1

Doctrine of Part Performance

Part – 1

Introduction

Doctrine of part performance is a very important provision under the

Transfer of Property Act 1882 and the relevant provisions have been
enacted under Section 53A of the Transfer of Property Act. According to
the statutory provisions, this doctrine works as follows:

A person must have contracted to transfer the subject matter of any

immovable property, the transfer of property should be for a consideration
and in writing form with duly signed by either the transferor or on his
behalf. Finally, from the terms of the document, it should be reasonably
certain that the intent of the parties is to transfer the immovable property
from the transferor to the transferee. Further, the transferee must have,
in part performance of the contract, taken possession of the property or
any part of the property. In case the transferee is already in possession of
the property, then he should continue in possession in part performance
of the contract and must have also done some act in furtherance of the
contract. In addition, the transferee must either have performed his part
of the contract or must be willing to do the same. If the above conditions
are satisfied, then the transferor or any other person on his behalf is
debarred from enforcing the right of which the transferee has taken
possession, in respect of the property against the transferee or any
person on his behalf, they can only enforce a right expressly provided by
the terms of the contract entered into between the parties.

The above provisions tend to furnish a statutory defence to a person to

maintain his possession but if he can prove that a written and signed
contract in his favour has already been executed and registered. Also that
he has done some action as his part of performance of that contract. In
order to be eligible for protection of the above doctrine of part
performance, it must be shown that there is a contract to transfer for
consideration, the immovable property. Further, the contract must be
 2

evidenced by a writing signed by the person sought to be bound by it, and

from which the terms necessary to constitute the transfer can be
ascertained with reasonable certainty. These are the prerequisites to
invoke the provisions of Section 53 A of the TP Act. In addition, it must be
shown that the transferee has done something in part performance of his
part of the contract. The act must be in furtherance to the contract
and not otherwise. The acts claimed to be in part performance must be
unequivocally referable to the pre existing contract and the act of the part
performance must unequivocally point in the direction of the existence of
the contract.
There need to be a real nexus between the contract and the acts done in
pursuance to the contract or in furtherance to the contract. When a series
of acts are done in part performance, one such act may be payment of
consideration. Any one act by itself may or may not be of such a
conclusive nature as to conclude the point. The acts preliminary to the
contract would be hardly of any assistance in ascertaining whether they
were in furtherance of the contract. Anything done in furtherance of the
contract postulates the pre existing contract. The acts done anterior to
the contract or merely incidental to the contract would hardly be any
evidence of part performance.

The above provisions have been enacted to give equity. The object is to
prevent the transferor or his successor from taking an advantage on
account of the non-registration of the document, provided the transferee
has performed his part of the contract.

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
 3

part of the contract, then, notwithstanding that the contract, though

required to be registered, has not been registered, or, 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.

Historical background of Part Performance

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.1 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. Recently, Para 4 of s 53A has been amended by Section
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 omitted2.

In England the Statute of Frauds required all contracts relating to land to

be in writing. Section 4 of that Act provided that no action could be
brought upon a contract for the sale of land unless the contract or
memorandum thereof was in writing and signed by the party to be
charged or his agent. The object of the Statute was to guard against fraud
by eliminating oral evidence of such transactions and thereby obviating
the danger of perjured evidence. Its stringent provision, however, could be

1
(1833) 8 A.C. 467
2
Dr. G.C.Bharuha, Mulla, The Transfer of Property of Act, Tenth Edition, Lexios Nexis,
Butterworths India.
 4

utilised as to make the Statute an instrument of fraud. Thus, A might

orally agree to sell Blackacre to X, receive the price and put X in
possession in pursuance of the agreement. He could, nevertheless, eject X
from Blackacre and leave him without a remedy simply because the
agreement was not reduced to writing as required by the Statute of
Frauds. To obviate the hardship involved in such cases, equity acted upon
the principle that Statute cannot be allowed to be made an instrument of
fraud and thus the doctrine of part-performance was developed. This
doctrine, however, is a summary way of stating the principle, and however
true it may be, it is not an adequate explanation either of the precise
grounds or of the established limits of the equitable doctrine of part
performance. The principle on which the doctrine rests is that if a man has
made bargain with another and allowed that other party to act upon it, he
will have equity against himself which he cannot resist by setting up the
want of a formality in the evidence of the contract out of which the equity
in part arises. Hence, it is that where a contract in relation to land has
been partly performed by one party to it, the court may enforce specific
performance of it, notwithstanding the want of a sufficient message in
writing.

In the leading case of Maddison v. Alderson3:-

A agreed to remain in B's service in pursuance of an oral agreement by

which the latter was to leave A, by will, a life estate, in certain land. The
estate was bequeathed by a will which failed for want to do attestation.
The heir-at-law brought the action to recover the land. The question arose
whether the defence of -performance was open to A.

