S.

53A- PART PERFORMANCE

When person contracts to transfer property for consideration, and immovable property is signed to him or on
his behalf, from which
a. the terms necessary to constitute the transfer can be ascertained with a reasonable certainty,
b. and transferee in part performance has taken possession of the property or any part thereof, OR
transferee being already in possession continues in possession or in part performance of the contract
and had done some act in furtherance of the contract
c. transferee has performed or is willing to perform his part of the contract
Notwithstanding that there was an instrument of transfer, that the transfer has not been completed in manner
prescribed by law for time being in force- the transferor shall be debarred from enforcing against the
transferee and persons claiming under him any right in respect of the property for which the transferee
continues in possession, other than the right expressly provided by the terms of the contract
(Nothing here shall affect rights of a transferee for consideration who has no notice of the contract or of the
part performance thereof.)

 Illustration- A attempts to transfer to B. Before fulfilling the condition, B is given possession. Sells
the same property to C. C here will try to protect B. The doctrine of part performance states that if B
has fulfilled most of the obligations and is willing to perform the rest of the obligations, the
transferees’ rights should be protected.
 Transferor cannot enforce any of his right except those reserved by him during the transfer
 Conditions for part performance
a. Property possession is given
b. Part of the obligations have been done
c. Transferee is willing to do the rest of the obligations.
 History of the principle
a. Prior to 1929- It was merely an equitable English doctrine which was adopted by Indian courts
selectively in a few cases (Decisions were also very mixed)
Mohd. Musa v. AK Ganguly- There was an unregistered compromise deed between the parties whereby
they took parts in the property. After some years, disputes arose and one of the parties wanted to resign and
take possession. Can this be done. Court- even though it was an unregistered deed, the defendant could
defend his possession through this deed
Arif v. Jagunnath- The case here pertained to a permanent lease which was done through an oral contract
(according to TPA this could be given according to a written and signed instrument). Later, lessor wanted to
take away the lease- for this he considered it as a month-to-month lease. This was challenged

 Court- It should apply the doctrine of part performance.

 Privy Council- M Musa was an obiter, the case here was a violation of TOPA and the registration
act, therefore the party cannot defend.
Mia Pir Baksh v. Sardar M Tahir- There was an oral agreement to sell immovable property. Possession
was given and later attempt was made to dispossess the property. The doctrine of PP wasn’t applied in this
case
b. Post 1929- In 1929 S.53A was inserted, as a part of the amendment act. The principle was
therefore given statutory recognition. Even though the principle from English law, there were
certain differences
1. Eng- Possessions received under oral contracts are also enforceable.
 S.53A- Contract must be in writing
2. Eng- PP is a ‘defence and a weapon’
S.53A- PP is only a shield and not a sword (it is passive).
 In 2001- amendment made through a regulation and other related laws- this amended S.53A. B y this
amendment, certain words were omitted. (Find out the words omitted from someone else).
This has to be read with S.17(1)(a) of the registration act and S.49 of the registration. S.17(1)(a)
deals with compulsory registration.
 If there is a document which is executed in 2001, and if it remains unregistered this cant be relied on
for S.53A. The intent of the legislature was that prior to 2001, such a document could be adduced as
evidence. However now it cannot be done so.
(S.17(1)(a)- unregistered document has no effect; S.49- Such a document cannot be adduced as
evidence)
 General conditions under S.53A
a. Applies only to immovable property
b. With a valid contract
c. For consideration
d. Transaction is not complete as per the provisions of the law (but it is otherwise valid)
e. Transferee should fer possession in furtherance of the contract
f. Transferee is willing to perform their part.
 In order to show the intent of the parties, it is only required to show the contractual document which
shows such intent (referring to para 1- terms necessary to constituted the transfer can be ascertained
with reasonable certainty)
Moolchand v. Rohan-
 Alleged contract to immovable property in letters written from seller to buyer- he admitted to
intention of sale- buyer tried to defend his possession under S.53A by establishing these letters as a
contract
 Q- Can it be done?
 Court- This letter cannot be considered as a contract as they clearly did not show the intention.
Equity lies in intention and not form
Murlidhar v. Saudhagar-
 There was a mortgage between a mortgagor and mortgagee and the mortgagee- mortgager agreed to
get the name mutated in the registry held at the municipality- contract was unregistered
 Mortgager had made an application for this mutation- if mortgagor was to be dispossessed- Q can
this be done? (Could a defence be taken under S.53A)
 Court- Act of making application was considered as an act in furtherance. (PP applied)

Kukaji v. Basantilal- There was a usufructuary mortgage- mortgagee gets possession- mortgager contracted
with mortgagee to sell the same property- contract remained unregistered.

 Subsequently, the same property was sold to another buyer A- Now A contracts to sell the
property to C, if all the requirements are fulfilled by law- and now C takes action against B. Nothing
could be proved on the part of the mortgagee.
 Held- S.53A does not confer any title- transferee only has the right not to get dispossessed.

