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COMPARISON OF 53 – A WITH ENGLISH

DOCTRINE OF PART PERFORMANCE

Under English law, the equity of part – performance was developed by the Chancery
Courts against the strict provisions of the Statute of Frauds, 1677. Sec – 4 of this Act
provided that all agreements in respect of transfer of lands must be in writing. The
transfer of immovable property on the basis of oral agreement was illegal and the
transferee couldn’t get title in the land. Strict application of this law created great
hardships and a

SCOPE OF SECTION – 53-A

The following postulates are sine qua non for basing a claim on Section 53 A of the
Transfer of Property Act:

a) There must be a contract to transfer for consideration any immoveable property.

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

behalf.

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

d) The transferee must in part performance of the contract take possession of the
property, or of any part thereof.

e) The transferee must have done some act in furtherance of the contract.

f) The transferee must have performed or be willing to perform his part of the
contract.1

1
Nathulal supra note 3; Shrimat Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi, AIR 2002 SC 960;
Rambhao Namdeo Gajre v. Narayan Bapuji Dhotra, (2004) 8 SCC 614; Ram Kumar Agarwal v. Thawar Das,
(1999) 7 SCC 303; Jacobs Private Limited v. Thomas Jacob, AIR 1995 Ker 249. See also Damodaran v.
Shekharan, AIR 1993 Ker 242, M. Mariappa v. A.K. Sathyanarayan Shetty, AIR 1984 Kant 58.
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So far as applicability of Section 53A 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 the other conditions of Section 53A. It doesn’t confer any title or
interest to the transferee in respect of the property in possession. Except the right to
continue his possession, no other title or interest is created is created in favour of the
transferee.

LIMITATIONS OF SECTION – 53 – A
AVAILABLE ONLY AS A DEFENCE

The Privy Council in Probodh Kumar Das v. Dantmara Tea Co.2has held that the right
conferred by Section 53A is a right available to the defendant to protect his possession.
The Section is so framed so as to impose statutory bar on the transfer; it confers no active
title to the transferee. The above law laid down has been followed with approval by the
Supreme Court in the case of Technicians Studio Pvt. Ltd. v. Leela Ghosh.3

It has been held that Section 53A is only a partial importation in the statute law of India
of the English doctrine of part performance. Thus, a person who is lead into possession on
the strength of a void lease does not acquire any interest in the property, but gets under
Section 53A only a right to defend his possession. It can be used only as a defence.4
Following Probodh Kumar, the Supreme Court again in Delhi Motor Company v.
U.A.Basrurkar5 has held that Section 53A is only available as defence to the lessee, and
not as confirming a right as the basis of which the lessee can claim rights against the
lessor.

2
AIR 1940 PC 1.
3
AIR 1977 SC 324.
4
Ram Gopal Reddy v. Additional Custodian, Evacuee Property, AIR 1966 SC 1438.
5
AIR 1968 SC 794.
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This Section does not confer title on the defendant in possession 6; and he cannot maintain
a suit on title.7 The Supreme Court has approved this principle. Thus it can be concluded
that this section does not create a title in the defendant but merely acts as a bar to the
plaintiff in asserting his title. It is limited to the cases where the transferee has taken
possession, and against whom the transferor is debarred from enforcing any right, other
than that mentioned in the contract.

But the words of the Section do not warrant a conclusion that the plaintiff as such is
necessarily debarred from the benefit of this Section. 8 The true position as explained by
Justice Subba Rao, in a case decided by Andhra Pradesh High Court is:

“whether the transferee occupies the position of a plaintiff or a defendant, he can

resist the transferor’s claim against the property. Conversely, whether the transferor
is the plaintiff or the defendant, he cannot enforce his rights in respect of the property
against the transferee. The utility of the Section or the rights conferred there under
should not be made to depend upon the manoeuvring for positions in the court of law,
otherwise a powerful transferor can always defeat the statutory provisions of the
Section by dispossessing the transferee by force and compelling him to go to the court
as plaintiff. Doubtless, the right conveyed under the Section can be relied upon only as
a shield and not as a sword but the protection is available to the transferee both as a
plaintiff and as a defendant so long as he uses it as a shield.” 9
Thus, the correct interpretation of this section is that this section gives to the transferee
only the right to defend his possession; this defence of possession may be in the form
of plaintiff or defendant.