Judgement:- Lord Selbourne said : "In a suit founded such performance,

the defendant is really charged upon the equities resulting from the acts
done in execution of the contract, and not (within meaning of the Statute)
upon the contract itself. If such equities were excluded, injustice of a kind
which the statute cannot be thought to have had in contemplation would
follow."
3
(1833) 8 A.C. 467
 5

This section partially imports into India, the English equitable doctrine of
part-performance. Section 53-A recognises the doctrine in a modified
form. The doctrine is designed to relieve the rigour of the law and provide
a remedy when a transfer or agreement to transfer falls short of the
requirements laid down by law. After introduction of Section 53-A by the
Act of 1929 in this country, the right to retain the possession on the
ground of part-performance does not depend on equity, but rests on the
express provisions of the section itself. Apart from this section and except
as provided therein, the doctrine of part-performance is not applicable in
India. The doctrine of part-performance as provided in Section 53-A forms
part of substantive law.

The earliest decision of the Privy Council on the subject of part-

performance is that of Mohamed Musa's case.

Mohamed Musa v. Aghore Kumar Ganguli4

In this case, a Razinama, recorded a compromise by which certain

mortgaged properties were divided between the mortgagor and the
mortgagee. Under the compromise, the mortgagee released his mortgage
right in respect of the property retained by the mortgagor who undertook
to execute a conveyance in regard to the property allotted to the
mortgagee. The Razinama was not registered, nor was a conveyance
executed by the mortgagor, but a conveyance was but necessary
according to the law then in force. The Razinama was otherwise fully
acted upon. Nearly 40 years thereafter, the representatives of the
mortgagor sued for redemption on the footing that the unregistered
Razinama could not extinguish the mortgage and that in the absence of a
conveyance by the mortgagors the mortgagee's rights could not be
enlarged.

Judgement:- The suit was dismissed. A written conveyance was not

required according to the law then in force. Lord Shaw who delivered the

4
42 Cal. 801 (P.C.)
 6

judgment relied also upon the doctrine of part-performance to repel the

claim of the plaintiff quoting Maddison v. Alderson5.

The question again arose before the Privy Council in Ariff v. Jadunath, and
it was definitely declared that the doctrine of part-performance was
inapplicable in India.

Ariff v. Jadunath6

In that case, the defendant took possession of a piece of land under a

verbal agreement of 1913 for the grant to him by the plaintiff of a
permanent lease of the property at a fixed rent. In 1925 the owner of the
land filed the suit for ejectment after serving upon the defendant a notice
to quit treating him as a monthly tenant. Relying on Mohamed Musa's
case,7 the Calcutta High Court dismissed the suit. The decision was
reversed by the Privy Council and Mohamed Musa's case8 was
distinguished on the ground that in that case at the relevant date no
written conveyance was required, the Transfer of Property Act not having
then been in force.

Pir Bux v. Sardar Mahomed Tahar 9

The plaintiff, a political pensioner, was the grantee, from the Government,
of a plot of land at Sukkur. In 1919, he entered into an agreement with the
defendant undertaking to sell the plot to the latter if he, the plaintiff,
should be given permission by the Government to live in Quetta. The
plaintiff got such permission, but failed to execute a conveyance in favour
of the defendant. The collector, thereupon, cancelled the grant in favour
of the plaintiff and put the defendant in possession of the plot. The
plaintiff brought an action for a declaration of his title and for ejectment.
The collector's order cancelling the grant was found to be invalid, but the
defendant contended that the prayer for the ejectment would fail since he
could rely upon the doctrine of part performance.
5
(1833) 8 A.C. 467
6
58 Cal. 1235
7
Mohammed Musa v. Aghore Kumar Ganguli, 42 Cal. 801 (P.C.)
8
Ibid.
9
I.L.R.58 Bom. 650
 7

Judgement:- The Privy Council rejected defendant's contention and Lord

Macmillan observed: "The English doctrine of part-performance is not
available in India by way of defence to an action of ejectment. The fact
that the plaintiff has agreed to sell the land in question to the defendant is
not rendered ineffective by the reason of the plaintiff having in part-
performance of the agreement, permitted the defendant to take
possession. If the contract is still enforceable, the defendant may get the
action stayed and by suing for specific performance obtain a title which
will protect him from ejectment. But if it is no longer enforceable, its' part-
performance will not avail him to any effect.”

Apart from the above, two other equities were applied by the courts in
India prior to the enactment of Section 53-A viz.; the equity in Walsh v.
Lansdale10 and the equity based on the fiduciary capacity of the vendor11.
It is worthwhile to note that the above two judgments were given by the
Privy' Council in the light of the law as it was before 1929. Since the
application of the English doctrine of part performance was not uniform in
India and it also rendered the whole situation murky, it was, therefore,
necessary to enact law on this subject. Accordingly, Section 53-A was
enacted and included in the Transfer of Property Act by the Amending Act
of 1929. The law contained in the above section is almost the same as it
was -laid down by the Privy Council in Mohamed Musa's case. 12

