RULE OF PART PERFORMANCE

SEC 53 A
INTRODUCTION
The doctrine of part performance is based on the principle of equity and was
developed in England and later on added to the Transfer of Property Act, 1882, in
the year 1929 via amendment.
Section 53A of the Act embodies the doctrine of part performance. It lays down
that if a person gets into an agreement with another and lets the other person act
on behalf of the contract; then such a person creates an ownership right for
himself, even though the formalities might not have completed.
In short, even though the contract might not have been registered or
accomplished in the prescribed manner yet, the transferor shall not go against the
transferee. The only mandatory factor is that the agreement or the contract should
not be unsigned or unstamped. Nothing in this section affects the rights of a
transferee for consideration even if he had no notice of contract of part
performance.
 CONTD.
The law mandates that the transfer of any immovable property should be duly registered but the
practical hardships foreseen in this, brought into being the doctrine of part performance.
Therefore, if one party has already performed his part with the confidence thinking the other shall
also honour the agreement, then even though the formalities are incomplete, the doctrine of part
performance will be applicable. If the transferee has taken possession or part possession of the
property, he shall not be evicted. This section counters to protect the rights of the transferee
against any fraud or challenge, ascertain that „Equity looks to the intent rather than to the form‟.
The Doctrine of Part Performance is based on the following three maxims of equity-

1. He who seeks equity must do equity.

2. Equity treats that as done which ought to have been done.

3. Equity looks to the intent rather than the form.

ESSENTIALS OF THE DOCTRINE OF PART
PERFORMANCE
1. A written contract is mandatory for transfer of an immovable property, which should
be signed by or on behalf of the transferor. The doctrine cannot be applied if the
agreement is void or there is no agreement.
● There must be consideration.
● The contract should give out the terms of the transfer with reasonable certainty.
● The transferee must have taken possession as a result of this contract or continued in
possession, if he was already in possession of the property.
● The transferee must have done some act in furtherance of the contract. Acts done prior
to the agreement or independent of it cannot be deemed to be part performance of the
contract.
● The transferee should have performed his part of the deal or be willing to perform it.
 CONTD.
2.. The person to whom it is transferred-
a. If the property is in custody or some part of it already, or if the property is in possession, the
same will occur.

b. In the exercise section of the deal, the act of taking possession shall be taken.

c. And, to facilitate or invoking the section for the contract, the transferee who was still in
charge of the contract has to act something in its advancement.

3. The person to whom the property is transferred is willing to perform the contract or part of it.
4. The person who is transferring the property or any person on behalf of him cannot claim any
right on the property on which the person to whom the property is transferred is residing or has
possession unless the rights were explicitly mentioned in the terms of the contract.
CONTD.
5. The Doctrine of part performance cannot be invoked if the manner of the
contract has not been completed as prescribed by the statute.
This section will not affect the rights of a transferee who did not know the
doctrine of part performance of the contract.

Example: If A signs an agreement of sale with B and gives him the possession of
the property and B is residing the said property, the later A sells the same
property to C through sale deed, and C has no knowledge of the previous
agreement then this section will not affect his rights.
 SCOPE OF DOCTRINE OF PART PERFORMANCE
1. In plain reading, a transferor shall take ownership part in the execution of the contract for
the property in question, aside from meeting the other provisions, using the shield provided
for in this clause, and having done so to promote the contract.

2. Where the relevant contract does not comply with the provisions of a legal contract, the
court cannot accept the plea referred to herein. For a transferor to use insurance in this
clause, there must then be a legal contract.

3. The purpose of this provision is restricted only to the placing by the transferor, in connection
with a property already owned by the transferor, of a bar on the protection of the rights.

4. The section grants no right on unregistered transfer to the transferor to assume custody of the
transferor or any other right, it is only applicable to him as a protection.
CONTD.
5. For this clause to apply, the contract must be linked effectively to actions performed in
support of the contract or to actions that may be unequivocally alluded to in that
contract.

6. Where there is no transfer arrangement or land, the applicability issue of this

provision does not arise.

7. The transferor must be the owner to attract the disposition of this section, a sales
agreement should be concluded and the transferor’s possession should be by that
agreement and the transferor has to do something else to support the agreement, and he
has to be willing and willing to fulfill his part of the agreement.
THE OBJECTIVE OF DOCTRINE OF PART
PERFORMANCE
1. The statute obliges both the transferor and the transferee to carry out a transfer. The transferee
is generally required to pay the consideration under the terms of the contract and to perform the
transfer act in a manner specified by Statute, the transferor is responsible for the transferee.

2. Section 53A centres on maintaining the transferee’s right to maintain ownership of the property
if the transferee does not have liability because of the fault by the transferor in completing the
convey instrument in the way stipulated by statute.

3. This section deals to prohibit the transferor or his successor from using a record that is not
being registered provided the transferor performs the contractual portion and has taken care of
any immovable property in connection with the conclusion of the contract.
CONTD.
4. To protect his property, the transferor has the right as a defense himself.

5. This section affects partial equality and partial incorporation in the Indian legal framework of
the doctrine of partial results.

6. In the absence of a registered agreement, this provision provides for the procedural defense
such that a person can retain ownership of his portion of the deal.

7. The primary purpose of this clause is to prohibit the recipient or parties claiming the title in
violation of the interests of the other contracting party who has acted as a result of the agreement
concluded.
CONTD.
8. This provision provides the accused with the ability to shield his possession from the transferor
or others claiming his right under him, such as his heirs, assigned persons and legal agents.

9. This clause stipulates the transferor with a contractual bar that does not confer title to the
transferor over the property in question. The transferred party cannot then bring an action to
declare his rights to the land and to retrieve ownership on the grounds of the asserted title.

10. The transferee will still exercise his right as a shield, but he will not be allowed to exercise his
right as a separate claim, either as complainants or defendant, only because he has satisfied the
conditions specified in this clause, he does not assert the right under the present clause.
 CONTD.
Difference Between English Law And Indian Law Of Part Performance

The Doctrine of Part Performance was adopted by India from the English laws but with certain
modifications, because of the following differences-

1. Under English law, the remedy of Part Performance is available even if the contract is in oral
form, while in India the contract has to be in writing.

2. Under English law, the scope of this Doctrine is wider than under Indian law. This is because it
is a right of action as well as a defense under English law, while under Indian law it is only a
right of defense.

3. Under English law, any act in furtherance of the contract is sufficient to avail this remedy but
under Indian law, possession of the property or any part thereof by the transferee is the must.
CONCLUSION
An amendment has been made in Section 53-A of the Transfer of Property Act by
the Registration and other Related Laws Act (48 of 2001). By virtue of this, in
Section 53-A, para 4 of the Transfer of Property Act the words "the contract,
however, required to be registered, has not been registered, or," was omitted.
Accordingly, certain amendments were also made in Sections 17 and 49 of the
Indian Registration Act, 1908. By virtue of these amendments, the effect is that
now a contract has to be necessarily registered. Hence, it can be concluded that
this Doctrine has been evolved in view of preventing frauds, especially on
account of non-registration of documents.