SECTION 53A

THE DOCTRINE OF PART PERFORMANCE

THE TRANSFER OF PROPERTY ACT, 1882

MANAS DAWAR
IV SEMESTER
BBA-LLB (HONS.)

TABLE OF CONTENTS
1.
2.
3.
4.

INTRODUCTION....2
RESEARCH OBJECTIVES.3
RESEARCH QUESTIONS...3
4.1 The need to add Section 53A to The Transfer of Property Act.3
4.2 How does Indian doctrine of part performance differed from the English one?...3
4.3 Essential conditions which need to be fulfilled in order to claim protection of
53A4
5. LANDMARK CASES..6
6. CONCLUSION.8
7. BIBLIOGRAPHY.8

PART PERFORMANCE

1. INTRODUCTION
1.1 The basic idea of part performance has been taken from English Law. This principle
though is an English doctrine, but in India it has been incorporated with some changes.
Thus, the English and Indian principle of Part Performance differs. This principle was
brought by the amendment made in the Transfer of Property Act. Before the amendment,
the English doctrine was applied to the cases of part performance.
Section 53A of the Transfer of Property Act, 1882 seeks to protect the prospective
transferees by allowing them to retain the possession over the property, against the rights
of the transferors, who after the execution of an incomplete instrument of transfer, fails to
complete it in the manner specified by law, without there being any fault on part of the
transferee.1
Illustration: P contracts with Q to sell his property for Rs. 20,000. P accepts the advance
from Q of the payment and hands over the possession of the respective property to Q. After
some time when Q wishes to pay the remaining amount P refuses to accept the same and
asks Q to handover the property back to him. Here Q is willing to perform his part of the
agreement but P is not. In such a case, Q can bring a case requiring specific performance
from A. It doesnt matter if the sale is registered or not.
According to law, any immovable property valued over Rs. 100 which has been transferred
needs to be registered. But it was believed that strict compliance may lead to extreme
hardships especially in cases where one party has performed their part of the contract in
confidence that the other party will do the same. In case registration of property or any
other formality has not been fulfilled, the doctrine of part performance comes into play. In
the above case, the transferee took the possession of the property can he cannot be evicted
due to an unregistered contract. This section is a defense as well as a right that helps protect
the possession against any challenge. The basic objective of this section is to prevent fraud
on the mere basis of insufficient evidence of the transfer. This section doesnt confer a title
upon the transferee in possession of the property but bars the transferor.

The Doctrine of Part Performance- Ankita Singh

PART PERFORMANCE

2. RESEARCH OBJECTIVES
a. To critically analyze Section 53A of the Transfer of Property Act i.e. Part
Performance.
3. RESEARCH QUESTIONS
a. What was the need to add Section 53A to the Transfer of Property Act?
b. Difference between English & Indian Doctrine of Part Performance.
c. What are the conditions which need to be fulfilled in order to claim protection
of Section 53A of the Transfer of Property Act?
4.1 THE NEED TO ADD SECTION 53A TO THE TRANSFER OF PROPERTY ACT
Before the addition of Section 53A the cases associated with part performance were
governed according to the English doctrine of Part performance. But due to some
controversial decisions in different cases like in the case of Kurri Veerareddi vs. Kurri
Bapireddi, the full Bench of Madras High Court ruled in 1906 that the English doctrine of
Part Performance was not applicable in India. Thereafter, in the case of Md. Musa vs.
Aghore Kumar Ganguli, the Privy Council held in 1914, that the English doctrine of Part
Performance was applicable in India on the principles of Justice, equity and good
conscience. Again, in 1928, in the case of Ariff vs. Jadunath, the Privy Council held, going
back to the view of Madras High Court, that the English doctrine of Part Performance was
not applicable in India2. Hence, to settle the debate for once and for all, in 1929, Section
53 A was introduced, to incorporate the doctrine of Part Performance, by amending the
Transfer of Property Act.
4.2 HOW DOES INDIAN DOCTRINE OF PART PERFORMANCE DIFFERED FROM
THE ENGLISH ONE?
The difference between the English and Indian doctrine of part performance is follows
English Doctrine of Part Performance

Indian Doctrine of Part Performance

1) The contract may be oral or written.

