SANDESH COLLEGE of LAW

SY LLB - 2020-21 (3rd Semester)

Subject: Transfer of Property

Name : KAMLESH UTTAM RAJANE

Division : B

New Roll No : 19

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 ASSIGNMENTS

Assignment No: 1

Discus the right of an unborn child under Transfer of Property Act, 1882 with
two landmark cases.

Answer:

Property and Law regulating the ‘Transfer of Property’

The word ‘property’ has a very wide scope. An entity which is virtual or
physical in nature and owned either jointly by a group of individuals or an individual
is known as property. A Property can be either immovable or movable in nature.
Also, the property comprises of both tangible such as money and intangible rights
such as element or source of wealth or income.

Every person is allowed to dispose of or enjoy his/ her property until and
unless he makes use of his property for something which is restricted by law. The
rights vested with the property are in the hands of the owner of the property.

When a transfer of property takes place, all the rights that are associated with
the property gets transferred. On the other hand, some arrangements are to be
made in such a manner that not all the rights attached with the with the property get
transferred but just some of them.

The transfer of property is regulated with the help of the legislation known as
the Transfer of Property Act, 1882 in India. It was implemented on July 1, 1882. This
legislation explains everything concerning the transfer and all other conditions that
are attached to the transfer.

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Unborn Child

Unborn child refers to an individual who is not yet born or is not in existence
but will come into existence in future. A child in a mother’s womb is not a person in
existence. Although it has been treated under both the Hindu and Muslim law.

Legal status of Unborn Child

An unborn child is termed as a person post his/her birth. As per the property
law, the unborn child can attain definite rights and inherit the property but only in
case he or she is born alive. Although the unborn child cannot be considered as a
person, yet his/her rights can be vested in the hands of his/her trustees.
By the time he/she is born, till then all the rights lay in the name of his or her
parents/trustees.

Conditions required for the transfer of property to an unborn child

Section 13 of the transfer of property act states that “Where, on a transfer of

property, an interest therein is created for the benefit of a person not in existence at
the date of transfer, subject to a prior interest created by the same transfer, the
interest created for the benefit of such person shall not take effect, unless it extends
to the whole of the remaining interest of the transfer in the property.”

The transfer of property takes places between two persons living which
means that there cannot be a transfer to a person who is not born yet or not in
existence. This is the reason why section 13 of TOPA uses the term ‘for the benefit
of’ and not transfer ‘to’ unborn person.

A child in a mother’s womb is considered to be a person competent of the

transfer. Therefore, a property can be transferred to a child in her mother’s womb
because the child exists but not to an unborn person who does not even exists in the
womb of her mother.

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 With every transfer of property, there is a transfer of interest which states that
as soon as the property gets transferred in the name of transferee the interest is
vested in the transferee. Therefore, it is necessary that the transferee should be in
existence when the transfer is made. This is against the very concept of an interest.
For a transfer of property for the benefit of the unborn person two conditions are
necessary to be fulfilled:

1. Absolute interest must be made in the favor of unborn child, and

2. Prior life interest must be created in favour of a person in existence at the
date of transfer.

Pre-requisite for a valid transfer of property to an unborn person

Section 13 is enacted for the valid transfer of property to an unborn person.

The procedure for the same are as follows:

1. No Transfer: A property can be transferred to an unborn child via trusts and

not directly. If the trust in not present, then in such a case the property rights
are created in the name of a living person and later transferred to the minor.

2. Prior Interest: Till the unborn does not come in this world, the property rights
can be enjoyed by the trustee or the person(s) in whose name the property is
vested.

3. Immediate transfer of rights: As soon as the unborn child takes birth, the
property rights immediately gets transferred in his/her name. Post which he or
she will be the sole owner of the property

General Rule of Transfer of Property

Section 5 of the transfer of property act provides 1882, provides transfer

between the living persons.

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Exception-

There are certain section in this act which lay down certain rules regarding
transfer for the benefit of an unborn person.

Section 13

Transfer for the benefit of unborn person-

Where, on a transfer of property, an interest therein created for the benefit of

an person not in the existence at the date of transfer, subject to a prior interest
created by the same transfer, the interest created for the benefit of such person shall
not take effect, unless it extends to the whole of the remaining interest of the
transferor in the property.

