NATIONAL LAW UNIVERSITY

ODISHA

7th SEMESTER PROJECT

Transfer Of Property Act

PART PERFORMANCE OF CONTRACT SECTION 53-A

SUBMITTED BY-

ISHWAR CHARAN (2016/BA.LLB/44)

SUBMITTED T0-

MS. RUJITHA T.R. (ASST PROF. OF LAW)

TABLE OF CONTEN
T

1.INTRODUCTION...........................................................................................3

2.HISTORY OF THE SECTION......................................................................4

3.SCOPE AND APPLICABILITY OF THE SECTION...............................11

4.AMENDMENT OF REGISTRATION AND SPECIFIC RELIEF ACT 15

5.UNDERSTANDING SECTION 53-A..........................................................18

6.Nature of Right: Available Only as a Defence............................................29

7.Conclusion: Part Performance Not a Sword...............................................31

8.BIBLIOGRAPHY..........................................................................................32

2
 INTRODUCTION
“The concept of part performance has been taken from English Law. This principle though is
an English doctrine, but in India it has been incorporated with some differences. Thus, the
English doctrine of Part Performance and the Indian Doctrine of Part Performance as
incorporated in the Transfer of Property Act (TPA), 1882 under Section 53A, are different in
some aspects. The concerned Section in TPA has gone through several amendments through
the course of time.”

“The doctrine of part performance aims to provide protection to the transferee of immovable
property on the condition that there must be full satisfaction of all conditions as laid down in
section 53Aof the TPA and also all conditions as required to complete sale, as per the Indian
Contract Act, 1872, to consider even unregistered sale as transfer protected from adverse
action by transferor. However, section 53A is applicable as a defence only in consonance
with other statutory provisions relating to transfer of immovable property. These provisions
too like section 53A, have been amended and this has not only affected the operation of the
section but also defined its limits.”

“Section 53A protects the interests of property buyer who has satisfied his commitments and
is willing to satisfy his commitments and then only the transferor cannot go against him and
take back possession or cancel sale. In case the buyer has made defaults, or from his conduct
it appears that he will not fulfil his promises, which are required to complete sale, then buyer
may not get protection of section 53A and the seller can cancel sale and repossess the
property . The compliance of conditions, on part of the buyer is to be considered in the light
of the terms and conditions agreed in the contract, and also the applicable provisions of the
Indian contract Act. Therefore, the seller can insist on the buyer to fulfil his promises which
he is required to fulfil, in a sequential manner, if any, applicable and provided in the
contract.”

“Part performance as a doctrine in the Indian context acts only as a shield or defence
mechanism for the transferee rather than a sword i.e. something a party to contract would sue
offensively for, like other provisions. Thus, problem lies in understanding its application.
This project deals mainly with the kind of situations where this doctrine could be applied or
where section 53A would be attracted and where it would not get attracted. The provision
provides a statutory right to the transferee against any right of the transferor to defend his

3
possession over the property, either taken possession or right in continuance of the
possession, the scope of which is discussed in this project.”

4
 HISTORY OF THE SECTION
THE ENGLISH EQUITABLE DOCTRINE OF PART PERFORMANCE

“Where a contract, which was unenforceable under the statute of Frauds (1677) as not being
in writing signed by the parties, had been partly performed and the acts of part performance
were such, as unequivocally gave rise to an inference that there must have been such a
contract as that alleged, Courts of Equity held that they had power, notwithstanding the
Statutes of Frauds to discover by parole evidence the actual terms of such contract and give
relief to the parties on that basis. This in short, is the English equitable doctrine of part
performance.”

HISTORY OF THE DOCTRINE

The Statue of Frauds was passed in England in 1677 and S.4 thereof provided inter alia that:

“No action shall be brought whereby.....to charge any person upon any agreement made in
consideration of marriage or upon any contract of sale of lands, tenements or hereditaments
or any interest in or concerning them.....unless the agreement upon which such action shall be
brought or some memorandum or note thereof shall be in writing and signed by the party to
be charged therewith or some other person thereunto by him lawfully authorised.”

“It will be noticed that a contract which failed to comply with the requirements of the Statute
of Frauds was not void but was merely one which could not be proved except by a memo in
writing.1 On this principle it was held that if the parole agreement of the nature referred to in
the Statute of Frauds was admitted by the part bound, it was out of the statute. 2 The object of
the statute was held to be merely to prevent fraud being perpetrated. But in the application of
the statute it was found in practice that it was sometimes capable of being taken advantage of
to effectuate a fraud. It enabled a person who induced anther to act upon his promise and
change his position, subsequently to turn round and repudiate his promise on the ground that
it was not reduced to writing. Courts of Equity, therefore, sought out means to relieve this
difficulty. The theory on which they proceeded was that a statute intended to guard against
fraud should not be allowed to so operate as to encourage fraud. By construction, they limited
the operation of the statute to those cases only where the relief was claimed on the contract
itself as alleged and held that it did not apply to cases where the contact was partly performed
by the parties and the acts of part performance gave rise to an inference by themselves that
1
. (1883) 52 LJ QB 737 (741,749) : 49 LT 303.
2
. (1801) 34 ER 913 (927) : 6 Ves 12.

5
there must have been some contract between them. 3 In other words, where material acts were
done in part performance of the contract it was held that it was taken out of the mischief of
the statute.4”

“It was, however, held that the doctrine of part performance was one which should not be
unduly extended5, but should be confined within limits intended to prevent the recurrence of
the very mischief which the statute was intended to suppress.6”

The following are the limitations to the doctrine of part performance:

(A) The act of part performance must be unequivocally be referable to the alleged contract.

“As observed by Lord Hardwick in Gunter v. Halsey7 “the acts done in part performance
must be such as could be done with no other view or design than to perform the agreement.”
The mere fact that the act is consistent with the alleged contract is not sufficient. An act,
which though in truth done in pursuance of a contract, admits of an explanation without
supposing a contract is not an act of part performance taking the case out of the statute.8”

“The mere continuing in possession by a lessee is not an act of part performance of a contract
to grant a fresh lease.9 But the continuing in possession by the tenant coupled with the
payment of increased rent is an act of part performance. 10 The reason is that the formoer is an
equivocal act not necessarily referable to an agreement to grant a fresh lease. Where,
however, a tenant entered into possession during negotiations for a lease, and continued in
possession after the agreement was concluded, it was held that this was a part performance of
the contract.11”

“The mere payment of money even if it be the whole of the purchase- money is not an act of
part performance. It is an act capable of various explanations.”

(B) It must be such an act of part performance as to have changed the relative position of the
parties as to the subject-matter of the contract.

3
. !1807) 33 ER 569 (569, 570): 14 Ves 386 : 9 RR 304
4
. (1784) 28 ER 1205 (1212) : 1 Bro CC 404
5
. (1761) 30 ER 126 (127) : 2 RR 41
6
. (1925) 94 LJ Ch 113 (121): 1925 Ch 96 (112)
7
. (1739) 27 ER 381 : Amb 586
8
. AIR 1925 Rang 322 (324) : 3 Rang 243
9
. (1883) 52 LJ QB 737 (744) : 31 WR (Eng) 820
10
. (1883) 52 LJ QB 737(744) : 8 App Cas 467 (480)
11
. (1918) 87 LJ KB 1101 ( 1103) : (1918) 2 KB 314 (318).

