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DOCTRINE OF PART PERFORMANCE

Evolution:
The doctrine of part-performance was evolved by the Court of Equity in England. In
1677, a statute was enacted in England known as the Statute of Frauds, 1677, to
prevent the perpetuation of fraud in the transfers of land.
The doctrine of part performance is inserted by the Transfer of Property
(Amendment) Act, 1929 and is based on the equitable doctrine of part performance
in English law which is known as equity of part performance. After the Mohammed
Musa V. Aghore Kumar Ganguli (1914) , the privy council held that equity of part
performance could be applied to Indian cases. Before 1929, the English part
performance was neither certain nor uniform and in other cases it was not applied.

Meaning:
Under the TPA, 1882, Sec 53A describes part performance and it is incorporated to
prevent fraud and from taking illegal advantage on account of non-registration of
the document. The rule laid down by section 53A of TPA, 1882 is that when a party
has taken possession under a contract or already being in possession continues his
possession and that party is willing to perform his/her portion of the contract or
that party has done some act in furtherance of the contract, the other party can not
remove him/her from possession of the property.
Section 53A of TPA, 1882 operates as a bar or estoppel to the plaintiff claiming his
title and gives the defendant a right to protect his/her possession.

The Underlying Principle of Doctrine of Part Performance:


The doctrine of part performance has originated from principles of equity, justice
and good conscience. It is based on the equitable maxim, “Equity looks on that
as done which ought to be done.” When a party to a contract has performed
his/her part of the contract willingly in the confidence that the other party would
also do the same and if the other party refuses to perform his/her part then doctrine
of part performance comes into play and protects the interest of the performing
party and safeguards his/her possession which is obtained in furtherance of a
contract.

ubi jus ibi remedium : There is another equitable maxim which is relatable to
this doctrine, namely ubi jus ibi remedium (where there is a right, there is a
remedy). When a party is ready and willing to perform his obligations under a
contract it is obvious that the party has gained some interest or right in that
property so that party should have a remedy in law too. Otherwise it will be grave
injustice.
Essential Ingredients :

Bombay High Court in Kamalabai Laxman Pathak v. Onkar Parsharam


Patil, has given emphasis on the ingredients of the Section 53-A which are as
follows:
1. Contract for Transfer of immovable property:
For the application of this section, the first condition is that there must be a
contract and the contract must be transfer of immovable property for value.

a) Written contract:
The contract must be written. Section 53 –A is not applicable if the contract for
transfer is oral. The benefit of section 53-A is not available to a person who is in
possession of property based on oral agreement of sale. Writing alone is not
sufficient. The contract must also be duly executed. That is to say, it should be
signed by the transferor or by any other person on his behalf.

b) Valid Contract:
It may be noted that Section 53-A is applicable only where contract for the transfer
is valid in all respects. It must be an agreement enforceable by law under the Indian
Contract Act, 1872.

c) Immovable property:
This section is applicable only in case of transfer of immovable property. It does not
apply to an agreement for the transfer of movable property even though supported
with consideration. The defense of Part Performance is not available in respect of
possession of movables (Hameed v. Jayabharat Credit & Investment Co. Ltd and
Ors.)

2. Transfer for consideration:


The written contract must be for the transfer of an immovable property for
consideration. The written contract on the basis of which the property has been
possessed, must clearly suggest the transfer of property. If the document is
ambiguous or confusing, this section cannot be made applicable. It is one of the
necessary ingredients of section 53-A that the terms of written contract must be
ascertainable with reasonable certainty .

3. Possession in furtherance of Contract:


The Transferee has taken possession or continues possession in part
performance of the contract or, has done some act in furtherance of the contract
4. Some Act in furtherance of the contract:
Taking possession is not only the method of part performance of contract. If the
transferee is already in possession of the property then, after the contract of
transfer, he has to do some further act in part performance of the contract
(Nathulal v. Phoolchand).

5. Transferee is willing to perform his part of contract:


Section 53-A is based on the principle of Equity. Equity says that one who seeks
equity must do equity. Therefore, where a person claims protection of his
possession over a land under section 53-A, his own conduct must be equitable
and just. It is an essential condition for the applicability of this section that the
transferee must be willing to perform his part of contract.

Purpose of Doctrine of Part Performance :

The aim of incorporation of Section 53A in 1929 is to prevent fraud and injustice.
The doctrine of part performance has its root in the principles of equity, justice and
good conscience. It would be grave injustice if there is no remedy for the party who
has performed his/her part of the contract in the confidence that the other party
would also perform his part of the contract.

Section 53A of TPA, 1882 is a defensive provision. The defendant who has been
ejected from an immovable property can use section 53A as a defense to protect his
lawful possession if all the requirements of this section are fulfilled.

So, the main purpose of section 53A is to act as a shield for the defendant.Under
section 53A doctrine of part performance can be used by the defendant merely as a
shield to protect his/her possession. The defendant cannot use this section as a
weapon to establish his/her claim or title in the property in furtherance of a written
agreement. Under section 53A it is a statutory right for safeguard of possession on
the contrary, under english law it is an equitable right.

Scope of Applicability of Doctrine of Part Performance:

Prior to 1929 the doctrine of part performance was inapplicable in this sub-
continent. By the amending Act of 1929 section 53A has been inserted in TPA, 1882.

After 1929, under section 53A a person was able to defend his possession under a
contract although the contract under which he holds possession is not registered as
required by the law.
By virtue of the amendment brought about to Section 53A in 2004 with effect from
1st July, 2005 by the Act 26 of 2004, at present section 53A will be applicable only
to a contract which is duly registered under section 17 of Registration Act, 1908. An
unregistered contract will not entitle the defendant to protect his possession by
invoking section 53A of TPA, 1882.
The defendant can rely on this doctrine only when the contract is proved to be
genuine and duly registered. This section is not applicable to oral contracts. This
section is also inapplicable in respect of a contract which is void ab initio.

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