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The Doctrine of Past Performance, based on principle of equity, developed in England and was
subsequently added to the Transfer of Property Act, 1882 via the Amendment Act of 1929. In law
of contracts (for e.g., a contract for sale), no rights pass to another till the sale is complete But if
a person after entering into a contract performs his part or does any act in furtherance of the
contract, he is entitled to reimbursement or performance in case the other party drags its feet.
The general ground upon which the doctrine is based is prevention of fraud. It is said that where
one party has executed his part of the agreement in the confidence that the other party would do
the same, it is obvious that, if the latter should refuse, it would be a fraud upon the former to
suffer this refusal to work to his prejudice
Under this doctrine, if a person has taken possession of an immovable property on the basis of a
contract then, he would not be ejected from the property on the ground that the sale was
unregistered and legal title had not been transferred to him. For instance, there is a contract of
sale of a piece of land between A and B. The contract is in writing, stamped, attested and duly
executed but not registered by A who is the seller. B, who is the purchaser has performed or is
willing to perform his part of contract, i.e. has paid the price or is willing to pay the same. On the
basis of such contract B takes possession of the land. Now, A sells the land through a registered
deed to C. C having legal title of the land attempts to eject B. At this stage, B has no legal title,
law may not protect his possession but, equity shall help him from being dispossessed. The
doctrine of part performance is, therefore, based on the maxim : Equity looks on that as done
which ought to have been done. That is to say, equity treats the subject matter of a contract as to
its effects in the same manner as if the act contemplated in the contract had been fully executed,
from the moment the agreement has been made, though all the legal formalities (e.g., of
registration) of contract have not been yet completed.
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incomplete instrument of transfer, fail to complete it in the manner specified by law, without
there being any fault on part of the transferees. This section therefore provides for a partial
importation of the English doctrine of part performance. It furnishes a statutory defense to a
person who has no registered title in his favor to maintain possession.
5 Mahomed Musa v. Aghore Kumar Ganguli, (1914) ILR 42 Cal 801; Ariff v. Jadunath, AIR 1931 PC 79;
Mian Pir Bux supra note 2.
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is not the case. The same amending act has simultaneously amended Section 17 and Section 49
of the Registration Act. Therefore, the amendment in Section 53-A should be read together with
amendments in Section 17 & Section 49 of the Registration Act. In section 17 of the Registration
Act, a new clause has been inserted (17-A), which provides that written documents of the
transfer of an immovable property with consideration (e.g. for sale) must be registered for the
purposes of Section 53-A of the T.P Act; and, if such documents are not registered then they shall
have no effect for the purposes of Section 53-A of the Act. Thus, an obvious meaning of these
amended provisions of Section 53-A of the T.P Act and that of Section 17-A of the Registration
Act is that Section 53-A shall not be applicable and the defence of part-performance cannot be
available on the basis of un-registered documents which are executed on or after 24.09.2001, the
date of enforcement of the amending Act 48 of 2001. Therefore, the contract of the transfer of
immovable property with consideration as provided in Section 53-A is now compulsorily
registrable document.
Further, it is to be noted that by inserting Section 17-A, the Registration Act has made an
exception to the settled substantive law with regard to the written contracts affecting immovable
property. The reason is aptly given by Mitra in the following words :
It is settled law that a writing which confers upon a person a right which will come into
existence after fulfillment of certain conditions; does not require registration under Section 17-A.
For example, an agreement for sale of an immovable property will not fall under section 17(1)(b)
as it does not create, assign, limit or extinguish any right, title or interest whether vested or
contingent, of immovable property. An exception to this settled law has been made by inserting
sub-section (1A) in the statute.
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Essential Elements
A valid
contract
Has done
some act in
furtherance
to the
contract
Essential
Elements
Contract
should be in
writing and
ascertainable
Willingness
of
Performance
Possession by
Transferee or
Continuance of
Possession
The Supreme Court in Rambahu Namdeo Gajre v. Narayan Bapuji6, held that the doctrine of part
performance aims at protecting the possession of such transferee provided that certain conditions
are fulfilled. Following are the essential elements/ mandatory conditions required to be fulfilled
for the applicability of Section 53A:
i
There must be a contract to transfer an immovable property for consideration: The contract
should be for the transfer of immovable property for consideration only. For example; gift is a
6(2004) 8 SCC 614
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transfer without consideration, thus the doctrine of part performance will not apply in those
cases. The terms are ascertainable with reasonable certainity; it must clearly show that there is
a transfer of property under the contract.7
The transfer must be for consideration. Section 53-A is applicable where the contract is for
sale or for lease. The section is applicable also to mortgages with possession. It doesnt
applies to transfers made for gifts.
ii
Contract should be in writing and Ascertainable and with Reasonable Certainty: It was held in
Govind Prasad Dubey v. Chandra Mohan Agniotri 8 that contracts entered between should be
in writing and such that the terms of the contracts can be ascertained with reasonable
certainty. Thus if the terms of the contract cannot be ascertained with reasonable certainty then
this section cannot be enforced. Where a tenant wanted to defend his possession on the ground
that there was an oral agreement of sale with his landlord, the Court held that plea of part
performance is not available to him because written contract is must for applicability of
Section 53-A.