6
“The taking of possession is not the only mode of part performance recognised. Where the
plaintiff altered her own building in accordance with the wishes and suggestions of the
defendant it was held that this necessarily suggested the existence of the alleged contract to
take the house on rent, that the plaintiff had changed her position for worse and that the
doctrine applied even to the acts of the plaintiff on her own property and no possession was
taken by the defendant.12”

(C) It must not be an act preparatory to the completion of the contract.

“In Buckmaster v. Harrop13Sir William Grant, M. R. Said: “that without which there could
have been no contract cannot be said to be in part performance of the contract.” Thus, the
measurement by a party of the subject-matter of an agreement is not a part performance of the
agreement but is only a step towards performance. The going of a purchaser, to inspect the
property which is the subject matter of an agreement for sale is not part performance of the
agreement.”

DOCTRINE OF PART PERFORMANCE AS DISTINGUISHED FROM THE EQUITABLE

“It is a maxim of equity in England that “Equity looks on that as done which ought to have
been done”. This means that, equity will treat the subject-matter of a contract, as to its
consequences and incidents in the same manner as if the act contemplated in the contract has
been completely executed. Thus, a contract to transfer real property did not at law pass any
title to the property to the transferee, but equity acting on the above maxim treated the
contract as if it had been executed and regarded the transferee as if he was a transferee at law.
In other words he obtained an equitable interest in the property transferred. It was, however,
necessary for the application of this maxim, that at the time the Court was called upon to
apply the maxim, the right to specific performance of the contract subsisted. For if such right
did not exist as, for example, where it had been barred by limitation, it could not be said by
the Court that it was one “which ought to be performed by the parties”, and it was only if the
contract ought to be performed that equity will regard it as performed. The decision in Walsh
v. Lonsdale, rests upon this principle.”

12
. (19240 94 LJ Ch 113(115) : 1925 Ch 96
13
. (1802) 32ER 139 (141) : 6 RR 132
14
. (1882) 31 WR (Eng) 109 : 21 Ch D 9 (14, 15)

7
“Facts of the above mentioned case: In this case there was an agreement in writing to execute
a lease dead by A in favour of B. B thereupon sued A for an injunction that by the non-
execution of a lease deed, he was only a tenant from year to year and that A could not distrain
for rent. It was found that the right to specific performance of the contract was subsisting. It
was held that A was entitled to distrain on the basis that B was a lessee in equity.”

“It is to be noticed that the rule referred to above, presupposes that a valid contract has been
proved or established, and states that equity will treat it as executed and give relief on that
basis, where the right to specific performance of such contract is not barred.”

“The doctrine of part performance, on the other hand, applies where a contract be proved by
reason of its not being in writing as required by the Statute of Frauds. In such cases, if acts of
part performance have been performed by the parties and the acts by themselves were such
that they could have been done had there been no contract such as that alleged. Courts of
Equity held that the case was outside the Statute of Frauds and felt themselves enabled to
admit proof of the contract, on the ground that a party cannot be allowed to take advantage of
even an Act of Parliament to commit fraud on others. Having thus come to a conclusion that a
contract of transfer had been made, they held that relief could be granted to the parties on that
basis. They enforced the specific performance of the contract where the right to specific
performance was subsisting.15 Where a party had changed his position by acting in pursuance
of the contract, they prevented the other party from turning round and giving the go-by to the
contract on the ground that it was not in writing and this they did whether the right to specific
performance did or did not subsist.”

LAW IN INDIA BEFORE THE INTRODUCTION OF THIS SECTION

“Before the Transfer of Property Act was passed, the English doctrine of part performance
was applied to cases arising in this country.”

“The matter came up before the Privy Council in Mahomed Musa v. Aghore Kumar
Ganguli16in 1914. In that case, a compromise was entered into between parties by which
certain mortgage debts were to be extinguished and certain property divided between the
parties in specific shares. No conveyance was executed in pursuance of the compromise, but
the parties took position of their respective shares and enjoyed them in accordance therewith.
‘The compromise was before the Transfer of Property Act was enacted and under the law
15
. AIR 1938 Cal 97 !101,102): ILR (1938) 1 Cal 607(DB)
16
. AIR 1914 PC 27 (30) :42 Cal 801

8
then prevailing no written conveyance was necessary transfer title.’ Their Lordships applied
the doctrine of part performance as laid down in Maddison v. Alderson17and held that the
acting of the parties was such as to supply all defects. Lord Shaw in delivering the judgement
of the Board said, “Their Lordships do not think that there is anything either n the law of
India or England inconsistent with it but on the contrary that these laws follow the same
rule””

“In Venkayyamma v. Appa Rao18A promised to B in 1886 to purchase and convey to B certain
properties. The parties acted on this basis for a long time but no conveyance was executed by
A to B. B sued for possession of the properties. Their Lordships of the Privy Council held
that B was entitled to a decree and they referred to the doctrine of part performance as laid
down in Mahomed Musa’s case.”

“The conflict of opinion in the High Courts, not unnaturally, continued. In some cases the
doctrine of part performance of a contract was applied so as to support a plea in defence to a
suit for ejectment, provided that the right to sue for specific performance of the contract still
subsisted.19 In some cases it was applied without reference to any questions as to whether the
right to claim specific performance of the contract to transfer was or was not barred by
limitation.”

“In some cases, the possession taken under a contract for sale or lease was held to be a good
defence to a suit for ejectment on the principle of Walsh v. Lonsdale. In a fourth class of
cases the doctrine of Walsh v. Lonsdale was mixed up with the doctrine of part performance
and both were invoked and applied to the same set of circumstances. In a fifth class of cases
it was held that the equitable doctrines could not be invoked so as to override the express
provisions of the Act.”

“In this state of authorities, S. 53-A was introduced by the amending Act of 1929. This
section is a partial importation into India of the English equitable doctrine of part
performance.”

“Section 53-A. Part Performance. ---- Where 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,”

17
. (1883) 52 LJ QB 737: 8 App Cas 473
18
. AIR 1916 PC 9 (13) : 43 Ind App 138
19
. AIR 1927 Rang 33 (37) : 4 Rang 368 (FB)

9
“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 [...]20 where there is an instrument of transfer, that the transfer has not
been completed in the manner prescribed therefore 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. Provided that nothing in this section shall affect the rights of a
transferee for consideration who has no notice of the contract or of the part performance
thereof.”

“The matter of the applicability of both these doctrines to agreements made before the
enactment of the new section came directly into question the next year in Ariff v. Jadunath.21
In that case A, the owner, agreed in 1913 to grant a permanent lease to B and gave him
possession. B built upon it. The performance of the agreement by the execution of a
registered instrument was refused in 1918. A gave notice to quit in 1922 and subsequently
sued B for ejectment. At the date of the suit B’s right to have the contract specifically
performed had been carried by limitation. Their Lordships after reviewing the English law
relating to part performance of a contract held that neither the doctrine of Walsh v. Lonsdale
nor the doctrine of part performance applied, so as to relieve a transaction from the operation
of the statute.””

20
. The words 'the contract, though required to be registered, has not been registered, or' have been omitted by
S.10 of the Registration and Other Related Laws Amendment Act 2001 (Act no 48 of 2001) wef 24 September
2001.
21
. AIR 1931 PC 79 (82): 58 CAL 1235. (On appeal from AIR 1929 Cal 101.)