Principle underlying section 13

The underlying principle in section 13 is that a person disposing of property to

another shall not fetter the free disposition of that property in the hands of more than
one generation.

Rules underlying section 13

No direct transfer Property cannot be transferred directly to an unborn person

but property can be transferred for the benefit of an unborn person. Sec 13 provides
that property can be transferred for the benefit of an unborn person subject to
following conditions:

• Transfer for the unborn must be preceded by a life interest in favor of a

person existing at the date of transfer.

• Only absolute interest may be transferred in favor of an unborn person.

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Prior life interest

The transfer for the benefit of an unborn person must be preceded by a life
interest in favour of person living person in existence at the date of the transfer. So
that such living person holds the property during his life and till the time the unborn
would come in the existence. After the termination of this life interest the property
would pass on ultimately to the unborn person who, by that time comes into the
existence.

Absolute interest

Only absolute interest may be transferred in favor of an unborn person.

Limited interest cannot be given to unborn person. sec 13 says that interest given to
an unborn must be the whole of the remaining interest of the transferor in the
property .When a property is transferred in favor of an unborn person The transferor
first creates the life interest and after transferring the property, he retains with him
the remaining interest of the property. After termination of the life interest the unborn
gets the absolute interest in that property.

This has following legal consequences:

• The intermediary person living at the date of transfer is to be given only life
interest. Giving the life interest means giving him a right to enjoyment or
possession. He has to preserve the property like a trustee. After the
termination of life interest, the whole property or interest would be given to
unborn person who came in existence.
• The unborn must come in existence before the death of the person holding
the property for life. If the unborn person come in the existence after one
month, the property would be revert back to transferor or his legal heirs.
• This is obvious because after the termination of life interest, it cannot remain
in abeyance.

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Some Illustrations:

a. A gives property to B for life, and afterwards to his son (unborn), subject to the
condition that if the son changes his religion, the property should be forfeited.
Here the condition regarding change of religion fetters the estate, and does
not therefore comply with Section 13, which speaks of the whole of the estate.
b. A transfer his properties to X for life and then to Y for life and then to Z for life
and thereafter to the unborn child of Z. Here, X, Y and Z are all living persons
in existence at the date of the transfer. This disposition of property is valid.
The property may be given to more than one living persons successively for
life' before it ultimately vests in the unborn (Z's unborn child).
c. A transfer his properties to X for life who is unmarried and then to the eldest
child of X absolutely. The transfer in favour of eldest child of X is valid.

Section 14- Rule against perpetuity

No transfer of property can operate to create an interest which is to take effect

after the life-time of one or more persons living at the date of such transfer, and the
minority of some person who shall be in existence at the expiration of that period,
and to whom, if he attains full age, the interest created is to belong.
There cannot be a creation of the perpetual life succession of a property. After the
last life interests, the property must eventually rest in someone and cannot be
perpetually delayed. If the property is transferred in the favour of the unborn person,
the unborn person should be in existence before the death of the last intermediary
(section 13).

The rule of perpetuity states that if there is a transfer of property the vesting
time should not be beyond the life period of one or more persons and the minority of
the person in whose interests the property is transferred. If the vesting period is
beyond the mentioned time, then the bequest is void.

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Section 20- When unborn person acquires vested interest on transfer for his
benefit

Where, on a transfer of property, an interest therein is created for the benefit

of a person not then living, he acquires upon his birth, unless a contrary intention
appears from the terms of the transfer, a vested interest, although he may not be
entitled to the enjoyment thereof immediately on his birth.

The provision mentions the circumstances under which vested interest is

acquired by the unborn person. The unborn person does not get possession of the
property, which is transferred for his benefit, as soon as he is born, but he does
acquire a vested interest in the property upon his birth. Such interest remains vested
even though he is not entitled to the enjoyment. This provision can be waived off if
something contrary is mentioned in the contract.

If an estate is transferred for the benefit of an unborn child and a period is

mentioned in the contract according to which, such unborn child, after his birth, is
entitled to enjoyment then also the child would acquire the vested interest in the
property upon his birth.

