act and Transfer of Property Act.
Section 53A was first enacted in 1929 by the Transfer of Property (Amendment) Act 1929, and
imports into India a modified form of equity of part-performance as developed in England in
Maddison4. The enactment of the section sets at rest the considerable uncertainty prevailing in
Indian law as can be seen by three decisions of the Privy Council. 5Section 53A 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
1 (1914) 42 Cal. 801: AIR 1914 PC 27:42 Ind App 1
2 AIR 1931 PC 79
3 AIR 1934 PC 235
4 (1883) 8 App Cas 467.
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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 defense to a
person who has no registered title in his favor to maintain possession.

5 Mahomed Musa v. Aghore Kumar Ganguli, (1914) ILR 42 Cal 801; Ariff v. Jadunath, AIR 1931 PC 79;
Mian Pir Bux supra note 2.
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Amendment of Section 53-A Transfer of Property Act and other enactments


An amendment has been made in Section 53-A of the Transfer of Property Act by the
Registration and other Related Laws Act (48 of 2001). This Amending Act has made the
following amendments relating to Section 53-A.
1. In Section 53-A, para 4 of the Transfer of property Act the words the contract, though
required to be registered, has not been registered, or omitted.
2. In section 17 of the Registration Act, (a) after sub-section (1), the following sub-section
shall be inserted :
(1A) The documents containing contracts to transfer for consideration, any immovable
property for the purpose of Section 53-A of the Transfer of Property Act, 1882 shall be
registered if they have been executed on or after the commencement of the Registration
and other related laws (Amendment) Act, 2001 and if such documents are not registered
on or after such commencement, then, they shall have no effect for the purposes of the
said Section 53-A.
3. In Section 49 of the Registration Act, in the proviso; the words, figures and letter or as
evidence of part performance of a contract for the purposes of Section 53-A of the
Transfer of property Act, 1882 (4 of 1882), shall be omitted.
4. The provisions of this Amending Act came into force with effect from 24-09-2001. This
Amendment Act is not retrospective.

Legal Effects Of The Amending Act In Section 53-A


In para fourth of Section 53-A of the Transfer of Property Act, the words the contract though
required to be registered, has not been registered has now been omitted. This may mean to
suggest that non-registration of any contract to transfer for consideration is not any relevant
factor (i.e., not necessary) for the application of part-performance under this section; and, the
defence of part-performance is available also on the basis of an un-registered document. But, this
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is not the case. The same amending act has simultaneously amended Section 17 and Section 49
of the Registration Act. Therefore, the amendment in Section 53-A should be read together with
amendments in Section 17 & Section 49 of the Registration Act. In section 17 of the Registration
Act, a new clause has been inserted (17-A), which provides that written documents of the
transfer of an immovable property with consideration (e.g. for sale) must be registered for the
purposes of Section 53-A of the T.P Act; and, if such documents are not registered then they shall
have no effect for the purposes of Section 53-A of the Act. Thus, an obvious meaning of these
amended provisions of Section 53-A of the T.P Act and that of Section 17-A of the Registration
Act is that Section 53-A shall not be applicable and the defence of part-performance cannot be
available on the basis of un-registered documents which are executed on or after 24.09.2001, the
date of enforcement of the amending Act 48 of 2001. Therefore, the contract of the transfer of
immovable property with consideration as provided in Section 53-A is now compulsorily
registrable document.
Further, it is to be noted that by inserting Section 17-A, the Registration Act has made an
exception to the settled substantive law with regard to the written contracts affecting immovable
property. The reason is aptly given by Mitra in the following words :
It is settled law that a writing which confers upon a person a right which will come into
existence after fulfillment of certain conditions; does not require registration under Section 17-A.
For example, an agreement for sale of an immovable property will not fall under section 17(1)(b)
as it does not create, assign, limit or extinguish any right, title or interest whether vested or
contingent, of immovable property. An exception to this settled law has been made by inserting
sub-section (1A) in the statute.