10
DIFFERNECES BETWEEN THE ENGLISH DOCTRINE OF PART PERFORMANCE AND
SECTION 53-A OF THE TRANSFER OF PROPERTY ACT, 1882

The chief differences between the English doctrine of part performance and the present
section are as follows:

“(1) The contract to which the English doctrine is applicable may be oral. The contract to
which this section applies must be in writing signed by the transferor.”

“(2) Under this section, the transferor is only debarred from enforcing any right in respect of
the property other than a right expressly provided by the terms of the contract. The transferee
cannot sue for any declaration of his right on the basis of part performance. Under the
English law both the parties can claim as plaintiff that the contract be carried into execution,
and each can resist a suit by the other claiming rights in violation of the contract.”

“(3) Under the English law, the part performance of a contract gives rise to an equity and not
to a legal right. But under the present section the part performance gives rise to a statutory
right of defence. The right is, however, one which but for the lack of some formality, the
party would have had, under written agreement. The section does not give any right which
the informal agreement will itself not give.”

11
 SCOPE AND APPLICABILITY OF THE
SECTION
“So far applicability of s 53A of the TP Act 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
other conditions of s 53A. That protection is available as a shield, only against the transferor,
the proposed vendor would disentitle him from disturbing the possession of the proposed
transferees who are put in possession pursuant to such an agreement. However, that has
nothing to do with the ownership of the proposed transferor who remains full owner of the
lands till they are legally conveyed by a sale deed to the proposed transferees. Such a right to
protect possession against the proposed vendor cannot be pressed in service against a third
party like the state when it seeks to enforce the provisions of the Act against the tenure-
holder.22”

The following postulates are sine qua non for basing a claim on s 53A of the TP Act:

“(i) There must be a contract to transfer for consideration any immovable property.”

“(ii) The contract must be in writing, signed by the transferor, or by someone on his behalf.

“(iii) The writing must be in such words from which the terms necessary to construe the
transfer can be ascertained.”

“(iv) The transferee must in part performance of the contract take possession of the property,
or of any part thereof.”

“(v) The transferee must have done some act in furtherance of the contract.”

“(vi) The transferee must have performed or be willing to perform his part of the
contract.23”

“"In view of the amendment by the Amending Act of 2001, another requirement would be
that the document containing contract for transfer of immovable property, if executed on or

22
. State of Uttar Pradesh v District Judge AIR 1997 SC 53
23
. Nathulal v Phool Chand (1969) 3 SCC 120, AIR 1970 SC 546; Shrimant Shamrao Suryavanshi v Pralhad
Bhairoba Suryavanshi (2002) 3 SCC 676, AIR 2002 SC 960; Rambhau Namdeo Gajre v Narayan Bapuji Dhotra
(2004) 8 SCC 614; Ram Kumar Agarwal v Thawar Das (1999) 7 SCC 303, p 309; Jacobs Private Limited v
Thomas Jacob AIR 1995 Ker 249. See also Damodaran v Shekharan AIR 1993 Ker 242; M Mariappa v AK
Sathyanarayan Shetty AIR 1984 Kant 58.

12
after the commencement of the Registration and Other Related Laws (Amendment) Act 2001,
ie, 24 September 2001, has been registered.”

“A proposed vendee cannot protect his possession of the immovable property on the basis of
an oral agreement. Written agreement is sine qua non for applicability of the equitable
doctrine of part performance enshrined under s 53A.24”

“In the absence of the pleadings and evidence of all the essential conditions, making out a
defence of part performance to protect possession claimed by the plaintiff, would not be
attracted.25 The plea under s 53A of the TP Act raises a mixed question of law and fact and,
therefore, cannot be permitted to be urged for the first time at the stage of second appeal.26”

“Where the 2nd defendant took a defence under S.53-A only on the basis that the 1 st defendant
has given possession on grant of allotment of lands in their favour and the said allotment was
only on the basis of the contract between the 1st and the 2nd defendants, they cannot use S.53A
as a shield to debar the plaintiff from claiming possession when they are not parties to the
agreement to sale between 1st defendant and plaintiff.27”

“Where the transferee was put in possession of the property in pursuance of a deed of
agreement for its sale and continued in possession, he must be deemed to be protected by
S.53A.28”

“The position of a person who takes possession of the property in part performance of a
contract for sale of the said property in his favour fulfilling all the requirements of S.53A is
analogous to the position of holders of a limited or life estate, mortgagees in possession,
lessees having the right to sublet for such a person who also holds the property in his own
right.29”

“Benefit of the section goes not only to the party to the transfer for consideration, but also
one who is claiming under that party. 30 Similarly under S.53-A, a proposed transferee is

24
. Nathulal v Phool Chand (1969) 3 SCC 120; Sardar Govind Rao v Devi Sahai (1982) 1 SCC 237; Mool
Chand v Bakhra Rohan (2002) 2 SCC 612; see also Nigamananda Patra v Sarat Chandra Patra AIR 1998 Ori 19.
25
. Hazilal v Jugal Kishore AIR 1999 MP 104
26
. Ram Kumar Agarwal v Thawar Das (1999) 7 SCC 303, p 309, [1999] 4 LRI 687; Sham Lal v Mathi AIR
2002 HP 66, para 18.
27
. 2002 (2) Cur CC 330 (337) (Mad)
28
. 1999(2) Gauhati LR 391 (403)
29
. 1979 All LJ 823 (826): (1979)2 Rent LR 533
30
. AIR 1996 Mad Pra 307 (310) : 1966 Jab LJ 1112

13
entitiled to protect his possession against the true owner or any person claiming through
him.31”

“Where after the creation of usufructuary mortgage the mortgagor took fresh loan and agreed
that on failure to repay loan, he would sell the property to mortgagee for the loan amount, the
document amounted to agreement of sale but being unregistered was of no effect,
mortgagor’s right to redeem was not extinguished. S. 53-A has no application.32”

“Section 53-A was inserted principally for the protection of ignorant transferees who take
possession or spend money in improvements relying on documents which are ineffective as
transfers or on contracts which cannot be proved for want of registration. The effect of the
section is to relax the strict provisions of the Transfer of Property Act and the Registration
Act in favour of the transferees in order to allow the defence of part performance to be
established.”

“Provision of S.53-A does not apply to transferee during pendency of suit.33”

“The principle of part performance cannot be applied in case of gifts.34”

“Where the agreement of sale of immovable property was in writing and it was proved that
the transferee was already in possession of the property and, in part performance of the
agreement he had paid two instalments due under the agreement in time; however the third
instalment was paid a few months after the due date, because of the death of one of the
transferors and it was accepted by the transferors and the transferee was also willing to
perform his part of the contract, S. 53-A shall be applicable in his case.35”

“Where the possession was given under Power of Attorney and not given in terms of
agreement, protection under S. 53A could not be claimed.36”

“Where a mother enters into agreement to sell property owned by minors as co-owners and
possession is given to the prospective purchaser, and no major co-owner was a party to the
agreement, the agreement could not operate as a bar for protecting possession of purchaser in
the absence of pleading and evidence of all four essential conditions necessary for making out

31
. 2007 (5) Mah LJ 791 (796)
32
. AIR 1986 Kant 221 (223) : (1985) 2 Kant LJ 364
33
. 1991 Pun LJ 242 (243)
34
. AIR 1984 (NOC) 67 : ILR (1983) Him PRA 395
35
. AIR 1984 Punj 95 (97,98)
36
. 2002 (3) Bom CR 611 (618).