Another situation under S.53A- transferee is already in possession- this alone is not sufficient- there should
be some act done in furtherance of contract.
Sardar Govidrao v. Dev Sahai- There was an ‘anomalous mortgage’ (it is a simple mortgage + usufructuary
mortgage) whereby possession was received. This mortgage was to receive a loan of 10,000 Rs- Mortgager
later agreed to sell the property, executed via an unregistered sale deed. Mortgagee in pursuance of ancillary
expenses to this paid Rs 1000 Rs- this was to register the document.
 Subsequently, the property was sold by mortgager to C by a duly registered document. C and
mortgager-initiated action against mortgagee who had possession.
 Trial Court- Paying money cannot be considered as part performance
 HC- It can be allowed
 SC- Things which are ancillary to contract and in furtherance of the contract are different-
payment of Rs 1000 is an expense which is ancillary to the contract- and therefore does not come
within the scope of S.53A. It was also held here that S.53A does not confer any title- only
contract fulfilment
 (Only protection accorded is that he can protect possession which has already been delivered to him
in furtherance of this partly performed contract- he cannot be called a trespasser- however at the
same time no rights would be conferred in his favour- it confers only an interest which is
transferrable and attachable)
S.53A as ‘passive equity’
a. For a long time, it was considered that one cannot take action based on an incomplete instrument
of transfer under S.53A- it is only a passive principle.
b. This led to a view that almost all the time the transferee of a property based on part performance
is always the defendant.
c. However- now the possession is tht the right of part performance canot be used as an independent
remedy either as a plaintiff or as a defendant- but can be used by defendant to protect his
possession against any challenge to it by the transferor contrary to the terms of the contract
d. It confers no title on the transferee, and therefore neither a suit on title can be maintained by him,
not can a suit against a third party to the contract for enforcement of a bar as against the
transferor would be maintainable- this implies that part performance is a shield and not a sword.
e. However, the possessor of the property has a right to resist dispossession and can file a suit
for specific performance of a contract or for protection of possession, or for an injunction
against the transferor restraining him from interfering his possession.
Prabodh K Ds v. Dantmara Tea Co.- There was ne G and Co- They contracted to sell a tea estate to a
person named SN Roy. Subsequently, the rights were acquired from him by a person named PK Das. PK
Das paid one instalment in pursuance to this to G and Co. This was done via an unregistered sale deed.
Subsequently, after getting possession, transferor subsequently gave the title to Dant Co (They got through
proper deed without possession).

 Dantmara obtained license too (Export quota rights). PK Das then initiated action and sought
injunction against Dantmara from selling tea (Dantmara knew about this arrangement)
 PK Approched the court and sought injunction.
 Q- Could Dantmara be injuncted from selling tea.
 Ans- P was using 53A to seek an action. This was not allowed. It can only be used to defend. The
amendment of the law effected by the enactment of Section 53A conferred no right of action on a
transferee in possession under an unregistered contract of sale. The right conferred by 53A is a right
available to the defendant only to protect his possession. It confers no active title on the transferee.
 It was suggested that D obtaining export quota rights was enforcing a right in respect of the property
against P as persons claiming under the transferors and could be stopped on P’s instance from doing
 so. However, the Court believed that there had been no conferment within the meaning of this
section of any right against the appellants

Parvathamma v. Srini-
 There was a landlord and tenant relationship. After 3 years- landlord agreed to sell property to tenant.
12 years thereafter the landlord sold property to person C. Person C was a bonafide transferee who
had no knowledge of previous transfer. Person C wanted to evict B. B took advantage of S.53A-
Action here was not initiated by person B. Nature of suit- filed against the transferor.
 Held- S.53A does not provide remedy to people who sleep over the rights- court didn’t grant

GPA Sales issue (C- Sooraj Lamps v. State of Haryana)

a. In Delhi and other NCR regions, there is a practice of selling property through a General Power
of Attorney Sales. The question here was whether property could be sold like this
b. Court- Court here enunciated the ill effects of these modes of transfer. They said that the people
resorted to these modes to avoid certain prohibitions (like taxes and stamp duty). Further,
sometimes the seller does not have a perfect title, and they therefore resort to such modes.
c. In the matter of Asha Jain v. Kerala Bank- the Delhi HC had impliedly recognized these kinds
of sales. Delhi HC said that this was bad law, and that recognition of these would have disastrous
consequences. Measures were taken to avoid these, but there was no real reduction. In the lonf
run this resulted in generation of black money and increasing of land mafias.
d. Court therefore said that at max these are agreements to sell, and not valid documents. The court
also said that the parties should be given an opportunity to regularise these transactions.
e. Observation on S.53A- Citing the decision of Rambho Ramdev v. Narayan, the court said that
even if the person got possession, the remedy is only against the transferor. Therefore, according
to this judgment, the only way for a transfer is through a deed of conveyance which is a
registered document.
f. GPA sales are not invalid transactions. However, they don’t transfer ownership, and this
therefore cannot be passed on further. Immovable property can be legally transferred and
conveyed by a registered deed of conveyance. The court in sooraj lamp also recognized will as an
invalid document for inter vivos transactions.
Ramesh Chand v. Anil Bangwani- A seller wanted to sell property. Through an agreement of sale, the
buyer got possession but the sale deed was never executed. Some trespassers later on the behest of the seller
intruded upon the property where the buyer had made some constructions.
Court- Considered S.53A to be applicable and ruled in favour of the buyer (Even though sale deed is not
executed the agreement to sell is valid and registered. Therefore, the protection of possession is also there.