TRANSFERS AND AGREEMENTS COVERED BY THIS SECTION

This Section applies to leases and agreements to lease. 10 Where an agreement to lease
is evidenced by correspondence, the lessee is put in possession, and there has been
acceptance of rent by the lessor for several years, the Supreme Court held that section
was applicable, and the lessee could defend the suit for ejection. 11 It also applies to
usufructuary mortgages and mortgages with possession.12

6
Kuchwar Lime Stone Co. v. Secretary of State, AIR 1936 Pat 372.
7
S.N.Banerjee v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128.
8
Radhanath Swain v. Madhusudan, AIR 1956 Ori 58.
9
Achayya v. Venkata Subba Rao, AIR 1957 AP 854
10
Maneklal Mansukhbhai, supra note 3.
11
Ibid.
12
Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81; Rami Reddi v. Venkat Reddi, AIR 1963 AP 489.
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It however does not apply to a family agreement which does not involve a transfer of
property13, or to a partition which is not transfer at all. 14 It also doesn’t apply to license
or to the transfer of moveable property.

RIGHT EXPRESSELY PROVIDED BY THE CONTRACT

The transferor may enforce a right which is expressly provided by the contract. So, if
the contract were an agreement of lease not provable for the want of registration, the
lessee could resist a demand for rent. Of he did so, he will be disentitled to the benefit
of the Section as not being willing to perform his part of the contract. so also where a
lessee has already put in possession of certain premises in part performance of an
unregistered lease, the lessor can enforce the term of the lease entitling him to re-enter,
if there default in payment of six months’ rent.15
Similarly, if the unregistered lease was only for a term, there would be no right to
continue in possession after the expiry of the term. 16

PROVISO: TRANSFEREE FOR CONSIDERATION WITHOUT

NOTICE

The proviso to this Section protects the rights of a subsequent transferee for value
without notice of previous transferee’s rights of part-performance. Therefore, this
Section does not affect the rights of transferee for consideration who has no notice of
the contract of sale or of part-performance.
The purpose of the proviso is to defeat the claim which would otherwise, have
succeeded under the main part of this Section. 17 The question of proviso does not arise
until and unless the claimant has substantiated his claim under the main part of this
Section.18 The proviso to the Section saves the right of a transferee for consideration
who has no notice of the contract or its part-performance. The burden for proving that
he is a transferee for consideration without notice is on the transferee. 19 This was so
held prior to the enactment of Section 53A.

WHEN IS DOCTRINE OF PART-PERFORMNACE NOT AVAILABLE

13
Jileba v. Marmersa, AIR 1950 All 700.
14
Rashakretayya v. Sarasamma, AIR 1951 Mad 213.
15
Muralidhar v. Tara Dye, AIR 1953 Cal 349.
16
Radha Charan Das v. Pranbati Dassi, (1959) 63 Cal WN 535.
17
SOLI J SORABJEE, DARASHAW J VAKIL’S COMMENTARIES ON THE TRANSFER OF PROPERTY
ACT 595 (2nd edn Wadhwa Nagpur 2004).
18
S Veerabadra Naicker v. S Sambanda Naicker, AIR 2003 Mad 19; Yasodammal v. Janaki Ammal, AIR 1968
Mad 294
19
Prova Rani v. Lalit Mohini, AIR 1960 Cal 541
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This doctrine was not available against other co-owners, i.e., the two brothers who
were not the signatories to the agreement or the consenting party or the recitals show
that the agreement was entered into with the consent of the adult members; therefore,
the protection of doctrine of part performance was not available to defendant no.3
against the plaintiffs.
Therefore, even if the agreement was valid to the extent of the share of the widow, as
held by the lower appellate Court, the remedy for the appellant was to institute a suit
for decree for specific performance to the extent of the share of the widow and also a
suit for partition as it was a Hindu undivided family property.

CONCLUSION
The doctrine of part performance is an equitable doctrine designed to relieve the rigor of
the law and provide a remedy when a transfer or an agreement for transfer falls short of
the requirements laid down by the law. In England the doctrine was developed by the
Equity Courts. In a modified form it has been recognized statutorily in India being
embodied in Section 53A.

Section 53A of the Transfer of Property Act applies to a person who contracts to transfer
immovable property in writing. If the proposed transferee in agreement has taken
possession of the property or he continues in possession thereof being already 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, the transferor shall be debarred from enforcing any right in respect of the
property.

Also, Section 53A does not confer any title or interest to the transferee in respect of the
property in his possession. Furthermore, it does not give to the transferee any right of
action. It provides merely a right of defence. This is the essence of the principle
incorporated in Section 53A of the Transfer of Property Act.