Analysis of the Provisions related to the Transfer to Unborn

To understand the concept of transfer to unborn person it is necessary to read

sec 13 and sec 14 together as in practical application these provisions are applied
hand in hand.

The property act does not allow direct transfer to the unborn child. In order to
transfer property to unborn child, it is necessary to transfer the property to a living
person before and create a prior life interest. The property necessarily must vest in
someone between the dates on which it is transferred to the date on which the
person to whom it will be ultimately transferred, is born. Also, the interest which is
extended to the unborn person should include the remaining interest of the
transferor. This condition makes it impossible to create a life interest in the unborn
child and thus does not restrict the free disposition.
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 Creating successive interest is not prohibited. But there should not be limited
interest transferred to an unborn child. Section 14 of the act prohibits the interest
which vests in the unborn person after the death of the person in which the prior
interest is created and the minority of the unborn person. Further, the unborn person
should come into existence before the death of the intermediary holding the prior
interest.

Conclusion

The property act allows the transfer of the property in favour of the unborn
person, provided that a prior interest is created in a living person. This prior interest
shall be for life whereas the interest in the unborn person shall be absolute. Further,
the interest in favour of unborn person is created only when it is in its mother’s
womb. And the unborn person would be vested with its interest upon his birth.

Transfer in favour of unborn person is a welcomed provision. Its major fallacy,

that is restriction of disposition, is removed by its subsequent section by the rule
against the remoteness of vesting; thus protecting the society from suffering the
stagnation of property and its eventual effect, which can be detrimental to trade and
commerce. These provisions, thus, ensure free and active circulation of the property
for the betterment of the society.

Case Laws:

Case Law-1 - Girjesh Dutt vs. Data din (AIR 1934) 147 IC 991
This case is landmark case of section 13 of Transfer of Property Act. Section 13
talks about the transfer for the benefit of an unborn person.

Facts of the Case:

• “A” transferred gift to “B” (Nephew daughter). Then to B’s male descendant. In
case of absence of B’s male child to B’s daughter (limited interest was
created) and absence of B, any descendant male/female to A’s Nephew.

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 • But B dies issueless.
• Gift in favour of B was valid but gift made in favour of B’s daughter was void
as limited interest was created and according to section 13, interest created in
favour of unborn person should be absolute interest.
• Further subsequent transfer to A’s nephew will also fail as per section 16 of
Transfer of Property act, 1882.

Held:

The court held that the gift for life to B was valid because B was living person
at the date of transfer but gift in favor of B’s daughter was void under sec 13 of
transfer of property act because it was given only limited interest she had not given
absolute interest .since this transfer was invalid the subsequent transfer depending
on it also failed.

Applicability under Hindu law and Muslim law

Under pure Hindu law, a gift or bequest in favor of an unborn was void. But
now, since transfer of property act is applicable on Hindus, the transfer in favor of an
unborn person is valid if it is made subject to the provision of section 13 of the act.

Since section 2 of TPA provides that nothing shall be deemed to affect any
rule of Mohammedan law, section 13 is not applicable to transfers made by Muslims.
However, under Muslim law too a gift in favor of a person not in existence has been
held void.

Indian succession Act, 1925:

Section 13 is almost identical with section 113, Indian succession act, 1925
the difference between the two sections is that the formal relates to transfer inter
vivo, while the latter deals with bequest which take effect only on the death of the
testator. Section 13 controls section 113 and therefore, both these sections read
together.

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Case Law-2 - Isaac Nissim Silas And Ors. vs Official Trustee of Bengal on 9
May, 1956

The trust was a family trust created for the benefit of settlor and his wife his
two sons and their children to be born. This trust was formed by Issac Nissim Silas
the settlor by an Indenture of Trust dated 1-4-1931. The Official Trustee of Bengal
has been made a trustee and the property was conveyed to the trustee to be held by
him upon trust set out in the said agreement. At the date of the trust the settlor's
family consisted of his wife and his three children in equal parts.
The trust deed provided that the trustee after making provisions for meeting the
necessary expenditures the property will remain in lifetime of settlor, thereafter to his
wife, thereafter to his three sons in equal shares. Remainder in favour of the son's
children that are unborn and remain alive at a certain period subject to certain
restrictions. The legality of the gift made in favour of the grandsons was questioned.

