INTRODUCTION

Property is one of the most fundamental elements of the socio-economic life of an individual.
Juridically, 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.

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 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.

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PART – PERFORMANCE

Section 53A of the Transfer of Property Act provides that “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 […..]1 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 other 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 the rights 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.”

The Section has been described by the Privy Council2, and by the Supreme Court3, as partial
importation of the English of doctrine of part performance. By virtue of this Section part
performance does not give rise to equity, as in England, but to a statutory right.4

1
The words ‘the contract, though required to be registered, has not been registered or’ has been omitted by Section
10 of the Registration and Other Related Laws Amendment Act 2001 (Act no. 48 of 2001) with effect from 24
September, 2001.
2
Mian Pir Bux v. Sardar Mahomed Tahar, AIR 1934 PC 235; AMA Sultan and Ors. v. Seydu Zohra Beevi, AIR
1990 Ker 186.
3
Maneklal Manuskhbahi v. Honnusji Jamshedji, AIR 1950 SC 1; Chaliagulla Ramchandrayya v. Boppana
Satyanarayana, AIR 1964 SC 877; See also Nathu Lal v. Phoolchand, [1970] 2 SCR 854; Sardar Govindrao
Mahadik & anr. v. Devi Sahai and ors., AIR 1982 SC 989.
4
Amrao v. Baburao, (1950) ILR Nag 25. See Hamida v. Smt Humer and ors. AIR 1992 All 346.

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ESSENTIAL CONDITIONS FOR THE APPLICATION OF SECTION 53-A

Analysis of the provisions of Section 53A makes it clear that following essential conditions are
necessary for its application:

a) There is a contract for the transfer of an immovable property. The contract must be
written and it must be for the transfer of an immovable property for consideration. Also,
the contract must be valid in all respects.
b) The second essential is that the transferee has taken the possession of the property or
continues possession in part-performance of the contract or, has done some act in the
furtherance of the contract.
c) When a person claims protection of his possession over a land under Section 53A, his
own conduct must be equitable and just. That is the transferee has either performed his
part of contract or is willing to perform the same.

When the above mentioned conditions are fulfilled, the transferee can defend his continuance of
possession over the property. In other words, if these requirements are fulfilled, the transferee is
entitled to claim, under this Section, that he should not be dispossessed or evicted from the
property.

COMPARISON OF 53 – A WITH ENGLISH DOCTRINE OF PART

PERFORMANCE

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 couldn’t 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
couldn’t 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 of the Statue of Frauds. Since then,

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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. Longsdale5 and Maddison vs. Alderson6 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. ALDERSON

B was A’s 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. LONGSDALE

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 year’s 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.

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.

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

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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 Ganguli7 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 can’t 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 Musa’s 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.

7
(1914) 42 Cal. 801

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SCOPE OF SECTION – 53-A

The following postulates are sine qua non for basing a claim on Section 53 A of the Transfer of
Property Act:

a) There must be a contract to transfer for consideration any immoveable property.

b) The contract must be in writing, signed by the transferor, or by someone on his behalf.

c) The writing must be in such words from which the terms necessary to construe the
transfer can be ascertained.

d) The transferee must in part performance of the contract take possession of the property,
or of any part thereof.

e) The transferee must have done some act in furtherance of the contract.

f) The transferee must have performed or be willing to perform his part of the contract.8

So far as applicability of Section 53A is concerned, what is to be seen is that the Section
provides for a shield of protection to the proposed transferee to remain in possession against the
original owner who has agreed to sell to the transferee, if the proposed transferee satisfies the
other conditions of Section 53A. It doesn’t confer any title or interest to the transferee in respect
of the property in possession. Except the right to continue his possession, no other title or interest
is created is created in favour of the transferee.

