53A.

Part performance
--Where 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 [...]17 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.

(1) History of the Section

This section was first enacted in 1929 by the Transfer of Property (Amendment)
Act 1929, and imports into India a
modified form of the equity of part-performance as developed in England in
Maddison v Alderson .18 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.19 Recently, para 4 of s 53A has been amended by s 10 of the
Registration and Other Related Laws
(Amendment) Act 2001 (Act 48 of 2001) whereby the words 'the contract,
though required to be registered, has not
been registered, or' has been omitted.

The following postulates are sine qua non for basing a claim on s 53A of the TP
Act:
(i) There must be a contract to transfer for consideration any immovable
property.
(ii) The contract must be in writing, signed by the transferor, or by someone on
his behalf.
(iii) The writing must be in such words from which the terms necessary to
construe the transfer can be
ascertained.
Page 336
(iv) The transferee must in part performance of the contract take possession of
the property, or of any part
thereof.
(v) The transferee must have done some act in furtherance of the contract.
(vi) The transferee must have performed or be willing to perform his part of the
contract.21
In view of the amendment by the Amending Act of 2001, another requirement
would be that the document containing
contract for transfer of immovable property, if executed on or after the
commencement of the Registration and Other
Related Laws (Amendment) Act 2001, ie, 24 September 2001, has been
registered.

Amendment in the Specific Relief Act

The amending Act also inserted a new section, s 27A, in the Specific Relief Act
1881, providing that a party may sue
for the specific performance of a contract in writing to lease immovable
property, even though it is not registered, if he
has acted in part-performance of the agreement. This amendment was wider
than s 53A, for the section enacts an equity which is only available as defence.

If a plaintiff was in possession under a lease

(which would otherwise be inadmissible for want of registration), he could put
the lease in evidence, and sue upon it for
specific performance treating it as a contract, or to show the character and
nature of the possession of the defendant.32
Whether a contract could be specifically enforced was not a relevant factor in
granting relief under this

section.33Section 27A is not re-enacted in the Specific Relief Act 1963.

Protection of s 53A would be available to the
vendee till his suit for specific performance of contract is disposed off finally.34
The amending Act of 2001 has not
made any amendments in the Specific Relief Act 1963.

The mortgagee cannot claim a right higher than what is provided in the ultimate
document agreed to be executed, by
invoking s 53A. In the case of an agreement to execute a mortgage for a definite
period under which possession was
handed over to the defendant, if the conditions of s 53A are satisfied, he will be
entitled to get all the rights under the
mortgage which are agreed to be executed, but cannot claim to continue in
possession after the expiry of that period
relying on s 53A. The general law of mortgages or the rights and liabilities of
the mortgagor and mortgagee are not
modified by s 53A.57