Held:

It was held that the trust in favour of the grandchildren in deed of trust amount
to curtailment of such absolute gift and such was void.

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Assignment No: 2

Question 1:

Write short note on Doctrine of Lis pendens (with one leading judgment)

Answer:

In general parlance, Lis Pendens refers to a pending legal action or a formal

notice of a legal action. The doctrine of Lis Pendens has been inscribed in the Indian
Legislative regime by way of Section 52 of The Transfer of Property Act, 1882. The
section states that “Transfer of property pending suit relating thereto.— During the
pendency in any Court having authority within the limits of India or established
beyond such limits by the Central Government of any suit or proceedings which is
not collusive and in which any right to immoveable property is directly and
specifically in question, the property cannot be transferred or otherwise dealt with by
any party to the suit or proceeding so as to affect the rights of any other party thereto
under any decree or order which may be made therein, except under the authority of
the Court and on such terms as it may impose.”

The major idea lying behind Section 52 is that in a suit, which is still pending
in terms of its determination, the status quo should be maintained and therefore it
should remain unaffected by the act of any of the parties to the suit. It makes it
expressly clear that in a case where the dispute between any of the parties is with
regard to the right of any immovable property, such property cannot be transferred
by any of the parties to the suit which as a result may affect the rights of the other
party involved in the dispute. This principle does not get eliminated after the
dismissal of the suit. After the dismissal of the suit and before filling of the appeal,
the ‘lis’ continues to exist and hence the defendant can be prevented from
transferring the property to the prejudice of the plaintiff. The explanation to the said
section makes it clear that the lis shall be deemed to have commenced from the date
when the plaint shall be presented in the court and shall continue to exist till the time
such suit or proceeding has been decided and a final order or decree has been

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obtained accompanied with complete satisfaction or discharge of such degree or
order.

Conditions to constitute Lis pendens doctrine

In order to constitute the Les Pendens the following conditions must be satisfied.

1. Litigation should be pending in a court of competent jurisdiction.

The suit commences on the date of filing of the plaint and it is deemed to
continue until a final decree or order has been passed determining that matter. That
means the suit is considered to be pending even if there is a chance of appeal
against the decree determining that suit or the execution of the decree is pending.

Example: A dispute regarding the title of the property X arose between A and B. A
was then in the possession of X. The matter was brought before the District court.
The District Court passed the decree in favour of A. While the decree was
appealable, A sold the property X. The transfer would be considered via Section 52
or the Doctrine of Lis Pendens.

2. The suit must be relating to the right in a specific immovable property.

The doctrine applies in the case of immovable properties only and not where
the subject matter is movable property. The litigation must involve a specific right in
immovable property, such as a dispute with respect to title, possession or a right of
alienation, etc.

The doctrine applies to the sale, specific performance of a contract, mortgage

suit, easements, pre-emption, the charge created by Hindu widow on the Hindu Joint
Family Property etc. and is not applicable to the suits related to debts, rents,
accounts (house tax) etc.

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3. The suit should not be collusive.

The term collusive suit depicts ‘the suit filed with conspiracy’. It is a sham suit.
Here, the parties to the suit enter into an agreement with the intention to defeat the
rights of the transferee. The suit presented or pending must be genuine and not a
collusive one.

Example: A was familiar with the fact that the property belonged to Mr B. They
entered into an agreement and decided together to go for litigation where A would
question the title of B over the property. During the pendency of the suit, A professed
to transfer the property to C for money. In this case, the property would go to C and
the doctrine of Lis Pendens will not be attracted.

4. Property should not be transferred or otherwise dealt with

The term transfer includes absolute transfer as well as the partial transfer.
The doctrine applies to the sale, a grant under the lease, mortgage etc. the transfer
here means the transfer covered by Transfer of Property Act, 1882. ‘otherwise dealt
with’ includes the cases which are not covered by the Transfer of Property Act, 1882.
It includes the cases of partition.

Any transfer made with the permission of the court and in accordance with the
term imposed by it, will not be subject to the rule of Lis Pendens.

