RESEARCH PROJECT

On

Doctrine of Part Performance- A judicial Interpretation

Submitted to

MAHARASHTRA NATIONAL LAW UNIVERSITY,

AURANGABAD

Submitted by

AJINKYA SUNIL BONDE

B. A.LL.B. (Hons.)

Semester-IV

Roll No. 2020/BALLB/07

Subject: Transfer of Property

Dr. Tanaya Tarai and Adv. Aum Maheshwari

Professor of law
Table of Contents
Declaration ....................................................................................................................... 2
Abstract ............................................................................................................................. 4
Introduction ...................................................................................................................... 4
Definition .......................................................................................................................... 5
Section 53A Exception ...................................................................................................... 7
Nature of transferee’s rights under section 53A ................................................................. 7
Essential ingredients ......................................................................................................... 7
Scope of Doctrine of Part Performance ............................................................................. 8
Distinction between English law and the regulation established by this act ........................ 9
Conclusion ...................................................................................................................... 11
Declaration

This declaration is made at Yavatmal that, this project is prepared and drafted by me, Ajinkya
Bonde.

It contains the project work that was assigned to me during my 3rd Semester period, and
successfully accomplished from my side.

This project is a sincere attempt at compilation of the aforementioned work.

This has not been submitted, either in whole or in part, to any other Law University or
affiliated Institute under which any University is recognised by the Bar Council of India, for
the award of any other law degree or diploma, within the territory of India.

Ajinkya Bonde

([email protected])
Abstract

According to the legislation, a sales transaction is completed when the seller offers to sell and
the buyer accepts and purchases to take into consideration negotiated conditions. It might be
oral. By sharing information, it might be signed or not. It can be signed on a single piece of
paper by all parties. It is also feasible for each party to sign a copy by dividing the contract
into two portions, and for the buyer to replace the signed copy, which means that the copy is
signed by the seller and the seller has a copy signed by the buyer. Under the theory of part
performance, the seller will still execute the contract and deliver it to the buyer, who will
approve it. This paper shall delve into the doctrine of part performance and also discuss its
role in Indian courts.

Introduction
An agreement for simple sales and purchases is a mutual contract that imposes
responsibilities and privileges on the parties and may be enforced. The contract rules
governing the fulfilment of mutual promises will govern the interpretation of such a contract.
Where an opportunity is reserved for a vendor to acquire back an object sold by the vendor
through an agreement, the option shall take the form of a concession or right and may be
utilised exclusively in relation to its fulfilment.

It is important to note the following:

(a) At the time of execution, the performance of the selling act must not require any
certifying witnesses, such as a gift certificate, as provided for in Section 123 of the
Property Transfer Act of 1882.
(b) No selling deed governed by Section 54 of the Transfer of Property Act, 1882 shall
extend to Section 68 of the Indian Proof Act, 1872, which deals with scrutiny for
evidence concerning the document's execution.1

It's also worth noting the contrast between 'selling' and 'exchanging' property. The
difference between a sale and a change is that the former is paid in money, whilst the
latter is paid in commodities via barter. If the land is swapped for something other than
money, this is referred to as a 'interchange.'

“The Theory of Part Performance is an equitable doctrine that is included to avoid fraud and
illicit advantage based on the document's non-registration. This doctrine is founded on the
principle, Equity looks at what is done rather than what should have been done.

The doctrine basically states that the transferor or any person claiming under him is barred
from enforcing against the transferee and any person 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 contract term.2

1
Law Corner, Doctrine of Part Performance - Meaning, Essentials, Scope and Objective, LAW
CORNER (2021), https://lawcorner.in/doctrine-of-part-performance-meaning-essentials-scope-and-
objective/ (last visited Apr 8, 2022).

2
The Doctrine of Part
Performance, LEGALSERVICEINDIA.COM (2022), https://www.legalserviceindia.com/legal/article-1695-the-
doctrine-of-part-
performance.html#:~:text=Doctrine%20of%20Part%20Performance%20is,ought%20to%20have%20been%20d
one. (last visited Apr 8, 2022).
The Doctrine of Part Performance, based on the idea of justice, was developed in England
and was subsequently incorporated to the Transfer of Property Act of 1882 by the
Amendment Act of 1929. In contract law (for example, an agreement to sell), no rights are
transferred to another until the transaction is completed. However, if, after entering into an
agreement, an individual acts out his part or does any act in support of the agreement, he is
eligible for repayment or performance if the other party delays.”