In S. Veerabadra Naiker v. Sambanda Naiker,9 the party claiming protection under Section 53A, could neither produce any written agreement nor any evidence of his possession over the
suit property. The documents could not prove that he was ever ready and willing to perform
his part contract. The Madras High Court held that he was not entitled to protection under
Section 53-A against third party purchaser of the suit property.
Writing alone is not sufficient. The contract must also be duly executed. That is to say, it
should be signed by the transferor or by any other person on his behalf. The person who signs
on his behalf must be a person who is authorized by him to sign the document. Therefore, it is
necessary that the contract is either actually signed by the transferor or is signed by a person
who has been specifically authorized to sign on behalf of the transferor and whose signature
7 Hamida v. Humer, AIR 1992 All. 316.
8 AIR 2009 MP 159 (DB)
9 AIR 2003 Mad. 19
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In the present case, the promise to marriage was a consideration for the transfer of property
which was taken as a consideration but since, the there only took place an oral transaction
between the parties and not the contract in writing, thus, it falls within the ambit of Section 9 of
the Act. Thus, it is neither a sale nor a mortgage, lease, exchange or a gift. Hence, the present
case could not be said to fall within the ambit of Section 53A of the Act.
iii
iv
Willingness of performance: The transferee should be ready and should be willing to perform his
part of the contract for the applicability of the contract. Section 53-A is based on equity.
Equity says that one who seeks equity must do equity. Therefore, where a person claims
protection of his possession over a land under Section 53-A, his own conduct must be
11 Nagar Khan v. Gopi Ram, AIR 1976 Pat. 83.
12 Achayya v. Venkata Sabha Rao, AIR 1957 AP 854.
13 Durga Prasad v. Kanhiya Lal, AIR 1929 Raj. 200.
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equitable and just. It is an essential condition for the applicability of this section that the
transferee must be willing to perform his part of contract. Equity of part-performance which is
incorporated in this section cannot favour a transferee who is not ready and willing to do what
is required from him. Accordingly, a vendee who has taken possession of the property, cannot
protect his possession under this section if he is not willing to pay the price agreed upon.
The transferee must himself be willing to perform his part of the contract, for no equities can
arise in favour of a person who is not willing to perform his part of the contract. Accordingly,
a person who has taken possession cannot resist dispossession if he is not willing to pay the
price agreed upon.
Willingness to perform the part ascribed to a party must not be conditional. In Jacob Private
Ltd. v. Thomas Jacob,14 the Kerela High Court held that such willingness in the context of
Section 53-A of the T.P Act must be absolute and unconditional. If the willingness is studded
with a condition, it is in fact no more than an offer and cannot be termed as willingness. The
court observed that where the vendee company expresses its willingness to pay the amount
provided the plaintiff clears his income-tax arrears, there is no complete willingness and such
a conditional willingness is not sufficient to arm the company with the shield provided by
Section 53-A of the T.P Act.
Important case law
Srimant Shamrao Suryavanshi and Anr. v. Prahlad Bhairoba Suryavanshi 15
FACTS: In the present case, the respondents executed an agreement of sale of an agricultural
land in favour of the appellant. The appellants in pursuance of the agreement got the possession
of the property. After the execution of the agreement, the appellant came to know that the
respondent is negotiating for sale with another respondent for which the appellant filed a suit.
The appellant filed for injunction and an injunction order was passed in favour of the appellant,
yet the respondent sold the land through a registered sale deed. The transferee did not bring any
suit within the limitation period for specific relief.
14 AIR 1995 Ker. 249.
15(2002) 3 SCC 676
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ISSUE: Whether the appellant can defend his possession over the land by way of Part
Performance under Transfer of Property Act even after the suit for specific performance for a
contract to sale is barred by limitation?
HELD: Even if the limitation period was over, a person can obtain possession of property in part
performance of a contract to sale; the transferee can defend his possession in case filed by the
transferor. but this can only be done is the transferee can well prove that he has done some act in
furtherance of the agreement or the contract or is willing to perform his part of the act in
furtherance of the contract. This was interpreted so as there was not expressly said that the plea
of part performance cannot be taken once the time limit for filing a suit for specific performance
is expired.
In this case, all the requirements of Part Performance were complied with and the transferee was
able to prove that he was willing to perform his part of the contract which fulfils the essential of
performing some act in furtherance of a contract, either in taken possession or in continued
possession of the property.