Principle laid in Walsh v. Lansdale13

The equity in Walsh v. Lansdale is inconsistent with the requirement of

registration in this Act and the Registration Act. The rule in Walsh v.
Lansdale was - Where, A agrees to let land to B on lease, and B goes into
possession and the agreement is one of which specific performance would
be granted. A and have the same legal rights as between themselves and
are subject to same legal disabilities, as if a lease under seal had been
granted one of the agreement. Hence, the landlord has the same power of

10
(1882) 21 Ch. D. 9
11
Girja v. Girdhari, (1950) 29 Pat. 628
12
Mohammed Musa v. Aghore Kumar Ganguli, 42 Cal. 801 (P.C.)
13
(1882) 21 Ch. D. 9
 8

distress as he would have had, if a lease under seal had been granted,
and the tenant can only be evicted, if he has committed such a breach of
covenant would have entitled the landlord to re-enter. The equity depends
not so much on part-performance, as on the fact that re is a valid contract
between the parties and that the contract is still capable of being
enforced by specific performance, in the same court and at the same time
as the subsequent legal question falls to be determined. Thus, it is clear
that Walsh v. Lansdale is an example of the equitable rule that what ought
to be done as a consequence of a binding agreement is treated as
actually accomplish. The person, who has an equitable interest, under an
agreement of lease, if he is entitled to specific performance in the same
court, is treated as if the equitable interest had been turned into the legal
interest of a lessee. But under the Indian enactments, there is no
distinction between legal and equitable interests. The right of a person
entitled under an agreement of lease is not an equitable interest but a
personal right. If that personal right cannot be converted into an interest
in land without registered instrument, the application of the equity would
be a contravention of the Transfer of Property Act and of the Registration
Act.

Part – 2

Governmental effort on Part Performance

When the Transfer of Property Act was enacted, Section 53-A did not find
place in it. In the absence of Section 53-A, there arose difference of
opinion between various courts in India as regards the application of
English doctrine of part performance of contract as it was then prevailing
in England. Since there was a difference of opinion on question of the
application of English equitable doctrine of part performance in the
various court of India.

The Government of India resolved to set up a Special Committee for

making recommendations amongst others, Whether the British equitable
 9

doctrine of part performance be extended in India also. The Special

Committee was of the view that an illiterate or ignorant buyer who had
partly performed his part of contract required statutory protection. The
Committee was of the view further that where a transferee in good faith
avails that lawful instrument i.e., a written contract would be executed by
the transferor, takes possession over the property, the equity demanded
that the transferee should not be treated as trespasser by the transferor
and subsequently evict him through process of law in the absence of
lawful transfer instrument. The Special Committee also considered the
question whether protection under the proposed Section 53-A to a
transferee would also be available even if the period of limitation for
bringing an action for specific performance of an agreement to sell has
expired. On the said question, the Committee was of the view that even
after expiry of period of limitation, the relationship between the transferor
and transferee remains the same as it was within the period of limitation
and, therefore, the possession over the property taken in part
performance of an agreement is required to be protected even if the
period of limitation for bringing an action for specific performance has
expired. The recommendation of the Special Committee was accepted by
the Government of India as the same is well reflected in the aims and
objects of Amending Act, 1929 whereby Section 53-A was inserted in the
Act.

The Special Committee's report shows that one of the purposes of

enacting Section 53-A was to provide protection to a transferee who in
part performance of the contract has taken possession of the property
even if the limitation to bring a suit for specific performance has expired.
In that view of the matter, Section 53-A, is required to be interpreted in
the light of report, aims and objects contained in Amending Act, 1929,
Section 53-A itself does not put any restriction to in defence by a
transferee to protect his possession despite limitation to bring a suit for
specific performance having expired. The courts are of the view that if the
conditions enumerated in Section 53-A are complied with, the law of
 10

limitation does not come in the way of a defendant taking plea under
Section 53-A

Scope

So far applicability of s 53A of the TP Act 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 other
conditions of s 53A. That protection is available as a shield, only against
the transferor; the proposed vendor would disentitle him from disturbing
the possession of the proposed transferees who are put in possession
pursuant to such an agreement. However, that has nothing to do with the
ownership of the proposed transferor who remains full owner of the lands
till they are legally conveyed by a sale deed to the proposed transferees.
Such a right to protect possession against the proposed vendor cannot be
pressed in service against a third party like the state when it seeks to
enforce the provisions of the Act against the tenure holder.

The following postulates are sine qua non for basing a claim on section
53A of the TP Act:

1. There must be a contract to transfer for consideration any

immovable property.

2. The contract must be in writing, signed by the transferor, or

by someone on his behalf.

3. The writing must be in such words from which the terms

necessary to construe the transfer can be ascertained.

4. The transferee must in part performance of the contract take

possession of the property, or of any part thereof.

5. The transferee must have done some act in furtherance of the

contract.
 11

6. The transferee must have performed or be willing to perform

his part of the contract.

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.

A proposed vendee cannot protect his possession of the immovable

property on the basis of an oral agreement. Written agreement is sine qua
non for applicability of the equitable doctrine of part performance
enshrined under S. 53A.