Definition of Doctrine of part performance is defined in section 53(a) transfer of property

1882.

Definition

Section 53(a)3

“The theory of partial fulfilment of contract is founded on the broader doctrine of fraud
prevention. It is intended to safeguard the transferee who has taken ownership and invested
money in further renovations.

When a transferee has taken possession in the belief that the transfer would be completed in
accordance with the law, it would be inequitable to enable the transferor to regard the
transferee as a trespasser.”

The Doctrine of Part Performance is addressed in Section 53A of the Transfer of Property
Act of 1882.

Doctrine is nothing more than a set of principles.

The Doctrine of Part Performance protects the transferee against the transferor.

Part Doctrine The proviso that the transferee has completed his share of the contract and has
taken possession of some portion of the property precludes a transferor from taking
advantage of non-registration of papers.

“According to Section 53A of the Transfer of Property Act of 1882, if an individual settles on
concurrence with another and lets the other individual do some act for the furtherance of the
agreement, such an individual creates equity for himself that cannot be challenged on the
minor grounds of lack of formality in the proof or agreement of such an exchange.”

1. Section 53A of the act prohibits the transferor from attempting to wrest ownership of the
immovable property from the transferee in possession.

2. It precludes the transferor from pursuing possession from the prospective transferee who is
already in possession.

3
S. 53A (2003), The Transfer of Property Act (Amendment).
3. For example, if the transferor tries to take possession violently, the prospective transferee
in possession may file an action to enforce Section 53A of the act against the transferee.

The Doctrine of Part Performance is founded on three equity maxims:

1. Whoever desires equity must also do equity.

2. Equity considers what should have been done to be done.

3. Equity considers aim rather than form.

Illustration:

“A contract to sell his immovable property to B and place B in possession of the property
before a normal Sale-Deed is issued. The contract is considered to be partially executed if,
subsequently, A refuses to complete a conventional instrument of sale and starts an eviction
suit against B, regarding B as a trespasser. Then B might oppose A's claim on the grounds
that the transfer contract in his favour has been partially completed and that A should not be
permitted to go back on his own word.”

“A and B have entered into a contract for the sale of land. A is the seller and B is the buyer,
which means that A is the transferor and B is the transferee. The transferee has paid the fee
for taking possession and is ready to fulfil his contractual responsibilities.

As the registration of the transfer of land has not occurred in this situation. A, the transferor,
wishes to expel B from the property.

In such a case, the law of Part Performance comes into play, which states that A cannot
remove B from the land because B will not be permitted to suffer just because the registration
formalities were not followed.

It may be noted 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.

Thus, the doctrine of Part Performance shall not affect the rights of a subsequent transferee
for consideration without notice of the earlier contract and of its being partly performed.”

“(Possession suit) A signed a formal contract with B to rent B's residence for two years at
Rs.1000 per month. A offered B Rs.12000 as a one-year advance rent and took possession of
just one room since B agreed to hand over control of the rest share after his son's wedding in
three days. B did not grant A possession of the remaining share of the house after the
wedding. As a result, A is allowed to keep ownership of the one room he got from the
transferor. He cannot, however, utilise Section 53A to take possession of the remaining half
of the house that was never transferred to him.”

“(As an example, A agrees to sell land to B for Rs. 50,000. B paid Rs. 40,000 to A, took
ownership of the land, and agreed to pay the remainder when it was registered. Following
that, A sold it to C for Rs.75.000 by a recorded sale-deed in favour of C. According to the
exception to Section 53A, the theory of part performance cannot influence the right of a
future transferee for the value without notification of the previous contract or its part-
performance. As a result, because B owns land, he can invoke Section 53A against C.”

Section 53A Exception

The regulation outlined in this section does not apply to/affect the right of a future transferee
for consideration who has no knowledge of the contract or its partial fulfilment.

Nature of transferee’s rights under section 53A

1. “No title or interest in property: Section 53A has no effect on the intended transferor's
ownership rights, since he or she remains the complete owner of the lands until they
are formally passed to the transferee by sale-deed.