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Essential Elements

A valid
contract
Has done
some act in
furtherance
to the
contract

Essential
Elements

Contract
should be in
writing and
ascertainable

Willingness
of
Performance
Possession by
Transferee or
Continuance of
Possession

The Supreme Court in Rambahu Namdeo Gajre v. Narayan Bapuji6, held that the doctrine of part
performance aims at protecting the possession of such transferee provided that certain conditions
are fulfilled. Following are the essential elements/ mandatory conditions required to be fulfilled
for the applicability of Section 53A:
i

There must be a contract to transfer an immovable property for consideration: The contract
should be for the transfer of immovable property for consideration only. For example; gift is a
6(2004) 8 SCC 614
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transfer without consideration, thus the doctrine of part performance will not apply in those
cases. The terms are ascertainable with reasonable certainity; it must clearly show that there is
a transfer of property under the contract.7
The transfer must be for consideration. Section 53-A is applicable where the contract is for
sale or for lease. The section is applicable also to mortgages with possession. It doesnt
applies to transfers made for gifts.
ii

Contract should be in writing and Ascertainable and with Reasonable Certainty: It was held in
Govind Prasad Dubey v. Chandra Mohan Agniotri 8 that contracts entered between should be
in writing and such that the terms of the contracts can be ascertained with reasonable
certainty. Thus if the terms of the contract cannot be ascertained with reasonable certainty then
this section cannot be enforced. Where a tenant wanted to defend his possession on the ground
that there was an oral agreement of sale with his landlord, the Court held that plea of part
performance is not available to him because written contract is must for applicability of
Section 53-A.
In S. Veerabadra Naiker v. Sambanda Naiker,9 the party claiming protection under Section 53A, could neither produce any written agreement nor any evidence of his possession over the
suit property. The documents could not prove that he was ever ready and willing to perform
his part contract. The Madras High Court held that he was not entitled to protection under
Section 53-A against third party purchaser of the suit property.
Writing alone is not sufficient. The contract must also be duly executed. That is to say, it
should be signed by the transferor or by any other person on his behalf. The person who signs
on his behalf must be a person who is authorized by him to sign the document. Therefore, it is
necessary that the contract is either actually signed by the transferor or is signed by a person
who has been specifically authorized to sign on behalf of the transferor and whose signature
7 Hamida v. Humer, AIR 1992 All. 316.
8 AIR 2009 MP 159 (DB)
9 AIR 2003 Mad. 19
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can bind the transferor.

Important Case law


Serandaya Pillai v. Sankaralingam Pillai10
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 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.
10(1959) 2 Mad LJ 502 (506)
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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.
iii

Performance of Contract by Transferee, Transfer of Possession or Continuance in Possession:


This requirements stipulates that the transferee either must have taken the possession of the
property after the contract is made or if he is already in possession of the property, he must
have continued in possession. If the transferee has not taken the possession of the property,
this section shall not be applicable. It is to be noted that this section requires that the transferee
has taken possession of the property. It is irrelevant as to whether the vendor himself has
given the possession or not. Therefore, it is not necessary that the vendor himself should have
delivered the possession of the property.11
The condition is that the transferee has taken possession in furtherance of or in partperformance of contract. Where the transferee has once taken possession of the property, the
fact that subsequently he lost that possession cannot deprive him of his rights under Section
53-A.12
The transferee need not be in possession of the whole property mentioned in the contract of
sale. If the transferee takes possession or continues his possession even on a part of that
property, it is sufficient to give him the benefit of this section.13

iv

Willingness of performance: The transferee should be ready and should be willing to perform his
part of the contract for the applicability of the contract. Section 53-A is based on equity.
Equity says that one who seeks equity must do equity. Therefore, where a person claims
protection of his possession over a land under Section 53-A, his own conduct must be
11 Nagar Khan v. Gopi Ram, AIR 1976 Pat. 83.
12 Achayya v. Venkata Sabha Rao, AIR 1957 AP 854.
13 Durga Prasad v. Kanhiya Lal, AIR 1929 Raj. 200.
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equitable and just. It is an essential condition for the applicability of this section that the
transferee must be willing to perform his part of contract. Equity of part-performance which is
incorporated in this section cannot favour a transferee who is not ready and willing to do what
is required from him. Accordingly, a vendee who has taken possession of the property, cannot
protect his possession under this section if he is not willing to pay the price agreed upon.
The transferee must himself be willing to perform his part of the contract, for no equities can
arise in favour of a person who is not willing to perform his part of the contract. Accordingly,
a person who has taken possession cannot resist dispossession if he is not willing to pay the
price agreed upon.
Willingness to perform the part ascribed to a party must not be conditional. In Jacob Private
Ltd. v. Thomas Jacob,14 the Kerela High Court held that such willingness in the context of
Section 53-A of the T.P Act must be absolute and unconditional. If the willingness is studded
with a condition, it is in fact no more than an offer and cannot be termed as willingness. The
court observed that where the vendee company expresses its willingness to pay the amount
provided the plaintiff clears his income-tax arrears, there is no complete willingness and such
a conditional willingness is not sufficient to arm the company with the shield provided by
Section 53-A of the T.P Act.
Important case law
Srimant Shamrao Suryavanshi and Anr. v. Prahlad Bhairoba Suryavanshi 15
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 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.
14 AIR 1995 Ker. 249.
15(2002) 3 SCC 676
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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.
In this case, all the requirements of Part Performance were complied with and the transferee was
able to prove that he was willing to perform his part of the contract which fulfils the essential of
performing some act in furtherance of a contract, either in taken possession or in continued
possession of the property.
The court in this case allowed the appeal as it was not disputed that the appellants were willing to
perform their part of the contract.
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.