14
a defence of part performance. Besides, the doctrine of part performance was not available
against the co-owners, who were not signatories to the agreement nor were consenting
parties.37”

“When the mortgager/vendor agrees to sell the mortgaged property to the mortgagee/putative
vendee in possession, the mortgagee’s status is subsumed or merged in his rights as a putative
vendee under S.53A against the transferor, provided of course the pre-conditions for the
application of S.53A are fulfilled. In such a situation equity of redemption in
mortgagor/vendor is lost, he cannot reclaim possession of mortgaged property.38”

37
. AIR 1000 Madh PRA 104 (107,108)
38
. 2000 AIR SCW 4354 (4357): 2000(8) Supreme 268

15
 AMENDMENT OF REGISTRATION AND
SPECIFIC RELIEF ACT

AMENDMENT ACT OF 1929

“The Amending Act of 1929 did not merely partially introduce the equity of part-
performance into Indian law by enacting s 53A, but also reinforced the position by amending
the Registration Act 1908 and Specific Relief Act 1881.”

“Section 49 of the Registration Act 1908 which enacts that a document required to be
registered, but not registered, shall not affect the immovable property comprised therein, or
be received as evidence of any transaction affecting such property, is amended, and a proviso
is inserted to permit such a document being received in evidence in a suit for specific
performance, or as evidence of part-performance of a contract for the purposes of s 53A of
the TP Act.”

“This proviso made it clear that S.49 does not prevent an unregistered agreement or deed to
be admitted in evidence as a contract. 39 It gave statutory recognition to Puchha Lal v Kunj
Behari Lal,40 and supersedes the decision in Sanjib Chandra v Santosh Kumar.41”

“Under the proviso, the unregistered document may be referred to as evidence that certain
acts are done in performance of the agreement, for instance when a building has been erected
in the terms of an unregistered lease. 42 However, a document which must be regarded as
unregistered for fraud on registration cannot be referred to for invoking this section.43”

AMENDING ACT OF 2001

“The amendments made the amending Act of 1929, both under the TP Act as well as the
Registration Act 1908, to even unregistered documents for the purpose of S.53A has now
been withdrawn by the amendments made by the Registration and Other Related Laws

39
. Girja v Girdhari (1950) ILR 29 Pat 628, AIR 1951 Pat 277; Rajendra N Sarkar v Gour C Ghosh (1970) 75
Cal WN 106.
40
. (1913) 18 Cal WN 445, 20 IC 803.
41
. (1922) ILR 49 Cal 507, 69 IC 877, AIR 1922 Cal 436, foll in Ramjoo Mahomed v Haridas Mullick (1925)
ILR 52 Cal 695, 91 IC 320, AIR 1925 Cal 1087.
42
. Cf Lester v Foxcroft (1701) Colles PC 108, W & T LC, vol II, 9th edn, p 410.
43
. Anand Narain v Lala Murli Manohar AIR 1945 Oudh 120

16
(Amendment) Act 2001, which has come into force with effect from 24 September 2001. By
this amending Act, as already noticed above, the words 'the contract, though required to be
registered, has not been registered, or,' as appearing in para 4 of s 53A has been omitted.
Simultaneously, S.17 and S.49 of the Registration Act 1908 have been amended making it
clear that unless the documents containing contract to transfer for consideration any
immovable property for the purpose of S.53A is registered, it shall not have effect for the
purposes of S.53A.”

AMENDMENT IN SPECIFIC RELIEF ACT

“The Amending Act also inserted a new section, Section 27A, in the Specific Relief Act
1881, providing that a party may sue for the specific performance of a contract in writing to
lease immovable property, even though it is not registered, if he has acted in part-
performance of the agreement.”

“This amendment was wider than S.53A, for the section enacts an equity which is only
available as a defence. Section 27A of the Specific Relief Act, however, enacted an active
equity, as in English law, sufficient to support an independent action by a plaintiff. 44 If a
plaintiff was in possession under a lease (which would otherwise be inadmissible for want of
registration), he could put the lease in evidence, and sue upon it for specific performance
treating it as a contract, or to show the character and nature of the possession of the
defendant.45 Whether a contract could be specifically enforced was not a relevant factor in
granting relief under this section.46 Section 27A is not re-enacted in the Specific Relief Act
1963. Protection of S.53A would be available to the vendee till his suit for specific
performance of contract is disposed off finally. 47 The amending Act of 2001 has not made
any amendments in the Specific Relief Act 1963.”

44
. Hari Prasad v Hanmantrao (1936) ILR Nag 115, 170 IC 554, AIR 1937 Nag 74.
45
. Murlidhar v Tara AIR 1953 Cal 349.
46
. Sakharam v Sitaram AIR 1952 Nag 244.
47
. Sakharam v Sitaram AIR 1952 Nag 244.

17
APPLICABILITY OF THE LIMITATION ACT

“Under the well-known principle that the law of limitation does not apply to a defence, a
defence raised under this section is not subject to any rule of limitation.”

“Section 53-A does not provide for any limitation on expiry whereof the defence
contemplated in the section will be lost or will extinguish. Limitation bars the remedy but not
the right in possession. Thus law of limitation does not apply to S. 53A. A perusal of S.53-A
shows that it does not forbid a defendant- transferee from taking a plea in his defence to
protect his possession over the suit property obtained in part performance of a contract even
though period of limitation for bringing a suit for specific performance has expired.48”

“The doctrine of part performance is a doctrine of equity. Delay defeats equity. Therefore
when the agreement of sale becomes unenforceable by reason of law of limitation, the
defence of part performance founded on the agreement cannot be permitted to be enforced as
the agreement has lost all efficacy inasmuch as the right to enforce it is lost by the law of
limitation. The doctrine of part performance cannot be permitted to be invoked in these
circumstances.49”

48
. AIR 2002 SC 960 : 2002 AIR SCW 659
49
. ILR (1988) Kant 631, AIR 2008 Kant 157

18
 UNDERSTANDING SECTION 53-A

PARA.1

““Where 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, ......””