2. Passive equity; no right of action: Section 53A only gives a right of defence; it cannot
be utilised as a sword or a shield. As a result, the scope of this clause is limited since
the transferee has no right of action.”4

Dantamara Tea Co. Ltd. v. Prabodh Kumar Das,5 The Privy Council ruled that in India, part-
performance equity was not an active equity. It gives the transferee who is in possession of
property under an unregistered contract of sale no right of action.

Essential ingredients
The following are the fundamental components of the Doctrine of Part Performance:

1.”To transfer any immovable property for consideration, the parties must enter into a
contract.

2.The transferor or someone acting on his behalf must sign the contract in writing.

3.Writing must be in such a way that the terms of transfer are plainly discernible.

4.The transferee must take possession of the property or any part of it in Part Performance of
the contract.

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

6.The transferee must have completed or be willing to complete his portion of the contract.”

4
Urwashi Ahuja, Doctrine of Part-Performance - Law Times Journal, LAW TIMES
JOURNAL (2019), https://lawtimesjournal.in/__trashed/ (last visited Apr 8, 2022).

5
Prabodh Kumar Das v. Dantamara Tea Co. LtdAIR 1940 PC 1
Scope of Doctrine of Part Performance

1. “In plain English, a transferor shall, in addition to satisfying the other conditions,
take ownership part in the execution of the contract for the property in question,
utilising the shield provided for in this article, and having done so to promote the
transaction.

2. Where the relevant contract fails to conform with the terms of a legal contract, the
court will not accept the referred-to plea. A valid contract is required for a transferor
to use insurance in this section.

3. The objective of this article is limited to the transferor establishing a ban on the
protection of the rights in connection with a property already possessed by the
transferor.

4. The clause offers no right to the transferor on an unregistered transfer to assume

custody of the transferor or any other right; it is only relevant to him as a safeguard.

5. In order for this provision to apply, the contract must be effectively connected to
activities conducted in support of the contract or actions that are explicitly mentioned
in the contract.

6. Where there is no transfer agreement or land, the application of this article is not a
problem.

7. To attract the disposition of this section, the transferor must be the owner, a sales
agreement must be concluded, and the transferor's possession must be by that
agreement, and the transferor must do something else to support the agreement, and
he must be willing and willing to fulfil his part of the agreement.”

According to the English Law of Part Performance,

1. There is no requirement for a written or signed agreement signed by the transferor.

2. The Doctrine is a legal/statutory right, not an equitable one.6

3. It may be used for both enforcing and defending rights, and it creates a title in the
transferee.

The Indian Law Of Part Performance

“Even before the Transfer of Property Act of 1882, Indian courts adopted English law of Part
Performance based on Justice, Equity, and Good Conscience. There were several points of

6
Yash Kulshreshtha & Yash Kulshreshtha, Doctrine of Part Performance under Transfer of
Property Act, 1882, NITI MANTHAN (2020), https://nitimanthan.in/blog-posts/blog-niti-
manthan/2020/07/28/doctrine-part-performance-under-transfer-property-act-1882/ (last
visited Apr 8, 2022).
view on the implementation of Section 53A before it was incorporated into the Transfer of
Property Act of 1882. Thus, prior to 1929, the Doctrine was used in certain situations and not
in others (Ariff v. Jadunath7; Mian Pir Bux v. Sardar Mhd. Tahir8). In Mohd. Musa v. Aghor
Kumar Ganguli9, the Privy Council ruled that the Doctrine of Part Performance should be
applied in India. Several years later, there were conflicting views suggesting that the Doctrine
could not be used to overrule legal agreements. As a result, the Transfer of Property Act was
revised in 1929, and the English law of part performance became a portion of Indian law. In
India, the concept is used as a shield rather than a sword, i.e., not to enforce rights, as stated
by the Supreme Court in the Delhi Motors 10case. In any event, it should be noted that the
annoyed party might be either the plaintiff or the respondent in a dispute, depending on the
circumstances.”

Distinction between English law and the regulation established by this act

In this section, the primary distinctions between English thought and law are as follows:

1. English law governs oral contracts, although this Clause applies solely to contracts in:

(a) composing or

(b) signed by or on behalf of the transferor to provide the transfer conditions.11

2. In accordance with English law –

(a) Both the transferor and the transferee may request that this contract be precisely
implemented.