The court in this case allowed the appeal as it was not disputed that the appellants were willing to
perform their part of the contract.
The court in this case has rightly applied the doctrine. Here the appellant was able to prove the
willingness to perform his part of the contract which is an important essential. Since, along with
this requirement all other requirements were also proved. Hence, it was the right of the appellant
to have the defence of the doctrine which the court provided.
Some Act in furtherance of contract.- Taking possession is not the only method of partperformance of contract. If the transferee is already in possession of the property then, after the
contract of transfer, he has to do some further act in part-performance of that contract. In order
to attract the provisions of Section 53-A, if the defendant has been in possession of property, he
must have done something more in pursuance of the contract. For example, where transferee
was already in possession of the property, payment of an increased rent under the terms of new
agreement or, part-payment of the price where property is agreed to be sold to a mortgagee in
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The Court held that this act was sufficient enough to protect the mortgagee under Section 53A of
the transfer of property Act, 1882 as there was some act done in furtherance of the contract to
sale which was sufficient enough to put the mortgagee on the protection.
Thus, the court in this case thus, dismissed the petition.
As per the provision, there must be some act done in furtherance of the contract, only then shall
the defence of part performance can be availed. And, in this case, the mortgagee by filing for the
mutation of the documents in his name had done an act, sufficient enough to prove that the act so
done was in furtherance of the contract. Thus, the court by providing him relief of protecting his
right to possession over the property had right done the justice.
Important Case Law
Govindrao Mahadik v. Devi Sahai17
The mortgagee in this case failed to prove that he did any act in furtherance of the contract or
that the mortgagee was willing to perform his part of the contract either of which is an essential
to prove the case in favour.
The Court held that the mortgagee was not entitled to the benefit under Section 53A and that he
could not possess that property.
FACTS: The original Plaintiff 1, Sardar Govendrao Mahadik (Mortgagor), mortgaged a property
to sole defendant Devi Sahai (Mortgagee) at some rate of interest annually. The mortgage was a
mortgage with possession. The mortgagor on Oct. 5, 1945 served a notice to the defendant to
show the full accounts of the mortgage, of which the mortgagee failed to provide. Subsequently,
some negotiations took place between the two and the property was sold to the mortgagee but the
sale deed for the same could never be registered. On the other hand, the mortgagor sold the
property to the Plaintiff 2, Gyarsilal (Subsequent purchaser) via a registered sale deed.
Thereafter, both the plaintiffs filed a suit against the defendant for the redemption of the
property. The mortgagee at that time was already in possession of the property.
ISSUE: Can the mortgagee gain the benefit of Section 53A of the Act?
17AIR 1982 SC 989
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HELD: The Court held that the mortgagee was not entitled to the benefit under Section 53A and
that he could not possess that property. This was due to the fact that the mortgagee could not
prove that he has performed any act or is willing to perform any act in furtherance of the
contract. Since, the mortgagee was already in possession of the property, the mere possession of
the property would render any result to the transferee. He needed to prove something
independent of the mere possession of the property and an act done in furtherance of the
contract, as the court shall not take any the mere act of continuing in possession of the property
as evidence enough to provide the defence to the transferee. The mortgagee could not prove that
he did any act in furtherance of the contract, thus he was held not entitled to possession over the
property.
In this case, the judgment set a good precedent over when the transferee can avail the right over
the property. Mere already in possession of the property is not enough as the person may be in
possession of the property pursuant to any other prior encumbrances. The mere possession of the
property is enough and a strong evidences when the mortgagee or the transferee is for the first
time taking the possession of the property and not when he is already in possession of the
property. Thus, an independent act than a mere possession of property was required to proved in
such case. In the present case, the mortgagee failed to do so and thus the decision of the court to
not to provide him with the defence under Section 53A of the Act was justified.
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18 Ram Chandra v. Maharaj Kumar, AIR 1939 All. 611; Achayya v. Venkata
Subbarao, AIR 1957 AP 854.
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Under the English law, even an oral agreement is sufficient to attract the application of
this doctrine but in India, the contract to which this section applies must be in writing and
signed by the transferor.
Under the English law, this doctrine can be used both as a sword and a shield, i.e. it can
be used for enforcing the right as well as defending the right. However in India, it can be
used only as a shield, i.e. to defend the right of the transferee.
In English law, doctrine of part-performance give rise to an equity but in Indian law, it
gives rise to a statutory right of defence.
Under the English law, the doctrine of part-performance creates a title in the transferee
whereas under the Indian law, it does not create any form of title in the transferee.