(A) “contracts to transfer for consideration”

“These words exclude gifts. A gift does not involve a contract, and even before the enactment
of the section, it was held that the doctrine of part performance did not apply to gifts. 50
Moreover, a gift is complete on acceptance, subject to registration. 51 In a Calcutta case,52 the
doctrine was applied to an antenuptial gift; but the case was regarded as one of contract, the
court treating the antenuptial promise of the bride's father as becoming a binding contract
when the marriage followed. The section applies to a contract of dower governed by
Mahomedan law, where the bride is in possession and has married in performance of the
contract.53”

TRANSFERS AND AGREEMENTS COVERED BY THIS SECTION

“The section applies to leases and agreement to lease. 54 Where an agreement to lease is
evidenced by correspondence, the lessee is put in possession, and there has been the
acceptance of rent by the lessor for several years, the Supreme Court held that the section was
applicable, and the lessee could defend the suit for ejectment.55”

“However, in a case from Delhi for the renewal of lease, oral negotiation were carried out
between the parties. The draft lease was prepared, but was not signed by either of the parties.
It was held that no concluded contract came in to existence, and the suit for specific
performance is not maintainable.56 In another case, the court held that s 53A was not
50
. 4 Kuchwar Lime Stone Co v Secretary of State (1936) ILR 15 Pat 460, 163 IC 507, AIR 1936 Pat 372.
51
. SN Banerji v Kuchwar Lime & Stone Co Ltd (1941) ILR 21 Pat 24, (1942) All LJ 149, 44 Bom LR 324, 46
Cal WN 374, (1942) 1 Mad LJ 1, 197 IC 399, AIR 1941 PC 128; Maung Ba v Maung Kywe (1928) ILR 6 Rang
125, 110 IC 735, AIR 1928 Rang 124; Osman Gazi v Hemanta Kumar (1969) 74 Cal WN 355.
52
. Ram Gopal v Custodian [1966] 2 SCR 214, AIR 1966 SC 1438, [1966] 2 SCJ 782
53
. Technicians Studio Pvt Ltd v Lila Ghosh AIR 1979 SC 2425, (1979) 4 SCC 324, [1978] 1 SCR 516.
54
. Mastram v Ma Ohn 154 IC 769, AIR 1934 Rang 284
55
. Kaur Ram v Chaman Lal (1900) 154 IC 1088, AIR 1934 Lah 751; Ramchander v Maharaj Kunwar AIR
1939 All 611; Etah Municipality v Moradhuj 189 IC 819, AIR 1940 All 340.
56
. Ram Gopal Reddy v Additional Custodian Evacuee Property, Hyderabad AIR 1966 SC 1438.

19
applicable to a lease agreement.57 A lease of property being distinct from the transfer of
property, s 53A is not applicable.58”

“It also applies to usufructuary mortgages, and mortgages with possession. 59 It does not,
however, apply to a family arrangement, which does not involve a transfer of property, 60 or to
a partition, which is not a transfer at all.61 It is doubtful whether the section applies to an
agreement to transfer a partial interest in property, such as a right to win minerals, or to cut
timber.62”

“The mortgagee cannot claim a right higher than what is provided in the ultimate document
agreed to be executed, by invoking s 53A. In the case of an agreement to execute a mortgage
for a definite period under which possession was handed over to the defendant, if the
conditions of s 53A are satisfied, he will be entitled to get all the rights under the mortgage
which are agreed to be executed, but cannot claim to continue in possession after the expiry
of that period relying on s 53A. The general law of mortgages or the rights and liabilities of
the mortgagor and mortgagee are not modified by s 53A.63”

(B) “any immovable property”

“The section applies only to contracts to transfer immovable property. It does not apply to
contracts to transfer movable property.64 Even under the English law, the doctrine was not
applicable to contracts relating to movable property.”

“In a case65 the immovable property in possession of the transferee was sold for recovery of
taxes due on the property in possession of the transferee and the money realised was
deposited in the Court. The transferor made a claim to the money. It was held that it could not
be held that this section was inapplicable on the ground that the transferor was enforcing his
right against the money and not against the immovable property, because unless the transferor
could enforce his right against the property he could not enforce it against the money.”

57
. Patel Natwarlal Rupji v Kondh Group Kheti Vishayak (1996) 7 SCC 690, AIR 1996 SC 1088; S P
Munnuswami Gounder v Ersu Gounder AIR 1975 Mad 25, (1974) 1 Mad LJ 499; NP Tripathi v Damayanti
Devi & anor AIR 1988 Pat 123, p 125.
58
. Chetak Construction Ltd v Om Prakash AIR 2003 MP 145, p 150
59
. Delhi Motor Company v UA Basrurkar AIR 1968 SC 794, [1968] 2 SCR 720
60
. State of Uttar Pradesh v District Judge (1997) 1 SCC 496, AIR 1997 SC 53
61
. Bhalkoo Ghaslya v Hiryabai AIR 1949 Nag 410.
62
. Chetak Constmction Ltd v Om Prakash AIR 2003 MP 145.
63
. Sadashiv Chander Bhamgare v Eknath Pandharinath Nangude AIR 2004 Bom 378, p 384
64
. AIR 1957 Manipur 9 (13), AIR 2003 Del 15 (DB)
65
. AIR 1957 Andh Pra 854 (858,859) : ILR (1956) Andh Pra 1019 (DB)

20
(C) “by writing”

“The section only applies to a case where there is a written agreement. An oral agreement
will not be sufficient.66”

“There seem to be two reasons for this limitation: (1) The occasion for the doctrine arises in
India with reference to documents inadmissible in evidence for want of registration; and (2)
The risk of perjuries, if an oral contract could be set up as a defence after limitation for a suit
for specific performance had expired. Mere oral agreement does not create any interest or
charge. The equitable right of S.53A of the TP Act cannot be claimed for restraining sale of
the suit property, but can be sought for seeking protection against dispossession.67”

“Though the contract must be in writing, its existence and its terms may, in appropriate cases,
be proved by secondary evidence, as when the original is in the possession or power of the
transferor.68 It cannot, however, be proved from what purports to be its quotation in another
document.69 A writing which may refer to some part or parts of a contract which is oral, is not
sufficient.70 So also, a writing which referred by mistake to a different piece of land was held
as not entitling a person to claim part performance. 71 It is, however, not necessary that there
should be a formal agreement.72 But when the terms of the agreement are reduced to a form
of document, such document serves the purpose of this section. 73 An operative document
incorporating a previous oral agreement is sufficient, even if it comes into existence later; 74
but a mere memorandum recording that possession was taken earlier under an oral agreement,
is not.75 A written agreement cannot, however, be relied upon if its material terms have been
subsequently orally varied.76 Where the recital indicating passing of possession was found to
have been subsequently inter-polated in the deed of agreement, it was held that the
interpolation by which the plaintiff could claim part performance under S.53A of the TP Act

66
. Chetak Construction Ltd v Om Prakash AIR 2003 MP 145, p 150.

67
. Delhi Motor Company v UA Basrurkar AIR 1968 SC 794, [1968] 2 SCR 720
68
. 60 State of Uttar Pradesh v District Judge (1997) 1 SCC 496, AIR 1997 SC 53.
69
. Bhalkoo Ghaslya v Hiryabai AIR 1949 Nag 410
70
. Chetak Constmction Ltd v Om Prakash AIR 2003 MP 145.
71
. Sadashiv Chander Bhamgare v Eknath Pandharinath Nangude AIR 2004 Bom 378, p 384.
72
. AIR 1939 All 611
73
. AIR 1957 AP 854
74
. AIR 1985 P&H 195
75
. AIR 1952 Ori 143.
76
. AIR 1964 Raj 11.