(b) One may, in violation of the contract, resist the lawsuits of the other claiming
rights; however, under this section, the transferor or any person claimed in his
place shall be barred from enforcing against him and against any person claimed
in his place all rights concerning the property which the transferred person has
taken over, except as expressly provided for under the terms of the contract.

3. According to English law, “partial contract execution is only equitable rather than
legal; however, under that section, the doctrine of part performance results in a
contractual defence right; however, that right is one that the claimant may have had
under the written arrangement, if only in the absence of any formalities. For lack of
formality, the section grants the group just those privileges that would be awarded by

7
AIR [1929] Cal 101.
8
[1934] 36 BOMLR 1195.
9
AIR [1914] PC 27 (30).

10
Delhi Motor Company And Ors v. U.A. Basrurkar And Ors [1968] AIR 794, 1968 SCR (2) 720.

11
Shivam Goel, Doctrine of Part Performance under the Indian Laws - Case
Study, IPLEADERS (2018), https://blog.ipleaders.in/doctrine-of-part-performance/ (last visited
Apr 8, 2022).
 a written agreement, but it does not grant any rights that would not be granted by an
informal agreement.”

Can the third party be barred under Section 53A?

“No, a suit brought by the prospective transferee against the third party to the
contract/agreement to sell to enforce the bar imposed by Section 53A shall not be
maintainable.”12

Can the theory of part-performance be used to bring a possession suit?

Suit for Possession under Section 53A

1. “Section 53A specifically states that the transferee must have taken possession of the
property (or a portion of it), or if he is already in possession, he must stay in
possession and do the same conduct in furtherance of the contract.

2. Section 53A provides a statutory defence to a person (transferee) who lacks a

registered title-deed/or a legal instrument in his favour in order to keep (or safeguard)
his possession provided he can establish a written and signed contract and part-
performance of contract on his part (the pan-performance 55. in fact, evidenced by
possession).

3. The premise that Sec. 53A can only be invoked in defence means that the transferee
cannot utilise the clause to establish his claim to the property declared or to seek
recovery of custody of the property. In India, it is well established law that the idea of
part-performance is accessible to keep possession rather than get possession:

• When the transferee is already in possession, he may bring a suit under Section 53A
to defend his possession and to get an injunction prohibiting the transferor from
interfering with his possession.13

• If the transferee has been forcibly/illegally evicted, the transferee may seek ownership
of the property under Section 6 of the Specific Relief Act.

• When the transferee is never in possession (or has lost possession), he cannot profit
from Section 53A, because it simply serves to prevent a transferor from enforcing his
right, and does not provide the transferee any right to claim ownership.”14

As a result, Section 53A cannot be used to get property, but it can be used to keep
property.

12
Ambaden Waghubhai Haribhaidesai v. Baldevbhai BecharsinghVaghela AIR 2010 Guj. 17.

13
See Ram Cbander v Mabamj Kunwar, AIR 1939 All 611.

14
Delhi Motor Co. v UA Basrurkar (1968) 2 SCR 720.
Conclusion

“As a result, the idea of part performance is a just doctrine. It is included to prevent fraud
from taking advantage of the document's non-registration. It is founded on the notion that
equity considers purpose rather than form.15

The Registration and Other Related Laws Act amended Section 53-A of the Transfer of
Property Act (48 of 2001). As a result, the words "the contract, nevertheless, needed to be
registered, has not been registered, or" were eliminated from Section 53-A, paragraph 4 of the
Transfer of Property Act. As a result, changes were made to Sections 17 and 49 of the Indian
Registration Act of 1908. The result of these revisions is that a contract must now be
recorded. As a result, it may be stated that this Doctrine was developed in order to combat
frauds, particularly those caused by non-registration of papers.”

15
The Doctrine of Part
Performance, LEGALSERVICEINDIA.COM (2022), https://www.legalserviceindia.com/legal/article-1695-the-
doctrine-of-part-
performance.html#:~:text=Doctrine%20of%20Part%20Performance%20is,ought%20to%20have%20been%20d
one. (last visited Apr 8, 2022).