5. By any party to the suit

The parties to the suit include the ones who file the plaint or petition i.e. the
plaintiffs and the ones against whom the relief is prayed for i.e. the defendants, or
their representatives on their demise. The transfer made by a person before the
party to the suit is not affected by the doctrine of Lis Pendens.

Example: A is the owner of the property X, which is managed by B with the

permission of A. B sells the property to C. A files a suit against B reclaiming the
possession of the property X and C is not made the party to the suit. Meanwhile, C
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sells the property to Y. As C is not the party to the suit, the transfer made by him will
not be affected by the doctrine of Lis Pendens.

6. So as to affect the right of any party thereto

Example: A, the landlord filed a plaint against B (tenant), that he has not paid the
rent for two months. Meanwhile, A transfers the property, which is the subject matter
of the suit, to C. It does not fall under Section 52 as it does not affect the rights of
another party.

The test to determine the applicability of Section 52 is the nature of the claim
in the suit and not the property in dispute.

7. Till the final disposal of the case.

It implies that there is no chance of any appeal against the decree of the court
in that particular case nor is the execution of the decree pending. Once the case is
finally disposed of, the transfer will not attract Section 52 as the main ingredient of
the doctrine is the pendency of the suit and the pendency of suit ends as soon as the
case is finally disposed of.

The preliminary assumption behind the doctrine of lis pendes is that if the
parties to a dispute are not prohibited from transferring any of the property then
successive alienations shall take place. In such a situation it would become
impossible that the action or suit be successfully terminated. With this as a
consequence, the court would be unable to dispense its function of protecting the
suitors from future injuries. The principle imbibed in this section finds its genesis in
the Common Law maxim of ut lite pendent nihil innovator i.e. during the pendency of
litigation; no new rights shall be introduced. As a rule of justice equity and good
conscience, this principle gets applied even in those laws where the Act is not
applied.

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Non-applicability of the Lis Pendens doctrine

Lis pendens does not necessarily get applied in every case. Following are
Certain instances where this doctrine does not get applied.

1. A sale made by the mortgagee in the exercise of the power as conferred by

the mortgage deed. The principle of lis pendens shall not be applied in this
case and therefore the sale remains valid, though made during the pendency
of a suit filed by the mortgagor.
2. In matters of review
3. In cases where the transferor is the only party affected
4. In cases of friendly suits
5. In cases where the proceedings are collusive
6. In cases of execution proceedings where the order is passed against the
intervener
7. In such matters, an appropriate remedy shall be a suit filed under order 2, rule
63 of the Code of Civil Procedure, 1908
8. In case of suits involving pending transfers by a person who is not a party to
the suit
9. In cases where the property has not been properly described in the plaint
10. In cases where the subject matter of rights concerned in the suit and that
which are alienated by transfer are different

Exceptions

The section provides that it is open to the court to permit any party to the suit
to transfer the property to on terms which it may think fit to impose.

The principles mentioned in section 52 of Transfer of Property Act are

according to the principles of justice, equity and good conscience:-

1. They depend upon an equitable and just principle that it will be impossible to bring
upon an action against successful termination if transfer is permitted to prevail.

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2. A transferee during a case is bound by the decree is the same manner as he was
bound when he was a party to the suit.
3. According to section 52, mere pendency of a suit does not restrict any of the
parties from dealing with the property which includes the subject matter of the suit.
4. The section also says that the transfer in no manner will affect the rights of the
other party under any decree which may be passed in the suit unless the property
was transferred with the permission of the court.

CONCLUSION

The rights under Section 52 can be used both ways as a sword and a shield,
which totally depends on the facts such as:-

1. What interest or right is transferred

2. Who is the affected party
3. How and in what manner the transfer will affect any party to the pending case.

This section can be used as a shield in the same or subsequent proceedings

between the same parties. For using this section as a sword, a person must
however, first know his right to do so when, in any proceedings an objection is taken
to his claim to do so.

Transfer can be void as per the provisions of this section only when it is
established that is has affected the rights of any other party to the suit. If the party
challenges such transfer on the basis of doctrine of Lis pendens, it has to establish
that transfer was made with a view to affecting the rights of the plaintiff under an
order which may be passed in the case.

