What is Part Performance??
*Dr. Deepak Miglani
Section 53 A of Transfer of Property
Act, 1882 deals with part performance.
Where
any person contracts to transfer for consideration any immoveable 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 therefor by the law for the 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 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.
Benefit
of Section 53-A is not available to party who alleges to be in possession of
the property based on oral agreement of sale.[1]
This section does not transfer title to transferee in property concerned.[2]
This
section embodies what is known as the doctrine of part performance. The origin
of this doctrine can be traced back to the Statute of Fraud [1967 J, 29 Car II
c. 3, repealed by the Law Reform Enforcement of Contracts Act, 1954, 2 & 3,
Eliz II c. 34.] which provided that no suit shall be maintained on an agreement
relating to land which was not in writing signed by the party to be charged
with it.
The
section does not affect transferees for consideration without notice. The
section does not confer title and therefore registration will still be
necessary. The equitable relief should be available even after the period of
limitation for specific performance has expired and Section 30-A of Specific
Relief Act has been inserted to accomplish this.
Whereas
in English Law the equity of part performance is an active equity which
plaintiff may enforce in an independent suit, the right conferred by Section
53-A is a passive equity available only to the defendant to protect his
possession.[3] No
active title is conferred on the transferee. The action does not apply to
family arrangements and partitions. Where the transferee is not in possession,
actual or constructive, the section cannot apply.
Document
containing contract to transfer right, title or interest in immovable property
for consideration, for purposes of Section 53-A of TP Act to protect possession
of transferee over property, if not registered but exhibited, it will bear an
endorsement that it is admissible only as evidence of agreement to sell in suit
for specific performance under Specific Relief Act and shall not have any
effect for purposes of Section 53-A of TP Act. Genuineness, validity and
binding nature of document or whether it is hit by any provisions of TP Act or
Stamp Act, will have to be adjudicated at appropriate stage after parties adduce
oral and documentary evidence.[4]
Defendant
who intends to avail benefit of Section 53-A of TP Act, 1882, inter alia, must
plead that he has taken possession of property in part-performance of the
contract.[5]
Once
suit for specific performance filed by such prospective buyer is dismissed, his
possession becomes unauthorized and illegal. Protection under Section 53-A is
thereafter no longer available. Seller entitled to claim back possession from
prospective buyer on ground of ownership.[6]
Though
mere expiry of the period of limitation for a suit for specific performance is
not a bar for a person in possession of immovable property in part-performance
of a contract for transfer thereof for consideration, to assert the shield of
Section 53-A TPA, it is nevertheless imperative that to avail the benefit of such
protection, all the essential prerequisites therefor have been complied with.[7]
Doctrine
of part performance is applicable in case of sale agreement between mortgagor
and mortgagee in respect of mortgaged property.[8]
The
transferee must, in part-performance of the contract, have (1) taken possession
of the property or any part thereof, in the sense of juridical possession or
control of the land and not as mere permission to be on the land as licensee;
and (2) the transferee must have performed or be willing to perform his part of
the agreement. It is only if these two important conditions, among others, are
satisfied that the provisions of Section 53-A can be said to be attracted on
the facts of a given case.[9]
End Notes:-
* Dr. Deepak Miglani, Email id.:-
legalbuddy@gmail.com
[1]
V.R. Sudhakara Rao v. T.V. Kameswari, (2007) 6 SCC 650.
[2] Raheja Universal Ltd. v. NRC
Ltd., (2012) 4 SCC 148.
[3] Dantamara Tea Co. v. Probodh, 41
CWN 54 (PC).
[4] Ameer Minhaj v. Dierdre Elizabeth
(Wright) Issar, (2018) 7 SCC 639
[5] Shyam Narayan Prasad v. Krishna
Prasad, (2018) 7 SCC 646.
[6]
Revanasiddayya v. Gangamma, (2018) 1 SCC 610.
[7]
Vasanthi v. Venugopal, (2017) 4 SCC 723.
[8] Ramesh Chand v. Nand Lal, (2019)
5 SCC 807.
[9] Seshasayee Steels (P) Ltd. v.
CIT, (2020) 14 SCC 774.
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