In the absence of the pleadings and evidence of all the essential

conditions, making out a defence of part performance to protect
possession claimed by the plaintiff, would not be attracted. The plea
under s 53A of the TP Act raises a mixed question of law and fact and,
therefore, cannot be permitted to be urged for the first time at the stage
of second appeal.

Acts Necessary For Constituting Part Performance:-

1. An act of part-performance must be an act done in performance or

the contract and therefore, acts, introductory to and previous to the
agreement, cannot be act of part-performance14. Even an act
subsequent to the contract, though done in pursuance of the
contract is not an act of part-performance, unless it is done strictly,
in the performance of the contract.15 The acts preliminary to the
completion of the contract, such as going to see the estate,
employing a surveyor to value the land or timber thereon are not
act of 'part-performance.'

14
Whitebird v. Brookhurst, (1784) Bro. C.C. 412 ; Porker v. Smith (1845) 1 Cal. A.C. 608
at p. 623
15
O’Reilly v. Thomposon (1971) Cox CC Eq Cas 271
 12

2. The acts relied on as part-performance must be unequivocal and in

their nature, referable to a contract, such as that alleged, that is,
they must be unequivocal and referable to no other contract than
that alleged.16 In order to give rise to this equitable doctrine it is,
necessary that the court should find the parties unequivocally in a
different position from that in which according to their legal rights
they would be, were there no contract. The delivery of possession is
a sufficient part-performance on the part of the seller to sustain his
suit against the purchaser, and that acceptance of possession is a
sufficient part-performance on the part of the purchaser to sustain
his suit against the seller. But one must find some cogent evidence
in the situation of the parties before one can receive oral evidence
of the agreement and Part payment, or even full payment of the
price cannot be relied upon as an act of performance so as 'to take
the case out of the Statute'. Hence, change in possession of land is
an act of part-performance both, of the person who gives, and of the
person who takes possession, there must be a delivery of
possession.

3. An act of part-performance must be the act of the party seeking to

avail him of the equity. The acts of the party sought to be charged
are of no avail. Neither under Section 53-A nor under the amended
Section 49 of the Registration Act can a landlord recover rent from a
defendant in possession under an unregistered lease.17

Part – 3

Nature of Section 53-A

This section supersedes and is not inconsistent with that case. The effect
of the section is to relax the strict provisions of the Registration and
Transfer of Property Acts in order to allow the defence or part-
performance to be established. This is done for the protection of ignorant
transferees who have taken possession or spent money in improvement in
16
Madisson v. Alderson (1833) 8 A.C. 467
17
In re Jambad Coal Sydnicate Ltd. (1885) 62Cal. 294
 13

reliance of documents which are ineffective as transfers, or on contracts

which cannot be proved.

 Right to retain possession

This section has been described by the Privy Council in Mian Pir Bux v.
Sardar Mohammad Tahir18 as "a partial importation of the English
equitable doctrine of part-performance." By virtue of this section part-
performance does not give rise to equity as in England, but a statutory
right19. This right is more limited than the English equity in two respects:

(1) The contract must be in writing

(2) It is available only as a defence.20

So far as India is concerned, the section is an enactment of the rule

previously prevailing. It creates rights which were not in existence before
the enactment was passed. The right to retain possession on the ground
of part-performance rests on the express provision of this section. It does
not create a form of transfer which is exempted from the registration.

In Mohanlal v. Mira Abdul Gaffar,21 the Supreme Court observed that

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 performed or is willing to perform his part
of the contract, he would be entitled to retain possession and to continue
in possession which he has already received from the transferor so long as
he is willing to perform his part of contract.

It would be incumbent upon the transferee to plead and prove his

readiness and willingness to perform his part of the contract. He who
comes to equity must do equity. The doctrine of readiness or willingness is
an emphatic way of expression to establish that the transferee always

18
58 Cal. 235
19
AIR 1934 P.C. 325 ; ILR Bomb. 58 Bom. 650 ; 151 I.C. 326
20
Ettapparambhatt v. Kaiprath (1954) 1 M.L.J 558
21
AIR 1996 SC 610
 14

abides by the terms of agreement and is willing to perform his part of the
contract. Part performance, as statutory right is conditioned upon the
transferee's continuous willingness to perform his part of the contract in
terms covenanted there under.

 Part performance for third persons

In State of U.P. v. District Judge22, the Supreme Court was of the view that
right to protect possession cannot be pressed against third person. It is
only against the transferor or person claiming through him.

Section 53-A of Transfer of Property Act provides a shield of protection to

the proposed transferee to remain in possession against the original
owner who has agreed to sell these lands to the transferee if the proposed
transferee satisfies other condition of Section 53-A. That protection is
available as a shield only against the transferor, the seller, and would
disentitle him from disturbing the possession of the transferees who are
put in possession pursuant to such an agreement. But that has nothing to
do with the ownership of the transferor who remains full owner of the said
lands till they are legally conveyed by sale-deed to the transferee. Such a
right to protect possession against the vendor cannot be pressed in
service against a third party like the appellant-State when it seeks to
enforce the provisions of the Act against tenure holder, the transferor of
these lands.