With the view of this doctrine, it has been intended to strike at attempts by the
parties to the suit to reduce the jurisdiction of the Court by private dealings which
may remove the subject matter of litigation from the Court to frustrate its decree.

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Case Law

Hardev Singh vs. Gurmail Singh,

FACTS:
1. Harcharan Singh, the original Defendant No.1, allegedly transferred some
properties in favour of his wife Udham Kaur in lieu of maintenance pursuant to a
compromise entered into by and between them.
2. She claimed herself to be the absolute owner thereof in terms of Section 14(1) of
the Hindu Succession Act. 1956.
3. She filed a suit against her husband Harcharan Singh for a declaration that she
was the owner in possession of the suit land.
4. The learned Trial Judge was of the opinion that as she had been in possession of
the property in lieu of maintenance, she was ’entitled to enjoy the fruits thereof only
during her life time’.
5. An appeal was preferred thereagainst, and the Appellate Court declared her to be
the full owner in possession of the suit land.
6. Indisputably, during pendency of the said suit, Harcharan Singh sold the said land
to the respondent herein by a deed of sale dated 17.3.1982 and he had been given
possession thereof. Another suit was filed by Udham Kaur.

HELD:

The Supreme Court observed that Section 52 of the Act does not declare a
pendente lite transfer by a party to the suit as void or illegal, but only makes the
pendente lite purchaser bound by the decision of the pending litigation. Thus, if
during the pendency of any suit in a court of competent jurisdiction which is not
collusive, in which any right of immovable property is directly and specifically in
question, such immovable property cannot be transferred by any party to the suit so
as to affect the rights of any other party to the suit under any decree that may be
made in such a suit.

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Assignment No: 2

Question 2:
Write short note on Doctrine of Part Performance (with one leading judgment)

Answer:

Doctrine of Part Performance is an equitable doctrine and it is incorporated to

prevent fraud and from taking illegal advantage on account of non-registration of the
document. This Doctrine is based on the maxim, Equity look at as it is done which
ought to have been done.

Basically the doctrine says that the transferor or any person claiming under
him shall be debarred from enforcing against the transferee and the 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 term of the
contract.

The doctrine of part performance is enshrined in the provisions of The

Transfer of Property Act, 1882.

Section 53-A of the Act, deals with definition of the doctrine and it says:

When 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, in part performance of the contract, taken possession of the property
or any part thereof, or the transferee, being already in possession, continues in
possession in part performance of the contract and has done some act in
furtherance of the contract, and the transferee has performed or is willing to perform
his part of the contract, then, notwithstanding that where there is an instrument of
transfer, that the transfer has not been completed in the manner prescribed therefore
by the law 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
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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.
The proviso is an exception of sorts stating that the interests and rights of a
subsequent transferee for consideration will be protected as long as he had no
notice of the contract leading to the part performance due or the part performance
thereof.

In India, the doctrine is used only as a shield and not to enforce rights as laid
down by the Supreme Court in Delhi Motors case. But it must be noted that the
aggrieved party can either be the plaintiff or the defendant in a suit as the case
maybe.

Illustration:

A contract to transfer his immovable property to B by way of sale and put B in

possession of the property before a regular Sale-Deed is executed. The contract is
said to be partly performed and if later on A refuses to execute regular document of
sale and files a suit for eviction against B treating B as trespasser. Then B can resist
A’s claim on the ground that the contract of transfer in his favour has partly been
performed and that A should not be allowed to go back upon his own word.

Ingredients of Section 53-A

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.

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a) Written contract:

The contract must be written. Section 53-A is not applicable if the contract for
transfer is oral. In V.R. Sudhakara Rao v. T.V. Kameswari, it was held that 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 (Hamida v. Humer and Ors.

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 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
(A.M.A Sultan (deceased by LRs) and Ors. v. Seydu Zohra Beevi.