1) The contract has to be written and
2) The right under the doctrine is an
signed by the transferor.
equitable right
2) It is a statutory right
3) It can be used for enforcing the right as 3) It can only be used by the transferee to
defend his possession over the property.
well as defending the right
2

http://www.lawstudentshelpline.com/index.php/transfer-of-property-act/2-uncategorised/172-q-explain-thedoctrine-of-part-performance-with-special-reference-to-leading-cases

PART PERFORMANCE

4.3 ESSENTIAL CONDITIONS WHICH NEED TO BE FULFILLED IN ORDER TO

CLAIM PROTECTION OF 53A
The essential conditions required to be fulfilled for claiming protection of Section 53A of
the Transfer of Property Act are as under3:
(i)

(ii)

There must be a contract between the two parties to transfer for

consideration any immovable property.
Section 53A applies to leases and agreement to lease4 where in an action to eject
a lessee on the ground that he had no registered deed of lease executed in his
favor the defendant lessee takes the plea of part performance and proves that
there was a written and signed contract of lease in his favor and that he had taken
possession in accordance with the terms of the agreement and had built a factory
on the land and also that he was paying rent to the plaintiffs in accordance with
that agreement the defendant is entitled to retain possession in spite of an
absence of the registered deed.]. Agreement to lease may be evidenced by
correspondence.
Section 53A applies to mortgages with possession.
If the agreement is void under any law, section 53A will not protect possession.
The protection of part performance cannot be availed in respect of a transaction
which is null and void5.
In case of an agreement conditional on compliance with statute, there is an
implied term in the contract that transferor will apply for requisite 6 permission
and the court will direct him to do so.6

The contract must be in writing, signed by the transferor, or by someone on

his behalf.
A formal agreement between the two parties is not necessary.

(iii)

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

(iv)

The transferee must in part performance of the contract take possession of

the property, or of any part thereof,

Rambhau Namdeo Gajrav Narayan Bapuji Dhotra (2004) 8 Supreme Court Cases 614
Maneklal Mansukhbhai V. Hormusji Jamshedji Ginwalla & Sons AIR 1950 SC1
5
CIT v. Vithalbhai P. Patel (1999) 236 ITR 1001
6
Nathulal V. Phoolchand AIR 1970 Supreme Court 546
4

PART PERFORMANCE

 A direct agreement regarding transfer of possession of property is not necessary.

It is only necessary that possession should have been taken (need not be given)
in part performance of the contract.
Where only temporary possession was given for carrying out construction, it was
held that the exclusive possession in the legal sense remained with the Transferor
and the Transferee was not entitled to protect his possession under Section 53 A
of the Transfer of Property Act.
It is not necessary that the transferee must be in possession of the entire property.
It is enough if the transferee continues in possession or takes possession even of
a part of the property.
(v)

The transferee must have done some act in furtherance of the contract.
There should be real relationship between the contract and the acts pleaded as in
part performance.
Continued possession of a tenant in the property after entering into the sale
agreement would not by itself amount to a part-performance. There must be
some act attributable to the contract for sale and not lease.
A renter who continued to be in possession as renter, cannot take benefit of
Section 53A, though subsequently an agreement to sale is entered between the
parties. Where the person puts up construction after being put in possession
under the contract of sale or takes electricity connection, he can gain protection
of Section 53A of the Transfer of Property Act.

(vi)

The transferee must have performed or be willing to perform his part of the
contract.
The acts claimed to be in part performance must be clearly referable to the preexisting contract.
Section 53A confers no rights on a party who was not willing to perform his part
of the contract.
The defence can only be taken only in one condition that the transferee continues
to be willing to perform his part of the contract.

(vii)

The document containing contract for transfer of immoveable property, if

executed on or after 24th September, 2001 should be registered.
Part performance applies even if specific performance is not otherwise
permissible. The protection under section 53A can be availed of only under
a registered agreement.
PART PERFORMANCE

5. LANDMARK CASES
5.1 Srimant Shamrao Suryavanshi and Anr. V. Prahlad Bhairoba Suryavanshi, (2002) 3
SCC 676
FACTS: The respondent signed an agreement to sell his agricultural land to the appellant.
The appellant in order to fulfill the agreement got the possession of the land. After the
performance of the agreement, it came into the knowledge of the appellant the respondent
is negotiating a deal for the same piece of land with another respondent for which the
appellant filed this case. The appellant filed for restriction and a restriction order was
passed in favor of the appellant, yet the respondent managed to sell the land through a
registered sale deed. The transferee did not bring any suit within the limitation period for
specific relief.
ISSUE: Whether the appellant can defend his possession over the land by way of Part
Performance under Transfer of Property Act even after the suit for specific performance
for a contract to sale is barred by limitation?
HELD: Even if the limitation period was over, a person can obtain possession of property
in part performance of a contract to sale; the transferee can defend his possession in case
filed by the transferor. but this can only be done is the transferee can well prove that he has
done some act in furtherance of the agreement or the contract or is willing to perform his
part of the act in furtherance of the contract. This was interpreted so as there was not
expressly said that the plea of part performance cannot be taken once the time limit for
filing a suit for specific performance is expired.7
In this case, all the requirements of Part Performance were fulfilled and the transferee
proved that he wanted to perform his part of the contract which fulfils the essential of
performing some act in maintenance of a contract.
The appeal in this case was allowed by the court as it was clear that the appellants were
willing to perform their part of the contract.