 Any person contracts to transfer

Protection given under Section 53-A is available only in those cases where
the transfer of property is made in pursuance of a contract.

In Maneklal v. Hormusji23 the agreement to lease was evidenced by

correspondence and lessee was put in possession. The rent was accepted
by the lesser for several years. The Supreme Court held that Section 53-A
could apply to protect the tenant from ejectment. Section 53-A applies to
usufructuary mortgages and to other mortgages with possession. Section
22
(1997) 1 SCC 496
23
(1950) SCR 75 ; See also Vidya B. Singh v Rati Ram AIR (1963) Him. Pra. 49
 15

53-A does not apply to a family arrangement, partition, or a case when

only partial interest is conveyed, i.e., transfer of property to take out
minerals or cut timbers. Thus, in Chanderwati v. Lakhmi Chand,24 it has
been observed that a partition is not a transfer therefore, the doctrine of
part-performance does not apply to an unregistered deed of partition.

Section 53-A applies only in those transfers that are with consideration.
Gift is a transfer without consideration and, therefore, Section 53-A will
not afford any protection to donee against the donor. 25

 Immovable property

Section 53-A applies only to transfer of immovable property. A transfer of

movable property is beyond the purview of Section 53-A. Immovable
property has been defined in Section - 3. It does not include standing
timber, growing crop and grass and, therefore, if any one of these is the
subject-matter of the contract, Section 53-A would not apply. The section
does not apply to an agreement for transfer of movable properties.

No defence of part performance can be taken in respect of possession of

movable property. Any stipulation authorising the owner to seize a vehicle
given out on hire purchase for non-payment of an instalment in
accordance with law is valid and this section will not apply.26

 Contract to be in writing

The contract must be in writing signed by or on behalf of person sought to

be charged. The writing contemplated under this section may be in any
form27, but it should be in such form which the term may be ascertained 28.
An oral agreement will not be sufficient.

24
AIR 1988 Del. 13 ; See also Smt. Zaveri v. Jitu AIR 1954 Sau. 46
25
SDP Sabha Baijnath Coperative Multipurpse Socirty v. State of Himanchal Pradesh ;AIR
1984 NOC 84
26
Hameed v.Jayabharat Credit & Invest Co. AIR (1986) Ker. 206
27
Kerthikeva Mudailarv. G. Singaram Pillai, AIR 1965 Mad. 693
28
Ibid.
 16

In Allam Gangadhar Rao v. Gangarao29 the High Court of Andhra Pradesh

held that all terms of previous oral agreement reduced in writing can be
used for the purpose of Section 53-A. This is a departure from the English
law, for the doctrine in England applies even to parole contracts and also
affecting land which are not enforceable on account of the Statute of
Frauds. There seems to be two reasons for this limitation:

1. The occasion for the doctrine arises in India with reference to

document inadmissible in evidence for want of registration,

2. The risk of perjuries if an oral contract could be set up as a defence

after limitation for the suit for the specific performance had expired.

Hence it has been held that if the agreement to transfer is not in writing,
Section 53-A cannot be applied to the case30. The terms of the contract
must be proved by primary or secondary evidence and its terms must be
proved by the contract itself and not from what purports to be its
quotation in another document.31

In the case of N. Patra v. S.G. Patra32 and others, it was held that Section
53-A contemplates the contract in writing. In this case, the pleading of
part performance was based on oral contract which is not maintainable.
Honourable Court has held that since the defendant has denied
completely the existence of contract, therefore the relief claimed under
Section 53-A is completely unsustainable.

 Contract to be signed by him or on the behalf

What is required is that the contract "itself must be in writing and must be
signed by the person claiming to recover possession or on his behalf 33."
The section cannot come into play where the writing is deemed to have
been signed on his behalf. That covers only two cases:- where

1. Where the plaintiff has actually signed

29
AIR 1968 AP 291
30
Dhanrajamal v. Hazarimal, 200 IC 326 ; Narayan v. Guruprasad AIR 1962 Nag. 246
31
Har Prasad v. Harmant Rao , AIR 1960 Cal. 40
32
AIR 1998 Ori. 19
33
AIR 1959 AP 534
 17

2. Where someone who has been specifically authorised has signed on

his behalf.

If the writing was "signed by him or on his behalf or deemed to have been
permissible to import such notions into the section, as it is, the signature
must be done by the contracting party or by someone else on his behalf.
Section 53-A has no application to a case where the document upon which
a party relies is not a contract of transfer signed by the lesser but is a
kabuliat executed by the lessee.34

 Willingness

The term "willingness" used in this section means readiness and

willingness as used in Section 16 of the Specific Relief Act.35

In M/s Jacob Private Ltd. v. Thomas Jacob,36 the Kerala High Court held
that Section 53-A makes it clear by employing the word 'then' after laying
down the prerequisites that a transferee, may seek refuge under it only
after satisfying the prerequisites. In other words, the bar envisaged in the
section against enforcement of the transferor's right can be exercised only
on compliance with the postulates. Willingness to perform the role
ascribed to a party in a contract is primarily a mental disposition.
However, such willingness in the context of Section 53-A of the Transfer of
Property Act must be absolute and unconditional. If willingness is studded
with a condition, it is in fact, no more than an offer and cannot be termed
as willingness. Where the vendee company expresses its willingness to
pay the amount, provided the plaintiff clears his income-tax arrears, there
is no complete willingness but a conditional willingness or partial
willingness which is not sufficient to arm the company with the shield
provided by Section 53-A of the Act.