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 (Sardar Govindrao Mahadik and Anr.
vs. Devi Sahai and Ors Govind

Scope of Doctrine of Part Performance

The Doctrine of Part Performance is applicable to only written and valid

contract. It is not applicable to oral or void agreement. The contract must be in
writing and signed by the transferor. The transferee has taken possession of the
property as a part performance of a contract and transferee must be ready and
willing to perform his part of promise. This section is applicable not only to the
contract of sale but it is applicable to all such contracts of transfer for consideration.
It has been held in (Jacobs Private Limited vs. Thomas Jacob) that the doctrine is
intended to be used as a shield, not a sword.

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Amendments to Section 53-A

After 2001 amendment to Section 53A, the application of the section has seen
dilution – it no longer serves as a ‘substitute’ for registration. It should still hold good
for defects other than registration. But, registration of sale of immovable property is
compulsory and Section 53A has been amended to incorporate the same.

This Amending Act (48 of 2001) has made following changes in section 53-A. The
provisions of this Amending Act (Act of 48 of 2001) came into force with effect from
24-September-2001. This Amendment Act is not retrospective.

Section Amendment
Section 17 Sub Section 1 A of Registration Act inserted:
The documents containing contract to transfer for consideration,
any immovable property for the purpose of Section 53-A of
Transfer of Property Act, 1882 (4 of 1882) shall be registered if
they have been executed on or after the commencement of the
Registration and other Related Laws (Amendment) Act, 2001 and
if such documents are not registered on or after such
commencement then, they shall have no effect for the purposes of
the said section 53-A
Section 49 Section 49 of Registration Act, in the proviso; words, figures and
letters as evidence of part performance of a contract for the
purposes of Section 53-A of T.P. Act, 1882 (4 OF 1882), shall be
Omitted.
Section 53-A In Section 53-A, para no. 4 of T.P. Act, the words the contract,
para 4 though required to be registered, has not been registered, or
Omitted.

Legal Effect of the Amending Act (48 of 2001) in Section 53-A

In para fourth of Section 53-A of T.P. Act, the words the contract, though
required to be registered, has not been registered has now been omitted. This may

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mean to suggest that non registration of any contract to transfer for consideration is
not any relevant factor (i.e. not necessary) for the application of part performance
under this section; and, the defense of part performance is available also on the
basis of an unregistered document.

But this is not the case. The same Amending Act (48 of 2001) has
simultaneously amended section 17 and Section 49 of Registration Act. Therefore,
the amendment in section 53-A should be read with amendments in section 17 and
section 49 of Registration Act.

The amendments of section 17 and section 49 of Registration Act has now

incorporated the law which fulfills the real purpose of amending Section 53-A of the
T.P. Act. The object or the real purpose of these amendments (Amending Act 48 of
2001) is that there should not be any perpetual possession of an immovable evading
the law of registration. Accordingly, section 53-A of the T.P. Act now insists upon
proof of some acts having being done in furtherance of contract. There must be real
nexus between contract and the acts done in pursuance or furtherance thereof

Conclusion

Thus, the doctrine of part performance is an equitable doctrine. It is incorporated to

prevent fraud from taking advantage on account of non-registration of the document.
It is based on the doctrine. Equity looks at the intention rather than form.

Case Law

Srimant Shamrao Suryavanshi and Anr. V. Prahlad Bhairoba Suryavanshi,

(2002) 3 SCC 676

FACTS:

In the present case, the respondents executed an agreement of sale of an

agricultural land in favour of the appellant. The appellants in pursuance of the
agreement got the possession of the property. After the execution of the agreement,
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the appellant came to know that the respondent is negotiating for sale with another
respondent for which the appellant filed a suit. The appellant filed for injunction and
an injunction order was passed in favour of the appellant, yet the respondent sold
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.

In this case, all the requirements of Part Performance were complied with and
the transferee was able to prove that he was willing to perform his part of the
contract which fulfils the essential of performing some act in furtherance of a
contract, either in taken possession or in continued possession of the property.
The court in this case allowed the appeal as it was not disputed that the appellants
were willing to perform their part of the contract. The court in this case has rightly
applied the doctrine. Here the appellant was able to prove the willingness to perform
his part of the contract which is an important essential. Since, along with this
requirement all other requirements were also proved. Hence, it was the right of the
appellant to have the defence of the doctrine which the court provided.

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