21
was a material alteration, and the plaintiff could not, therefore, enforce his right under that
agreement.77”

(D) “signed by him or on his behalf”

“The contract must be signed by or on behalf of the person sought to be charged under this
section.78 It follows, therefore, that a kabuliyat, signed only by the lessee, does not entitle him
to relief under this section.79 Where the lease deed, though registered, is not signed by the
lessee, but possession had been delivered to the lessee, the lessee can claim the benefit of S.
53A,80 It had been held by the Madras,81 and Andhra82 High Courts that where such a contract
was signed by another person as agent or karta of a joint family, a plea of part performance
could not be taken against the members of the joint family, unless it was expressly stated to
be on behalf of the joint family. This was erroneous and the decisions were criticised in
earlier editions of this work. Both the decisions have been expressly overruled, the former by
the Privy Council,83 and the latter by a Full Bench of the Andhra High Court. 84 Where a
contract is signed by a person, whose act would be binding on the real owner, the section
applies.85 It has also been held that these words must be liberally construed, 86 and such liberal
construction is in accord with the English Law.87The position is, of course different, where A,
who was part-owner of a property which had been leased by him to a firm of which he was a
member, signed the contract not as part-owner but, as a member of the firm; the section could
not be invoked against the other owner.88 In granting relief under S.53A, the question whether
the contract is specifically enforceable has no bearing at all, and the doctrine of part
performance applies even if specific performance is not otherwise permissible.89”

77
. Juhar Mal v Kapur Chand AIR 1983 Raj 139
78
. Babu Ram v Basdeo AIR 1982 All 414, p 424, para 33 (following Pandit Ram Chander v Pandit Maharaj
Kunwar AIR 1939 All 611).
79
. Ajab Singh v Jhabbulal (1949) ILR Nag 449, AIR 1948 Nag 67.
80
. Ekudashi v Ganga AIR 1981 All 373
81
. Savarkundla Nagarpalika v Maninagar Nivas Nirmal Sahakari Mandhi Ltd AIR 1981 Guj 243
82
. Ewaz Ali v Firdous Jehan AIR 1944 Oudh 212; Radhanath Swain v Madhusudan (1956) ILR Cut 42, AIR
1956 Ori 58
83
. Achayya v Venkata Subba Rao AIR 1957 AP 854; Akram Mea v Secunderabad Municipal Corp AIR 1957
AP 859; Maruti v Krishna (1966) ILR Bom 291, 67 Bom LR 761, AIR 1967 Bom 34.
84
. Delhi Motor Co v Basurkar [1968] 2 SCR 720, AIR 1968 SC 794, [1968] 2 SCJ 614.
85
. Maruti v Krishna AIR 1967 Bom 34. But see Padmalabha v Appalanarasamma AIR 1952 Ori 143.
86
. V Krishnaiah v N Narasimhareddy AIR 1976 AP 395.
87
. Salim v First Addl Civil Judge, Saharanpur AIR 1996 All 34
88
. Hemraj v Rustomji AIR 1953 SC 503.
89
. Balaram Jairam v Kewalram AIR 1940 Nag 396; Ranchod v Zipru (1954) ILR Bom 194, 55 Bom LR 890,
AIR 1954 Bom 153; Bobba Suramma v P Chandramma AIR 1959 AP 568; Karunakar Das v Mahakuren (1959)
ILR Cut 453, AIR 1960 Ori 170. But see Labhu v Shiv Ram (1939) 41 Punj LR 56, AIR 1939 Lah 57; Jagad
Bhusan v Panna Lal AIR 1941 Cal 287, on Page 20 app (1943) ILR 1 Cal 56, 206 IC 624, AIR 1943 Cal 344.

22
(E) “terms necessary to constitute the transfer can be ascertained with reasonable certainty”

“A contract the terms of which cannot be ascertained with reasonable certainty, cannot be
enforced.90 It is one of the necessary ingredients of s 53A that the terms of the written
contract must be ascertainable with reasonable certainty. The emphasis on the word
'reasonable certainty' pre-supposes that the court should be in a position to judge the exact
nature of the transaction, ie, the subject matter of the document. This is the foundational basis
for s 53A, and in the absence of a document or a secondary evidence from which the court
can ascertain the terms of that document with reasonable certainty, the defendants are not
entitled to the benefit of the doctrine of part performance.91”

PARA 2

“...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...”,

Taken or continues in possession

“Section 53A applies to a person who contracts to transfer immovable property in writing. If
the proposed transferee in the agreement has taken possession of the property or he continues
in possession thereof being already in possession, part performance of the contract and has
done some act in furtherance of the contract, and transferee has perfomed or is willing to
perform his part of the contract, the transferor shall be debarred from enforcing any right in
respect of the property.92”

“The section only applies to cases where the transferee is in possession under a contract to
transfer immovable property. Sine qua non for taking shelter under s 53A is proof of
possession.93 If the transferee has not taken possession, the section does not apply. 94 In a case
where a person claims benefit of part performance, evidence that he was inducted into

90
. Srikakulam Subrahmanayam v Kurra Subba Rao 75 IA 115, (1949) ILR Mad 141, 50 Bom LR 646, (1948)
All LJ 226, 52 Cal WN 706, (1948) 2 Mad LJ 22, AIR 1948 PC 95, reversing Subramanayam v Subba Rao AIR
1944 Mad 337; Amrao v Baburao (1950) ILR Nag 25, AIR 1951 Nag 405; Manglu Mehra v Sukru Meher
(1950) ILR Cut 107, AIR 1950 Ori 217.
91
. Audinarayudu v Mangamma (1943) 2 Mad LJ 300, 56 Mad LW 502, AIR 1943 Mad 706
92
. Shashi Kapila v RP Ashwin (2002) 1 SCC 583, AIR 2002 SC 101
93
. S Parmuthai v P Muthusamy AIR 2004 Mad 450, para 19
94
. Thota Chima Subba Rao v Malapalli Raju (1949) FCR 484; Sanyasi Raju v Kamappadu AIR 1960 AP 83;
Nila Padhan v Page 17 Gokulananda Padhi AIR 1950 Ori 118.

23
possession for the first time subsequent to the contract, would be a strong piece of evidence
regarding the contract, and of possession changing hands pursuant to the contract. Continuous
possession of a tenant in the suit property even after entering into the sale agreements would
not by itself amount to a part-performance, putting the tenant in possession of the suit
properties pursuant to the sale agreements.95”

“It is not necessary that the delivery of the possession must be at the instance of the vendor.
The words used in the section are 'and the transferee has... taken possession'.96”

“It is not necessary, that the contract must contain a direct covenant regarding transfer of
possession. It is only necessary that possession should have been taken in part performance of
the contract.97”

“It is not necessary that the transferee must be in possession of the entire property agreed to
be sold. It is enough if the transferee continues in possession or takes possession even of a
part of the property.98Where the transferee was already in possession of immovable property
under an agreement of sale, and the transferor accepted delayed payment of instalment under
the agreement by the transferee, and the transferee was willing to perform his part of contract,
the benefit under s 53A cannot be denied to the transferee.99”

“Temporary possession was given to the defendant for carrying out construction. It was held
that the exclusive possession in the legal sense remained with the plaintiff, and the defendants
were not entitled to protect their possession under s 53A of the TP Act.100”

95
. Chinnaraj v Sheik Davood Nachair AIR 2003 Mad 89, para 15.
96
. Nagar Khan v Gopi Ram AIR 1976 Pat 2
97
. Balkrishna v Ranganath (1950) ILR Nag 613, AIR 1951 Nag 171; Bobba Suramma v P Chandramma AIR
1959 AP 568. See further note (15) below.
98
. Durga Prasad v Kanhaiyalal AIR 1979 Raj 200
99
. Teja Singh v Ram Prakash Talwar AIR 1984 P & H 95.
100
. RK Apartments P Ltd v Arun Bahree (1999) 77 DLT 193