 Taking Possession Or Retaining Possession

34
Chandranath Mukerjee v. Chulai Pasi; AIR 1960 Cal. 40
35
YA kader v. Muthulakshmi Ammal AIR 1992 Mad. 208
36
AIR 1955 Ker. 357
 18

Like written contract and consideration, possession is another very

important ingredient of Section 53-A. Possession is a semi-juristic concept
and much of it is a question of fact. Possession is useful in two ways :

1. Position after taking possession.-If the transferee takes the corpus

of the property in his possession after the contract to transfer that
property is signed,' the requirement of the section is complete;
provided that it is preferable to contract and contract alone.

2. When possession is retained.-If the transferee remains in

possession of the concerned property from a date prior to the
contract to transfer it in connection with some other dealing in
between the parties, the section does not require any formal
delivery of possession in such cases. It is enough if the transferor
proposes and the transferee agrees to that proposal to hold the
possession under new contract. For example A lets out a house to B
for five years. After the expiry of the lease, A agrees to sell the
same house to B. B pays Rs. 1,000 and continues in possession.
This is sufficient compliance of Section 53-A.
 19

Part – 4

Position of transferee under Section 53 - A

This section will protect the interests of the transferee only when his own
hands are clean and nothing remains in balance so far he and his part in
the transaction is concerned, for example if some money is to be paid, the
transferee must have tendered the money to the transferor at right time
and place. What is needed is that transferee should be ready and willing.
In Govind v. Haridutt,37 two months were given for registration of the
deed. The plaintiff remained ready and willing throughout this period, but
the defendant did not execute the deed. The Supreme Court held that
mention of the time does not make it one of the essences of the contract.
The transfer would only be hit, by the expiry of the time if it is of essence.

In Teja Singh v. Ram Prakash,38 the agreement of sale was in writing and it
was proved that the transferee was already in possession of the property
and in part-performance of the agreement, he had paid two instalments
due under the agreement in time, however, the third instalment was paid
few months after the due date and it was accepted by the transferor, the
transferee was willing to perform the remaining part of the contract. The
court held that regarding the sale of immovable property the time is not of
essence of the contract unless it is proved that the parties intended that
the time would be of the essence of the contract. Therefore, if there is
some delay in payment, the contract does not end. If the consideration is
to be paid in instalments and it becomes irregular and such irregular
payment is accepted, the time is not of the essence.

In Ranchhoddas Chhaganlal v. D.S. Dorik,39 the Supreme Court has

observed that : Where A (Vendor) filed suit against B for specific

37
AIR 1977 SC 1005
38
AIR 1984 P & H. 95
39
AIR 1977 SC 1517
 20

performance of contract of sale on ground that B (in possession of suit

house) failed to pay A within time the balance of Rs. 5,000 of the
purchase price along with interest thereon and that there was no
extension of time for performance of the contract, having failed to
perform his part of contract within time, B could not rely on the doctrine of
part-performance.40

In Jawahar Lal Wadhwa v. Haripal Chakroberty41, the Supreme Court of

India reiterated the principle that transferee must inter alia perform or be
willing to perform his part of the contract. Failure on the part of transferee
in possession to pay in monthly instalments would disentitle him to the
protection under Section 53-A.

Right to defend possession

The right conferred by this section is a right only available to the

defendant to protect his possession. This section does not create a title in
the defendant, it merely operates as bar to the plaintiff assenting to his
title42. The provision of this section does not confer any right on the
transferee to claim possession or any other right in property 43. Transferee
has a right only to plead the estoppels to protect his possession against
transferor44. It is limited to cases where the transferee had taken
possession and against whom the transferor is debarred from enforcing
any right other than that expressly provided by the contract. For the
applicability of this section, transferee must have taken possession or
done some act in furtherance of contract.45

An unregistered agreement of sale, executed by the mortgagor in favour

of the mortgagee in possession, recited that after the date of agreement
the mortgagee who had been in possession as such would become the
owner of the property and that he could get his name mutated in

40
Mariapa v. AK Sathyanarayna ; AIR 1984 Kant. 50
41
AIR 1989 SC 606
42
Bholai Phukan v. Lakhi Kanta , 49 Assam 3
43
Ishwari Khetan Sugar Mills, Lakshmiganj U.P. v. Union of India and Others, AIR 1970
Guj. 122
44
Ibid.
45
Babu Murlidhar v. Saudogar Mohammad Abdul Bashir and another; AIR 1970 Mys. 203
 21

municipal records and name of mortgagee wads mutated as owner of the

property. In this case, the court held that the mortgagor was bound by
contract and has no right to redeem the mortgage.46 The section puts a
bar on the transferor. In a Bombay case,47 the defendant took possession
under an unregistered lease and retained it for 6 years and vacated after
16 months claiming to be a monthly tenant. The court held that as the
defendant had taken possession under the unregistered lease he was
liable under Section 53-A for the rent of the whole term and awarded
damages to the plaintiff. In this case, part-performance was used not as a
ground of defence but as a ground of attack. The cardinal principle that
the doctrine of part-performance should be used as a shield and not as a
ground of attack was overlooked.