The Doctrine of Part Performance- Ankita Singh, RMNLU

PART PERFORMANCE

The court has rightly applied the concept of part performance in the above mentioned case.
The appellant was able to prove that the wanted to perform his part of the agreement which
is an important essential in order to take defence of the doctrine. As, along with this all
other requirements were also proved in the court. Hence, it was the right of the appellant
to have the defence of the doctrine which the court provided.
5.2 Babu Murlidhar v. Soudagar Mohammad Abdul Bashir and Anr, AIR 1970 Kant 203,
AIR 1970 Mys 203.
FACTS: In this case, an unregistered contract of sale was executed by the mortgager,
Plaintiff in favor of the mortgagee, Defendant who was in possession of the property and
would become the owner of the property if his name could be changed into the register of
the municipality. The mortgager himself, in furtherance of the agreement to sale made an
application for changing of name to municipal authorities and mortgagees name was
registered as the owner of the property.
ISSUE: Can the Mortgagee defendant avail the defence of Part Performance in this case?
HELD: An act should be done by the transferee in furtherance of the contract to transfer of
property in order to avail the defence of part performance.
Since, the mortgagee himself made an application to change the documents to the
municipal authority and that the mortgagees name was duly registered as the owner of the
property, it was thus an act done in order to complete the agreement to sale. Since, all the
requirements of the part performance met and that it was clear that the mortgagee had done
some act in furtherance of the agreement of sale, thus, the court said that the mortgagee
can avail the defence of part performance.
The Court held that the act done by mortgagee was sufficient enough to protect him under
Section 53A of the Transfer of Property Act, 1882 as he was able to prove that there was
some act done in order to fulfill his duty of the contract to sale.
Thus, the court dismissed the petition.

PART PERFORMANCE

As per Section 53A, there must be an act done in furtherance of contract by the person
claiming defence of part performance. In this case, the mortgagee filed for changing
documents in his name. This act was sufficient to prove his willingness to perform his part
of the contract. Hence, the court provided him relief of protecting his right to possession
over the property. The decision of the court was justified.
6. CONCLUSION
The phrase part performance is a misleading term. Cases shouldnt be taken out of
the statue because of certain types of acts of part performance, but just to prevent fraud.
7. BIBLIOGRAPHY
7.2 BOOKS REFERRED
1. The Transfer of Property Act, 3rd Edition- Avatar Singh
7.3 STATUES REFERRED
1. The Transfer of Property Act, 1882
7.4 WEBSITED REFERRED
1. www.lawstudentshelpline.com
2. www.advocatekhoj.com
3. www.lawoctopus.com
4. www.lexisnexis.in/legal
7.5 ARTICLES & WRITINGS REFERRED
1. The Doctrine of Part Performance- Ankita Singh, RMNLU
2. The Doctrine of Part Performance- Kabir Hossen
7.6 CASES REFERRED
1. Babu Murlidhar v. Soudagar Mohammad Abdul Bashir and Anr, AIR 1970 Kant 203,
AIR 1970 Mys 203.
2. Srimant Shamrao Suryavanshi and Anr. V. Prahlad Bhairoba Suryavanshi, (2002) 3
SCC 676
3. CIT v. Vithalbhai P. Patel (1999) 236 ITR 1001
4.
5.
6.
7.
8.
9.

Nathulal V. Phoolchand AIR 1970 Supreme Court 546

Rambhau Namdeo Gajrav Narayan Bapuji Dhotra (2004) 8 Supreme Court Cases 614
Maneklal Mansukhbhai V. Hormusji Jamshedji Ginwalla & Sons AIR 1950 SC1
Kurri Veerareddi vs. Kurri Bapireddi
Md. Musa vs. Aghore Kumar Ganguli
Ariff vs. Jadunath
PART PERFORMANCE