24
Act of Part Performance

“Repairs and improvements effected under a mortgage cannot be an act of part performance
under a subsequent sale, as it is an act preliminary to a sale.101”

“The mere retention by a tenant,102 or a mortgagee in possession,103 of possession after the

“The section does not apply when a mortgagee in possession continues in possession under
an oral sale;107”

“So, also, where a lessee retained possession after the expiry of the lease, under a written
agreement to purchase the property, for which he had paid the consideration. 108 For a tenant
continuing in possession of an immovable property after a contract to transfer, written and
signed by the landlord, to get the protection under s 53A, it is necessary to show that he
continues in possession in pursuance of the contract. Mere continuance in possession does not
satisfy the requirement of s 53A.109”

“The act in question must be referrable to the contract alleged to have been partly
performed.110”

101
. Kukaji v Basantilal AIR 1955 Madh Bh 93.
102
. Dakshinamurthi v Dhanakoti (1925) 48 Mad LJ 661, 87 IC 552, AIR 1925 Mad 965; Bhagwandas v Surajmal
AIR 1961 MP 237.
103
. Pannalal v Labhchand AIR 1955 Madh Bh 49.
104
. Manjural Hoque v Mewajan Bibi (1956) 60 Cal WN 714, 97 Cal LJ 257, AIR 1956 Cal 350.
105
. Satyaniranjan Chakravarty v Habibur Sobhan 144 IC 598, AIR 1933 Cal 393.
106
. Naicker P v S Pillai AIR 1971 Mad 466.
107
. Ma Shwe Kin v Ka Hee (1924) 3 Bur LJ 211, 84 IC 514, AIR 1924 Rang 381 (the court also held that the
possession was not referrable only to the contract).
108
. Annamalai Goundan v Venkataswami Naidu (1959) ILR Mad 796, (1959) 1 Mad LJ 301, AIR 1959 Mad
354. See, however, Mallappa Bhimanna v Land Tribunal (1979) 2 Kant LJ 218 and Mallanna v Abdul Nabi &
ors AIR 1986 Kant 221, p 223.
109
. Sunil Kumar Sarkar v Aghor Kumar Basu AIR 1989 Gau 39.
110
. Ranchhoddas Chhaganlal v Devaji Supdu AIR 1977 SC 1517, [1977] 2 SCR 621, (1977) 3 SCC 584.

25
“In two cases,111 however, the doctrine was wrongly applied to oral sales to persons in
possession, though there was no act done in furtherance of the contract for sale. It has been
held that the advancing of moneys for the purchase of stamp paper for the conveyance, was
an act of part performance.112”

PARA 3

“.. and the transferee has performed or is willing to perform his part of the contract..”

“...has performed or is willing to perform...”

“The section confers no rights on a party who was not willing to perform his part of the
contract.113”

“A transferee has to prove that he was honestly ready, and willing to perform his part under
the contract114. A prospective vendee who had taken possession could not resist
dispossession, if he were not willing to pay the price agreed upon. 115The High Court of
Karnataka has pointed out that in order to substantiate the plea of part performance, the
defendant who takes this plea must assert that he had demanded specific performance within
the stipulated time. Plea of part-performance is not available in case one fails to plead in his
written statement that he ready and willing to perform his part of contract. 116 Failure to take
this plea would mean that he did not show readiness and willingness to perform his part of
the contract.117”

“The doctrine of readiness and willingness is an emphatic way of expression to establish that
the transferee always abides by the terms of the agreement, and is willing to perform his part
of the contract. Part performance, as a statutory right, is conditioned upon the transferee's
continuous willingness to perform his part of the contract in terms covenanted thereunder.118”

“Willingness to perform the roles ascribed to a party in a contract is primarily a mental

111
. Naganna v Appalaraju 129 IC 59, AIR 1930 Mad 1021; Husaini Begum v Sultani Begum 105 IC 479, AIR
1927 Oudh 485.
112
. Devisahai v Govindrao AIR 1965 MP 275.
113
. Chinnaraj v Sheik Davood Nachair AIR 2003 Mad 89
114
. Sunder Bai v Naint Ram AIR 2003 MP 268, para 9.
115
. Bechardas v Ahmedabad Municipality AIR 1941 Bom 346; Sulleman v Patel (1933) 35 Bom LR 722, 145
IC 557, AIR 1933 Bom 381 not followed Bhagwati Lal v Shri Krishan Chandra AIR 1994 Raj 331 (NOC).
116
. Hukma v Manga AIR 2003 P&H 287
117
. M Mariyappa v AK Satyanarayana AIR 1984 Kant 50.
118
. Mohan Lal v Mira Abdul Gaffar AIR 1996 SC 910

26
absolute and unconditional.119If willingness is studded with a condition, it is in fact no more
than an offer, and cannot be termed as willingness. Where the vendee company expresses its
willingness to pay the amount, provided the plaintiff clears his income tax arrears, there is no
complete willingness, but a conditional willingness or partial willingness which is not
sufficient to arm the company with the shield provided under s 53A of the TP Act.120”

PARA4

““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 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..””

“Section 53A makes it clear by employing the word 'then' after laying down the pre-requisites
that a transferee can seek refuge under it only after satisfying the other pre-requisites.121”

“These words expressly supersede the provisions of the Registration Act 1908. Under the
proviso added to s 49 of the Registration Act 1908, unregistered documents are admissible as
evidence of part performance. However, by the amendments made by the Registration and
Other Related Laws (Amendment) Act 2001, which has come into force with effect from 24
September 2001, as already noticed above, the words 'the contract, though required to be
registered, has not been registered, or,' as appearing in para 4 of s 53A has been omitted.”

“Simultaneously, ss 17 and 49 of the Registration Act 1908 has been amended making it
clear that unless the documents containing contract to transfer for consideration any
immovable property for the purpose of s 53A is registered, it shall not have effect for the
purposes of s 53A.”

119
. Chinnaraj v Sheik Davood Nachair AIR 2003 Mad 89, para 16e.
120
. Jacobs Private Limited v Thomas Jacob AIR 1995 Ker 249
121
. Jacobs Private Limited v Thomas Jacob AIR 1995 Ker 249.

27
Where there is an Instrument of Transfer

“The case of an instrument of transfer is put in the alternative. The amendment to s 49 of the
Registration Act 1908 shows that the section applies although there is not a distinct and
separate contract in writing. The instrument itself is treated as the contract in writing, as was
done by CJ Jenkins in Puchha Lal v Kunj Behari Lal . 122”

“In order that the doctrine of part performance may be invoked, it is necessary that the acts of
part performance must be such as not only to be referable to the contract of which the part
performance is alleged, but to be referable to no other title.123”

“After the amending Act of 2001, unless the documents containing contract to transfer for
consideration any immovable property for the purpose of s 53A is registered, it shall not have
effect for the purposes of s 53A. The section does not any more apply to an unregistered
instrument. However, even prior to the above amendment, it was held that the section would
not apply if the instrument is unsigned, or if it cannot be proved for some other reason, eg, if
the original is unstamped and lost so that secondary evidence, is inadmissible, as in Hiralal v
Shankar .124”

PROVISIO:

“Provided that nothing in this section shall affect the rights of a transferee for
consideration who has no notice of the contract or of the part performance thereof.”