In Delhi Motors Co. v. U.A. Basurkar48, the Supreme Court of India laid
down the principle that Section 53-A is only available as a defence to a
lessee and not as conferring a right on the basis of which the lessee can
claim right against the lessee. Section 53-A only bars the enforcement of
right by a lesser in respect of property of which the lessee had already
taken possession but does not give any right to the lessee to claim
possession or to claim any other right on the basis of an unregistered
lease. The plea of part-performance cannot be raised for the first time in
second appeal.

 Extent and scope of defence under Section 53-A

Protects against two types of claims:

1. Non Registration of deeds

2. Instrument of transfer not in proper form

 Scope of protection

46
Ibid.
47
Suleman v. Patel (1983) 35 Bom. L.R. 722
48
Delhi Motor Co. and Others v. U A Baruskar; AIR 1968 794
 22

Section 53-A protects the original transferee, his, heirs and assignees
against claim to eject them, brought by the original transferor, his heirs
and assignees. It will not protect if the alleged possession is declared
illegal or dealing in that property is forbidden by law or transferee's
interests are assailed by a person who claims a title superior to that of the
original transferor.

Section 53-A protects the possession of the transferee. He cannot be

dispossessed or ejected by a legal process. It does not confer any title on
the transferee. It also does not give any additional right to him than what
he has got under the original contract. The transferor will, however, be at
liberty to enforce any other right against the transferee that he might
have reserved for himself under the main contract.

 Section 53 A recognises only a passive equity

In the leading case of Prabodh Kumar v. Dantmara Tea Co.49., the

appellant before the Privy Council was the plaintiff, who had in his favour
an agreement dated 10th October, 1931, for the sale of a tea estate over
which he was put in possession under the agreement. The respondent
defendant in the suit claimed under a later registered instrument of sale.
The defendant was granted tea export quota rights by the authorities but
had no actual possession of the tea estate. The plaintiff was not granted
tea export quota rights and so he brought the suit for a declaration of his
title and for debarring the defendant from exercising rights in regard to
the sale of the tea. He founded his claim on Section 53-A. The Privy
Council held that Section 53-A conveys no title and confers no right of
action. The plaintiff was accordingly non-suited. Section 53-A is not
attracted for perfecting title50. Lord Macmillan observed: "In our opinion
the amendment of the law affected by Section 53-A conferred no right of
action on the transferee in possession under an unregistered contract of
sale. The High Court that the right conferred by Section 53-A is a right
available only to the defendant to protect his possession. The section is so

49
AIR 1940 P.C. 1
50
Krishnan v. Sindhu Bala , AIR 1970 Cal. 444
 23

framed as to impose a statutory bar on the transferor; it confers no active

title on the transferee.

If the transferee wants to acquire a perfect title to the property, there are
two courses open to him:

1. To remain in possession for the statutory period when his

possession will ripen into ownership by prescription,

2. To bring a suit for specific performance.

By means of a decree in that suit he can compel the execution of a proper

deed of transfer and in that way acquire a good title to the property.

Part – 5

Recent case and its Judgement

 Shrimant Shamrao Suryavanshi v. Prahlad Bhairoba

Suryavanshi51

In this case the question that arose for consideration was whether in a suit
brought by a transferor for recovery of possession of the suit property, a
defendant-transferee can defend or protect his possession over the suit
property obtained in pursuance of a part performance of an agreement to
sell under Section 53-A of the Transfer of Property Act, even if a suit for
specific performance of an agreement to sell was barred by limitation.

The appellants were the defendants in the suit brought by the plaintiff-
respondents for recovery of the suit property and for Mesne profit. On 9th
July, 1964, respondent no. 3 executed an agreement for sale of an

51
(2002) L.C.D. 460 (S.C.)
 24

agricultural land in favour of appellant no. 1 for a total consideration of Rs.

9,000. Appellant no. 1 paid a sum of Rs. 5,700 towards earnest money.
The appellant in pursuance of the said agreement for sale was put in
possession over the said property. After the execution of the said
agreement, it came to the notice of the appellant that the transferor is
negotiating for sale of the said land in favour of respondent no. 1. Under
such circumstances, the appellant brought a suit on 2nd August, 1965 for
injunction restraining the transferor from selling the said land in favour of
respondent no. 1. On 30th April, 1966, the trial court granted injunction as
prayed for. It is the case of the appellants that despite the said injunction
order, the transferor sold the said property through a registered sale deed
dated 24th May, 1966 in favour of respondent no. 1.