TRANSFERS AND AGREEMENTS COVERED BY THIS SECTION

This Section applies to leases and agreements to lease.9 Where an agreement to lease is
evidenced by correspondence, the lessee is put in possession, and there has been acceptance of
rent by the lessor for several years, the Supreme Court held that section was applicable, and the

8
Nathulal supra note 3; Shrimat Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi, AIR 2002 SC 960;
Rambhao Namdeo Gajre v. Narayan Bapuji Dhotra, (2004) 8 SCC 614
9
Maneklal Mansukhbhai, supra note 3.

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lessee could defend the suit for ejection. It also applies to usufructuary mortgages and mortgages
with possession.10

It however does not apply to a family agreement which does not involve a transfer of property11,
or to a partition which is not transfer at all.12 It also doesn’t apply to license or to the transfer of
moveable property.

RIGHT EXPRESSELY PROVIDED BY THE CONTRACT

The transferor may enforce a right which is expressly provided by the contract. So, if the contract
were an agreement of lease not provable for the want of registration, the lessee could resist a
demand for rent. Of he did so, he will be disentitled to the benefit of the Section as not being
willing to perform his part of the contract. so also where a lessee has already put in possession of
certain premises in part performance of an unregistered lease, the lessor can enforce the term of
the lease entitling him to re-enter, if there default in payment of six months’ rent.13

Similarly, if the unregistered lease was only for a term, there would be no right to continue in
possession after the expiry of the term.14

PROVISO: TRANSFEREE FOR CONSIDERATION WITHOUT NOTICE

The proviso to this Section protects the rights of a subsequent transferee for value without notice
of previous transferee’s 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 part-
performance.

The purpose of the proviso is to defeat the claim which would otherwise, have succeeded under
the main part of this Section. The question of proviso does not arise until and unless the claimant

10
Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81; Rami Reddi v. Venkat Reddi, AIR 1963 AP 489.
11
Jileba v. Marmersa, AIR 1950 All 700.
12
Rashakretayya v. Sarasamma, AIR 1951 Mad 213.
13
Muralidhar v. Tara Dye, AIR 1953 Cal 349.
14
Radha Charan Das v. Pranbati Dassi, (1959) 63 Cal WN 535.

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has substantiated his claim under the main part of this Section.15 The proviso to the 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.16 This was so held prior to the enactment of Section 53A.

15
Yasodammal v. Janaki Ammal, AIR 1968 Mad 294
16
Prova Rani v. Lalit Mohini, AIR 1960 Cal 541

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CONCLUSION

The doctrine of part performance is an equitable doctrine designed to relieve the rigor of the law
and provide a remedy when a transfer or an agreement for transfer falls short of the requirements
laid down by the law. In England the doctrine was developed by the Equity Courts. In a modified
form it has been recognized statutorily in India being embodied in Section 53A.

Section 53A of the Transfer of Property Act applies to a person who contracts to transfer
immovable property in writing. If the proposed transferee in agreement has taken possession of
the property or he continues in possession thereof being already 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, the transferor shall be
debarred from enforcing any right in respect of the property.

Also, Section 53A does not confer any title or interest to the transferee in respect of the property
in his possession. Furthermore, it does not give to the transferee any right of action. It provides
merely a right of defence. This is the essence of the principle incorporated in Section 53A of the
Transfer of Property Act.

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BIBLIOGRAPHY

Books:

 Allahabad Law Agency, Shukla S.N., Transfer of Property Act, 29th Edition.

 Lexis Nexis, Pradhan Dr.Poonam, Mulla Transfer of Property Act, 15th Edition.

 Singhal Law Publications, Madhav Mayank, PropertyLaw, 2018 Edition.

Cases:

 Achayya v. Venkata Subba Rao, AIR 1957 AP 854;

 Probodh Kumar Das v. Dantmara Tea Co, AIR 1940 PC 1.

 Delhi Motor Company v. U.A.Basrurkar, AIR 1968 SC 794.

 Technicians Studio Pvt. Ltd. v. Leela Ghosh, AIR 1977 SC 324.

e-Sources:

 https://www.lawteacher.net

 https://www.lawnotes.in

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