Transferee for Consideration without Notice

“The purpose of proviso is to defeat a claim which would otherwise, have succeeded under
the main part of the section. The question of this proviso does not arise until and unless the
claimant has substantiated his claim under the main part of the section. If the defendant fails
to establish the requirements of s 53A, the proviso would not come into the picture at all,
irrespective of whether transferee has notice of the defendant's agreement or the part
performance thereof, he will be entitled to succeed.125”

122
. (1913) 18 Cal WN 445, 20 IC 868.
123
Thakamma Mathew v M Azamathulla Khan (1993) 49 DLT 249.
124
. (1921) ILR 45 Bom 1170, 62 IC 637, AIR 1921 Bom 401.
125
. S Veerabadra Naicker v S Sambanda Naicker AIR 2003 Mad 19, paras 29 & 31; Prova Rani v Lalit Mohini AIR
1960 Cal 541, para 5; Yasodammal v Janaki Ammal AIR 1968 Mad 294.

28
 “The proviso to the section saves the right of a transferee for consideration who has no
notice of the contract or its part performance.126 The burden of proving that he is a transferee
for consideration without notice is on the transferee.127This was so held prior to the enactment
of s 53A. As to what constitutes notice, has been discussed in s 3 above. It has been held that
possession by the earlier transferee would operate as notice; the court relied on illustration 2
to s 27(b) of the Specific Relief Act 1877. 128The Specific Relief Act of 1963, re-enacts the
section as s 19(b), but contains no illustrations.”

“In a Rajasthan case, it was held that though the burden of proving that the subsequent
transferee had notice of the prior contract lay on the defendant (who claimed the benefit of
part performance), the subsequent transferee must be taken to have implied notice of the
agreement (to sell) and of part performance, because since the defendant was admittedly in
possession, the transferee would have had notice of the title of the defendant, but for wilful
abstention from inquiry. In this case, the defendant was in possession as mortgagee and
agreed to purchase.129”

126
. Hemraj v Rustomji AIR 1953 SC 503; Dayawati v Madan Lal Verma AIR 2003 All 276, para 20.
127
. Prova Rani v Lalit Mohini AIR 1960 Cal 541; Mahadei Halua v Ram Krishna AIR 1960 Pat 354.
128
. Mahadei Halua v Ram Krishna AIR 1960 Pat 354.
129
. Asharam v Bhanwarlal AIR 1974 Raj 188.

29
 Nature of Right: Available Only as a
Defence
“The Privy Council in Probodh Kumar Das v Dantmara Tea Co has held that the right
conferred by s 53A is a right available only to the defendant to protect his possession. The
section is so framed as to impose statutory bar on the transfer; it confers no active title on the
transferee. Indeed any other reading of it would make serious inroad on the whole scheme of
the TP Act. The above law laid down has been followed with approval by Supreme Court in
Technicians Studio Pvt Ltd v Leela Ghosh .130”

“It has been held that part-performance in India does not give rise to equity as in England,
but to a statutory right which is a comparatively restricted right. In that, it is available only as
a defence. It has been held that s 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 s 53A
only a right to defend his possession. It can be used only as a defence.”

“This section does not create a title in the defendant. It merely operates as a bar to the
plaintiff asserting his title. It is limited to cases where the transferee had taken possession,
and against whom the transferor is debarred from enforcing any right, other than that
expressly provided by the contract. The section imposes a bar on the transferor. When the
conditions mentioned in the section are fulfilled, it debars him from enforcing against the
transferee any right or interest not expressly provided by the contract. So far as the transferee
is concerned, the section confers a right on him to the extent it imposes a bar on the
transferor. However, that is only a right to protect his possession against any challenge to it
by the latter contrary to the terms of the contract. The section imposes a statutory bar on the
transferor, but confers no title on the transferee.”

“The section does not confer title on the defendant in possession; and he cannot maintain a
suit on title. The Supreme Court has approved this principle.131”

“A transferee in possession under s 53A of the TP Act can ask for an injunction for the
protection of his rights. He can claim injunction against the transferor restraining him from
interfering with his possession. The Madhya Pradesh High Court has held that a transferee-in-
possession satisfying all conditions of the section must be protected by the court, whether he

130
. (1977) 4 SCC 324, para 5, AIR 1977 SC 2425.
131
. Ram Gopal v Custodian [1966] 2 SCR 214, AIR 1966 SC 1438, [1966] 2 SCJ 782.

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comes as a plaintiff or as a defendant. The court cannot tell the transferee-in-possession if he
comes as a plaintiff -- 'go back, use your physical strength and muscle power to resist and
repel the attack of the transferor and drive him to come to the court as a plaintiff and then if
you are arrayed as a defendant, the court will protect you.’”

Plea of Part Performance

“The plea under s 53A, being a mixed question of law and fact, cannot be raised for the first
time in second appeal by the respondent.132 In absence of a contract in writing, a party cannot
be allowed to raise a plea of part performance.133”

132
. Hiralal Agarwala v Bhagirathi Gore AIR 1975 Cal 445.
133
. Kalawati Tripathi and ors v Damyanti Devi and anor AIR 1993 Pat 1, p 11

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 Conclusion: Part Performance Not a
Sword

“Some Indian decisions betray a misconception of the limited scope of the section.”

“In this regard, the Superme Court has laid to rest all doubts, and held that the benefit of s
53A cannot be taken aid of by the transferee-plaintiff to establish his right as owner of the
property.134 It has further been held that s 53A can be used as a shield, but not as an
independent claim either as plaintiff, or as a defendant. It is a 'weapon of defence and not
attack'.”

“No doubt s 53A creates a right in favour of transferee to defend his possession. But if he is
forcibly ejected by the transferor, he can file a suit for recovery of possession not pursuant to
s 53A, but under s 6 of the Specific Relief Act 1963. However, the Madhya Pradesh High
Court has held that a transferee-in-possession satisfying all conditions of the section must be
protected by the court, whether he comes as a plaintiff or as a defendant.”

“A Full Bench of Bombay High Court has held that when it is said that proposed transferee-
in-possession can use s 53A as a shield, but not as a sword, it means that he can use s 53A
either as a plaintiff or as a defendant to protect his possession, but he cannot use s 53A either
for getting title or for getting possession if he is not actually in possession. In other words,
when the transferee-in-possession comes to the court as a plaintiff seeking a decree of
perpetual injunction against the transferor, he is using s 53A as a shield to protect his
possession.”

“According to the Allahabad High Court, s 53A applies to the transferee, even if he is a
plaintiff. Further, it applies not only where the transferee is physically in possession on the
date of suit, but also where he has been illegally dispossessed by some person claiming under
the transferor.”

134
. Ram Gopal Reddy v Additional Custodian Evacuee Property, Hyderabad AIR 1966 SC 143

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 BIBLIOGRAPHY
BOOKS REFERRED:

1. Mulla, The Transfer of Property Act, 2006 , 10 Edition ,LexisNexis

2. Manohar & Chitaley, Commentary on the Transfer of Property Act, 1st Edition, All India
Reporter Pvt. Ltd.

ONLINE SOURCES:

www.lexisnexis.com.elibrarydsnlu.remotexs.in

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