Some Act in furtherance of contract.- Taking possession is not the only method of partperformance of contract. If the transferee is already in possession of the property then, after the
contract of transfer, he has to do some further act in part-performance of that contract. In order
to attract the provisions of Section 53-A, if the defendant has been in possession of property, he
must have done something more in pursuance of the contract. For example, where transferee
was already in possession of the property, payment of an increased rent under the terms of new
agreement or, part-payment of the price where property is agreed to be sold to a mortgagee in
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poseesion, is a further act in part-performance of the agreement.


It is also necessary that the act done is only in furtherance of a pre-existing valid contract. There
must be direct co-relationship between the contract and act done, in its furtherance.
There must be a real nexus between the contract and the acts done in pursuance of the contract
and must be unequivocally referable to the contract. Anything done in furtherance of the contract
postulates the pre-existing contract and the acts done in furtherance thereof. Therefore, the acts
anterior to the contract or merely incidental to the contract would hardly provide any evidence of
part performance.

Important Case law


Babu Murlidhar v. Soudagar Mohammad Abdul Bashir and Anr16
FACTS: In this case, an unregistered agreement of sale was executed by the mortgager, Plaintiff
in favour of the mortgagee, Defendant who was in possession of the property and would become
the owner of the property if his name could be mutated into the mutation register of the
municipality. The mortgager himself, in furtherance of the agreement to sale made an application
for mutation to municipal authorities and mortgagees name was registered as the owner of the
property.
ISSUE: Can the Mortgagee defendant avail the defence of Part Performance in this case?
HELD: An act should be done by the transferee in furtherance of the contract to transfer of
property in order to avail the defence of part performance.
Since, the mortgagee himself made an application for the mutation of the documents to the
municipal authority and that the mortgagees name was duly registered as the owner of the
property, it was thus an act done in furtherance of the agreement to sale. Since, all the
requirements of the part performance were fulfilled and that it was clear that the mortgagee had
done some act in furtherance of the agreement to sale, thus, the court said that the mortgagee can
avail the defence of part performance.
16AIR 1970 Mys 203
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The Court held that this act was sufficient enough to protect the mortgagee under Section 53A of
the transfer of property Act, 1882 as there was some act done in furtherance of the contract to
sale which was sufficient enough to put the mortgagee on the protection.
Thus, the court in this case thus, dismissed the petition.
As per the provision, there must be some act done in furtherance of the contract, only then shall
the defence of part performance can be availed. And, in this case, the mortgagee by filing for the
mutation of the documents in his name had done an act, sufficient enough to prove that the act so
done was in furtherance of the contract. Thus, the court by providing him relief of protecting his
right to possession over the property had right done the justice.
Important Case Law
Govindrao Mahadik v. Devi Sahai17
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.
FACTS: The original Plaintiff 1, Sardar Govendrao Mahadik (Mortgagor), mortgaged a property
to sole defendant Devi Sahai (Mortgagee) at some rate of interest annually. The mortgage was a
mortgage with possession. The mortgagor on Oct. 5, 1945 served a notice to the defendant to
show the full accounts of the mortgage, of which the mortgagee failed to provide. Subsequently,
some negotiations took place between the two and the property was sold to the mortgagee but the
sale deed for the same could never be registered. On the other hand, the mortgagor sold the
property to the Plaintiff 2, Gyarsilal (Subsequent purchaser) via a registered sale deed.
Thereafter, both the plaintiffs filed a suit against the defendant for the redemption of the
property. The mortgagee at that time was already in possession of the property.
ISSUE: Can the mortgagee gain the benefit of Section 53A of the Act?
17AIR 1982 SC 989
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HELD: The Court held that the mortgagee was not entitled to the benefit under Section 53A and
that he could not possess that property. This was due to the fact that the mortgagee could not
prove that he has performed any act or is willing to perform any act in furtherance of the
contract. Since, the mortgagee was already in possession of the property, the mere possession of
the property would render any result to the transferee. He needed to prove something
independent of the mere possession of the property and an act done in furtherance of the
contract, as the court shall not take any the mere act of continuing in possession of the property
as evidence enough to provide the defence to the transferee. The mortgagee could not prove that
he did any act in furtherance of the contract, thus he was held not entitled to possession over the
property.
In this case, the judgment set a good precedent over when the transferee can avail the right over
the property. Mere already in possession of the property is not enough as the person may be in
possession of the property pursuant to any other prior encumbrances. The mere possession of the
property is enough and a strong evidences when the mortgagee or the transferee is for the first
time taking the possession of the property and not when he is already in possession of the
property. Thus, an independent act than a mere possession of property was required to proved in
such case. In the present case, the mortgagee failed to do so and thus the decision of the court to
not to provide him with the defence under Section 53A of the Act was justified.