After the sale deed was executed, the plaintiff-respondent no. 1 on the
strength of the said sale deed brought a suit for recovery of possession of
the land. The appellants filed a written statement wherein the suit was
resisted on the ground that they are in possession of the property in
pursuance of agreement entered into on 9th July, 1964 and their
possession is protected as they are always and still willing and ready to
perform their part of the contract. Another contention raised was that the
decree passed by the civil court in a suit for injunction operates as res
judicata and the sale deed which is the basis of the title of the appellant
has not been proved.

The trial court dismissed the suit. The learned single judge of Bombay
High Court dismissed the appeal preferred by the plaintiff-respondents.
However, the Letters Patent Bench allowed the Letters Patent Appeal filed
by the plaintiff-respondents. The view taken by the Letters Patent Bench
was that the protection as regards possession is not available to the
defendant-appellants as the suit for specific performance of agreement for
sale is barred by limitation. It is against the said judgment of the Letters
Patent Bench, the appellants are in appeal.

The first question that was for the consideration was whether the
defendant-appellants were entitled to protect their possession of the suit
 25

property obtained in pursuance to part performance of agreement for sale

even after the suit for specific performance of contract for sale was barred
by limitation. The argument of learned counsel appearing for the
appellants was that even though the suit for specific performance of the
agreement for sale was barred by limitation, still a transferee in a suit for
recovery of possession by the vendor, can defend his possession under
Section 53-A of the Act so long as he is willing and ready to perform his
part of the contract. Whereas, the contention raised on behalf of the
respondents' counsel was that, once a remedy for specific performance of
an agreement for sale is lost by limitation, the equitable relief of
protection of possession of the suit property under the agreement for sale
also comes to an end and is lost. In other words, the contention was that
the right to defend possession to a vendee is available so long as the
period of limitation prescribed by law for its enforcement continues and it
comes to an end as soon as the period of limitation expires.

A perusal of section 53-A shows that it does not forbid a defendant-

transferee from taking a plea in his defence to protect his possession over
the suit property obtained in part performance of a contract even though
the period of limitation for bringing ~ suit for specific performance has
expired. It also does not expressly provide that a defendant-transferee is
not entitled to protect his possession over the suit property taken in part
performance of the contract if the period of limitation to bring a suit for
specific performance has expired. In absence of such a provision, the
provisions of Section 53-A have to be interpreted in a scientific manner. It
means, to look into the legislative history and structure of the provisions
of Section 53-A of the Act.

Part – 6

Conclusion

The normal rule is that registration dates back to the date of execution.
The established rules of law regarding transfer of property underwent a
 26

radical change when the provisions of Section 53-A of the Transfer of

Property Act, 1882 were incorporated into the Income-Tax Act, 1961 w.e.f.
April 1, 1988, by amending the definition of ‘transfer’ under Section 2(47)
of the Act so as to lay down that even part-performance of the sale
agreement by handing over possession will result in the passing of title.
Section 53A of the TPA Act allows the doctrine of part-performance to be
applied to the agreement which, though required to be registered, is not
registered. Section 53-A applies to transfers not completed in the manner
prescribed by the Registration Act. Where the transferor handed over the
possession of the property pursuant an agreement for sale, the person
receiving possession is entitled to receive the income from the property.

An unregistered document will not affect the property comprised in it, nor
be received as evidence of any transaction affecting such property
(except as evidence of a contract in a suit for specific performance or as
evidence of part-performance under the Transfer of Property Act or as
collateral), unless it has been registered. Thus the doctrine of part
performance dealt with under Section 53- A of the Transfer of Property Act
and the provision of Section 49 of the Registration Act (which provide that
an unregistered document cannot be admissible as evidence in a court of
law except as secondary evidence under the Indian Evidence Act)
together protect the buyer in possession of an unregistered sale deed and
cannot be dispossessed.

BIBLIOGRAPHY
 27

BOOKS

1) Banerjee A.K., ‘Commentaries on The Transfer of Property Act’,

Dwivedi & Company, Allahabad, 2007

2) Dr. Tripathi G.P., ‘The Transfer of Property Act’, 16th Edition,

Central Law Agency, Allahabad, 2008

3) Bharuka G.C., ‘Mulla – The Transfer of Property Act’, 10th Edition,

Lexis Nexis, New Delhi, 2005

4) Prof. Sinha R.K., ‘The Transfer of Property Act’, 9th Edition, Central
Law Agency, Allahabad, 2006

5) Sorabji Soli J., ‘The Transfer of Property Act’, 9th Edition, Central
Law Agency, Allahabad, 2006

WEB-PAGES

1) http://en.wikipedia.org/wiki/Equity_of_redemption

2) http://en.wikipedia.org/wiki/Equity_of_redemption

3) http://en.wikipedia.org/wiki/Subrogation