This Section does not confer title on the defendant in possession; and he cannot maintain a suit
on title.20 The Supreme Court has approved this principle. Thus it can be concluded that this
section does not create a title in the defendant but merely acts as a bar to the plaintiff in asserting
19 Motilal v. Jaswant Singh, AIR 1964 Raj. 11; Amrao Singh v. Sanatan Dharma
Sabha, AIR 1985 P& H 195.
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his title. It is limited to the cases where the transferee has taken possession, and against whom
the transferor is debarred from enforcing any right, other than that mentioned in the contract.
However, it is only in a case of suit for specific performance that the part performance assists
plaintiff. A transferee who has come into the possession of the property in part performance of a
written agreement can continue in possession, if he is ready and willing of perform his part of
agreement. In such a case, it is not necessary that the transferee should have filed a suit for
specific performance within the limitation period prescribed for a suit for specific performance.
Section saves the right of a transferee for consideration who has no notice of the contract or its
part-performance. The burden for proving that he is a transferee for consideration without notice
is on the transferee. This was so held prior to the enactment of Section 53A.
Important Case law
S. Parvarthamma v. A. Srinivasan22
FACTS: The appellant in this case was the rentholder of the property and thereafter he entered
into an agreement with the landlord for the purchase of the property, thereby becoming a
prospective buyer of the property. Since, he was already living in that property or was in the
possession of that property, the landlord-tenancy relationship superseded to the prospective
buyer-seller relationship where the appellant became the buyer in possession of that property.
But the disputed fact remained of the agreement to sell made between the original landlord and
the tenant. The original landlord in 1983 sold the land to the respondent via a registered sale deed
and transferred their right, title and interest in the property to the respondent including the suit
premises. Thus, in this case, the respondent here became the subsequent transferee and as per the
law under Section 53A of the Act, nothing in the section shall affect the rights of the transferee
for consideration who has no notice of the contract or the part performance thereof. Thus, the
respondent being the subsequent transferee has the right to protect his property rights under the
section.
The respondent in this case claimed himself to be the owner-landlord of a property seeking
eviction of the appellant which the respondent claimed that he is the tenant of the said property,
and got eviction by the Rent Controller and the judgment was upheld by the High Court.
ISSUE: Whether the appellant can exercise the right under Section 53A of the Act?
HELD: The court in this case dismissed the petition on the following grounds:
1
When the appellant filed a suit for injunction, the suit was dismissed in its entirety. Along
with the suit for injunction dismissed but also the alternative suit filed for specific
performance and monetary relief was also dismissed.
Secondly, he could not prove that he was in possession of the property in part
performance of the contract. When a person who is already in possession of the property
enters into a contract to purchase the property, he in order to protect his benefit as the
possessor of that property must show that he has done some act in furtherance of the
contract and that the act must be effective from that day must be consistent with the
contract alleged.
Thirdly, with his suit for specific relief getting dismissed, it could not be said that the he
performed or was willing to perform his part of the contract. This is so as the appellant
had not disowned his character as tenant in the suit premises and that there was no
evidence or findings that the appellant was in possession of the property pursuant to the
contract to sale. Also the appellant did not pursue the matter further.
Fourthly, the respondent who became the subsequent transferee had no notice of contract
of part performance. As stated in Section 53 of the Act, the rights of the transferee are to
be protected and taken care of. In no case can the transferees rights over the property be
affected if he had no prior notice of the contract or the part performance. In this case, the
transferee was a bona fide purchaser and had no notice of the contract to sale of the
property.
Thus, the High Court upheld the decision of the Rent Controller and said that the appellant had
no right over the property. The case was held liable to be dismissed and was dismissed by the
High Court.
As per the law, nothing in the Section 53A of the Act shall affect the rights of the transferee, and
and here the Defendant 2 was the subsequent transferee. Hence his rights should be
safeguarded. It has been said that a subsequent transferee can retain the possession of the
property if:
1
He has done so in bona fide and had no knowledge of the prior contract.
Since, both the above requirements were met, the the Court thus was right in saying that the
appellant had no right over the property and safeguarded the rights of the subsequent transferee.
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Bibliography
BOOKS & STATUTES
Singh Avtar (Dr.), Textbook on The Transfer of Property Act, 3rd ed., Universal Law Publishing
Co., New Delhi, 2013.
Tripathi, G. P. (Dr.), The Transfer of Propert Act, 17th ed., Central Law Publications, Allahabad,
2011.
Mitra B. B., Commentary on Transfer of Property Act, 11th ed., Delhi Law House, Delhi, 2009.
Sinha R. K., The Transfer Of Property ,15th ed., Central Law Agency, Allahabad, 2014.
WEBLINKS
http://www.lawnotes.in/Section_41_of_Transfer_of_Property_Act,_1882
http://lawmirror.com/search/search.php?
q=section+41+transfer+of+property+act.&sel=headnote&page=1
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