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Nature Of Transferees Rights Under Section 53A


No title or Interest in the Property- Section 53A does not confer any title or interest on the
transferee in the property in his possession. It only specifies where the conditions of this
section are fulfilled, the right of the transferee in respect of the property in the possession will
be protected. The transferor or anyone claiming under him will not be able to evict from the
property because he can raise the plea of part-performance and this section will come for his
protection.
No Right of Action: Section 53A can be only used for defence. It does not give any right of
action to the transferee. The transferee can only defend his eviction in case he fulfils the
conditions of this section. In India, the equity of part-performance is passive equity, it can be
used only as a shield and not as a sword. Under English law, the equity of part-performance is
also an active equity and gives to the transferee a right of action against his evictor. The scope
of Section 53-A is, therefore, limited because no right of eviction is available to transferee.
Transferee, whether Plaintiff or Defendant? - This section confers on the transferee a right to
defend his possession, whether as a defendant or as a plaintiff, it is not relevant. It was held
according to the various High Courts in Allahabad, Bombay, Andhra Pradesh that the
transferee may also be a plaintiff if it is necessary to protect his possession. 18 But, according to
the Rajasthan, Orissa, Madras and Punjab and Haryana High courts the transferee has to

18 Ram Chandra v. Maharaj Kumar, AIR 1939 All. 611; Achayya v. Venkata
Subbarao, AIR 1957 AP 854.
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protect his possession only as defendant.19


However, the correct view on this point would seem to be that this section gives to the
transferee only the right to defend his possession. So, the main point in this regard is his
defence; it is irrelevant in what capacity he does so.
Who can claim Protection against Whom? The protection under the section can be availed
of by the transferee or any person claiming under him against his transferor or any person
claiming under him but not against a third person with whom he does not have a privity of
contract.

Difference Between English Law And Indian Law On Part Performance


Section 53A has only partially incorporated the English doctrine of Part-performance. The points
of difference between the two are discussed below:

Under the English law, even an oral agreement is sufficient to attract the application of
this doctrine but in India, the contract to which this section applies must be in writing and
signed by the transferor.

Under the English law, this doctrine can be used both as a sword and a shield, i.e. it can
be used for enforcing the right as well as defending the right. However in India, it can be
used only as a shield, i.e. to defend the right of the transferee.

In English law, doctrine of part-performance give rise to an equity but in Indian law, it
gives rise to a statutory right of defence.

Under the English law, the doctrine of part-performance creates a title in the transferee
whereas under the Indian law, it does not create any form of title in the transferee.

This Section does not confer title on the defendant in possession; and he cannot maintain a suit
on title.20 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
19 Motilal v. Jaswant Singh, AIR 1964 Raj. 11; Amrao Singh v. Sanatan Dharma
Sabha, AIR 1985 P& H 195.
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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.
However, it is only in a case of suit for specific performance that the part performance assists
plaintiff. A transferee who has come into the possession of the property in part performance of a
written agreement can continue in possession, if he is ready and willing of perform his part of
agreement. In such a case, it is not necessary that the transferee should have filed a suit for
specific performance within the limitation period prescribed for a suit for specific performance.