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BIBLIOGRAPHY
BOOKS

1. Sarthi Vera P., G.C.V. Subba Rao’s Law of Transfer of Property (Easements,
Trust and Wills), 6th edn, Alt Publications, Hyderabad, 2005

2. Singh Avtar, The Transfer of Property Act, Universal Law Publishing Co. Pvt.
Ltd., Delhi, 2005

3. Sinha R.K., The Transfer of Property Act, 12 th edn, Central Law Agency,
Allahabad, 2011

CASE LAWS

1. Achayya v. Venkata Subba Rao, AIR 1957 AP 854;

2. Probodh Kumar Das v. Dantmara Tea Co, AIR 1940 PC 1.

3. Delhi Motor Company v. U.A.Basrurkar, AIR 1968 SC 794.

4. Technicians Studio Pvt. Ltd. v. Leela Ghosh, AIR 1977 SC 324.

5. AMA Sultan and Ors. v. Seydu Zohra Beevi, AIR 1990 Ker 186.

6. Amrao v. Baburao, (1950) ILR Nag 25

7. Ariff v. Jadunath, AIR 1931 PC 79

8. Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81;

9. Balram Jairam v. Kewalram, AIR 1940 Nag 396

10. Bhabhi Dutt v. Ramlalbyamal, AIR 1934 Rang. 303.

11. Bhagwandas v. Surajmal, AIR 1961 MP 237.

12. Chaliagulla Ramchandrayya v. Boppana Satyanarayana, AIR 1964 SC 877

13. Chaman Lal v. Surinder Kumari, AIR 1983 P&H 323.

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14. Chetak Construction Ltd. v. Om Prakash, AIR 2003 MP 145.

15. Damodaran v. Shekharan AIR 1993 Ker 242,

16. Delhi Motor Co. v. Basurkar, AIR 1968 SC 794.

17. Gajdhar v. Bachan, AIR 1943 All 768.

18. Hamida v. Smt Humer and ors., AIR 1992 All 346.

19. Hazilal v. Jugal Kishore, AIR 1999 MP 104.

20. Hemraj v. Rustomji, AIR 1953 SC 503.

21. Jacobs Private Limited v. Thomas Jacob, AIR 1995 Ker 249

22. Jileba v. Marmersa, AIR 1950 All 700.

23. Kripa Ram v. Bishen Das, AIR 1944 Lah 179.

24. Kuchwar Lime Stone Co. v. Secretary of State, AIR 1936 Pat 372.

25. M. Mariappa v. A.K. Sathyanarayan Shetty, AIR 1984 Kant 58.

26. Madan Mohan v. Srinivas Prasad, AIR 1943 Pat 343.

27. Mahalakshmi v. Venkatareddi, AIR 1944 Mad 556.

28. Mahomed Musa v. Aghore Kumar Ganguli, (1914) ILR 42 Cal 801

29. Maneklal Manuskhbahi v. Honnusji Jamshedji, AIR 1950 SC 1

30. Manjural Hoque v. Mewajan Bibi, AIR 1956 Cal 350.

31. Maruti v. Krishna, AIR 1967 Bom 34.

32. Mian Pir Bux v. Sardar Mahomed Tahar, AIR 1934 PC 235

33. Muralidhar v. Tara Dye, AIR 1953 Cal 349.

34. N.P.Tripathi v. Damayanti Devi & Anr, AIR 1988 Pat. 123

35. Nathu Lal v. Phoolchand, [1970] 2 SCR 854.

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Performance
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36. Patel Natwarlal Rupji v. Kondh Group Kheti Vishayak, AIR 1996 SC 1088.

37. Prova Rani v. Lalit Mohini, AIR 1960 Cal 541

38. Radha Charan Das v. Pranbati Dassi, (1959) 63 Cal WN 535.

39. Radhanath Swain v. Madhusudan, AIR 1956 Ori 58.

40. Ram Gopal Reddy v. Additional Custodian, Evacuee Property, AIR 1966 SC
1438.

41. Ram Kumar Agarwal v. Thawar Das (1999) 7 SCC 303

42. Rambhao Namdeo Gajre v. Narayan Bapuji Dhotra, (2004) 8 SCC 614

43. Rami Reddi v. Venkat Reddi, AIR 1963 AP 489.

44. Ranchhoddas Chhaganlal v. Devaji Supdu, AIR 1977 SC 1517.

45. Ranchod v. Zipru, AIR 1954 Bom 153.

46. Rashakretayya v. Sarasamma, AIR 1951 Mad 213.

47. S Veerabadra Naicker v. S Sambanda Naicker, AIR 2003 Mad 19

48. S.N.Banerjee v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128.

49. Sadashiv Chander Bhamgare v. Eknath Pandharinath Nangude, AIR 2004 Bom
378.

50. Sardar Govindrao Mahadik & anr. v. Devi Sahai and ors., AIR 1982 SC 989.

51. Sham Lal v. Mathi, AIR 2002 HP 66 .

52. Shrimat Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi, AIR 2002 SC

960

53. Shukla Malhotra v. Vyasa Bank Ltd., (1998) 45 DRJ 504.

54. State of Uttar Pradesh v. District Judge, AIR 1997 SC 53.

55. Sulleman v. Patel, AIR 1933 Bom. 381.

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56. Sunil Kumar Sarkar v. Aghor Kumar Basu, AIR 1989 Gau 39.

Doctrine Of Part-
Performance