Proviso : Transferee For Consideration Without Notice


The proviso to this Section protects the rights of a subsequent transferee for value without notice
of previous transferees 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 partperformance.
For example- A who is owner of a land contracts to sell it to B. The contract is unregistered and
in part-performance of this contract B takes possession of this land. Under this section, the
transferor or any other person cannot dispossess B from the land. But, if A sells the land to C
through a duly executed and registered sale-deed and C has not the least knowledge of Bs rights
of part-performance then, Section 53-A shall not apply. And, B(previous transferee) cannot resist
(subsequent transferee) from evicting B and taking possession of the land.
The purpose of the proviso is to defeat the claim which would otherwise, have succeeded under
the main part of this Section. 21 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
20 S.N.Banerjee v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128.
21 SOLI J SORABJEE, DARASHAW J VAKILS COMMENTARIES ON THE TRANSFER OF
PROPERTY ACT 595 (2nd ed Wadhwa Nagpur 2004).
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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.
Important Case law
S. Parvarthamma v. A. Srinivasan22
FACTS: The appellant in this case was the rentholder of the property and thereafter he entered
into an agreement with the landlord for the purchase of the property, thereby becoming a
prospective buyer of the property. Since, he was already living in that property or was in the
possession of that property, the landlord-tenancy relationship superseded to the prospective
buyer-seller relationship where the appellant became the buyer in possession of that property.
But the disputed fact remained of the agreement to sell made between the original landlord and
the tenant. The original landlord in 1983 sold the land to the respondent via a registered sale deed
and transferred their right, title and interest in the property to the respondent including the suit
premises. Thus, in this case, the respondent here became the subsequent transferee and as per the
law under Section 53A of the Act, nothing in the section shall affect the rights of the transferee
for consideration who has no notice of the contract or the part performance thereof. Thus, the
respondent being the subsequent transferee has the right to protect his property rights under the
section.
The respondent in this case claimed himself to be the owner-landlord of a property seeking
eviction of the appellant which the respondent claimed that he is the tenant of the said property,
and got eviction by the Rent Controller and the judgment was upheld by the High Court.
ISSUE: Whether the appellant can exercise the right under Section 53A of the Act?
HELD: The court in this case dismissed the petition on the following grounds:
1

When the appellant filed a suit for injunction, the suit was dismissed in its entirety. Along
with the suit for injunction dismissed but also the alternative suit filed for specific
performance and monetary relief was also dismissed.

22 (2003) 4 SCC 705


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Secondly, he could not prove that he was in possession of the property in part
performance of the contract. When a person who is already in possession of the property
enters into a contract to purchase the property, he in order to protect his benefit as the
possessor of that property must show that he has done some act in furtherance of the
contract and that the act must be effective from that day must be consistent with the
contract alleged.

Thirdly, with his suit for specific relief getting dismissed, it could not be said that the he
performed or was willing to perform his part of the contract. This is so as the appellant
had not disowned his character as tenant in the suit premises and that there was no
evidence or findings that the appellant was in possession of the property pursuant to the
contract to sale. Also the appellant did not pursue the matter further.

Fourthly, the respondent who became the subsequent transferee had no notice of contract
of part performance. As stated in Section 53 of the Act, the rights of the transferee are to
be protected and taken care of. In no case can the transferees rights over the property be
affected if he had no prior notice of the contract or the part performance. In this case, the
transferee was a bona fide purchaser and had no notice of the contract to sale of the
property.

Thus, the High Court upheld the decision of the Rent Controller and said that the appellant had
no right over the property. The case was held liable to be dismissed and was dismissed by the
High Court.
As per the law, nothing in the Section 53A of the Act shall affect the rights of the transferee, and
and here the Defendant 2 was the subsequent transferee. Hence his rights should be
safeguarded. It has been said that a subsequent transferee can retain the possession of the
property if:
1

He has paid the whole amount

He has done so in bona fide and had no knowledge of the prior contract.

Since, both the above requirements were met, the the Court thus was right in saying that the
appellant had no right over the property and safeguarded the rights of the subsequent transferee.
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Bibliography
BOOKS & STATUTES
Singh Avtar (Dr.), Textbook on The Transfer of Property Act, 3rd ed., Universal Law Publishing
Co., New Delhi, 2013.
Tripathi, G. P. (Dr.), The Transfer of Propert Act, 17th ed., Central Law Publications, Allahabad,
2011.
Mitra B. B., Commentary on Transfer of Property Act, 11th ed., Delhi Law House, Delhi, 2009.
Sinha R. K., The Transfer Of Property ,15th ed., Central Law Agency, Allahabad, 2014.
WEBLINKS
http://www.lawnotes.in/Section_41_of_Transfer_of_Property_Act,_1882
http://lawmirror.com/search/search.php?
q=section+41+transfer+of+property+act.&sel=headnote&page=1

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