PART PERFORMANCE (SECTION 53-A) Flashcards
Part-Performance (Section 53A)
The doctrine of part-performance also known as “equity of part-performance” says that if a person has taken possession of an immovable property on the basis of a contract of sale and has either performed or is willing to perform his part of the contract, then,
he would not be ejected from the property on the ground that the sale was unregistered
and the legal title has not been transferred to him.
Essential Requirements of section 53A
(1) There must be a contract to transfer an immovable property for consideration.
(2) The contract should be in writing and its terms can be ascertained with reasonable certainty.
(3) The transferee should have taken the possession of the property in part- performance of the contract or if he is already in possession, should have continued in possession in part-performance of the contract, and should have done something in
furtherance of the contract.
(4) The transferee is ready and willing to perform his part of the contract.
(1) Contract to transfer an immovable property for consideration
The first requirement of this section is that there must be a contract to transfer an immovable property and the contract must be in writing. It must be signed by person or his agent on his behalf whom it is sought to bind. The transferee under oral agreement
cannot take benefit of this section. However, all the terms of previous oral agreement reduced in writing can be used for the purpose of section 53A.
The protection given under section 53A is available only in those cases where the transfer of property is made in pursuance of a contract. Partition is not a transfer of property, therefor, protection of section 53A will not be available.
The transfer of property must be for consideration. Where transfer is without consideration, this doctrine will not be applicable. For example, gift is a transfer without consideration, therefore, this section will not come in for protection of such cases.
(2) Contract in Writing and Ascertainable with Reasonable Certainty
The second requirement is that the contract must be in writing and such that the terms of the contract can be ascertained with reasonable certainty.
The contract must have also been signed by the person claiming to recover possession or on his behalf.
The plaintiff must have himself signed the contract or it must be signed by any person who has been specifically authorized on his behalf to sign.
(3) Part-performance of Contract by Transferee, Transfer of Possession or Continuance
in Possession
The third requirement of this section is that the transferee either must have taken the possession of the property after the contract is made or if he is already in possession of the property, he must have continued in possession. It is necessary that the
possession taken or continued must have been in pursuance of contract. If the transferee has not taken possession of the property, this section will not be
applicable.
(4) Readiness or Willingness of Transferee
The principle of equity is that “he who seeks equity must do equity”. Therefore, the transferee who wants to take benefit of this section must also do his part of the contract. He must be willing and ready to perform his part under the contract.
The term “willingness” as used in the section implies “readiness and willingness” as used in section 16 of the Specific Relief Act, 1963.
A purchaser, who has already taken possession of the property, cannot protect his possession under this section if he is not willing to pay the price of the property. The doctrine of part performance does not
mean that the vendee is absolved of his other obligations under the contract.
The doctrine only protects the possession of the vendee. It requires that apart from retaining his possession, the vendee should show his readiness and willingness to fulfil his obligation under the contract.
[s 53A.7] Exception
The proviso to the section contains an exception in favour of a transferee for consideration who has no notice of the contract or of part-performance thereof.
This means that the transferee for consideration having no notice of the contract or its performance is not affected by this rule. Any right which the transferee may have against the transferor under this section would not be of any avail against a bona fide
transferee for value having no notice of the transaction.
The Supreme Court has held that the right under section 53A is not defeated by the fact that the suit to seek specific performance of the agreement of sale has become time-barred, or that the plea of acquisition of title by adverse possession has been negatived which rendered the possession to be illegal.
[s 53A.8] Instrument of Transfer (Unregistered Instrument)
This means that this section comes into effect even if the instrument of transfer has not been completed in the manner prescribed therefor by the law for the time being in force, like the Registration Act, which prescribes for registration of instruments of transfer.
But it is necessary that the instrument of transfer must be signed by like a document of transfer.
[s 53A.10.1] No Title or Interest in the Property
Section 53A does not confer any title or interest on the transferee in the property in his possession. It only says that where the conditions of this section are fulfilled, the right of the transferee in respect of the property in possession will be protected.
The transferor or anyone claiming under him will not be able to evict him from the property because he can raise the plea of part-performance and this section will come for his protection.
[s 53A.10.2] No Right of Action
Section 53A is a statutory right which can be used to defend possession of transferee and can be used only as a defense.
It does not give any right of action to the transferee. The transferee can only defend his eviction in case he fulfils the conditions of this section.
Transferee should be in actual possession when his rights are being considered under this section.
In India, the equity of part-performance is passive
equity, it can be used only as a shield and not as a sword.
s 53A.10.6] Sale of Mortgaged Property to Mortgagee
When a mortgagor/vendee agreed to sell the mortgaged property to the mortgagee/putative vendee in possession, the mortgagee’s status was subsumed or merged in his rights as a putative vendee under section 53A against the transferor, provided of course the pre-conditions for the application of section 53A were fulfilled.
Given the mandatory language of section 53A, the court said that it must be held that in such a situation the equity of redemption in the mortgagor/vendee was lost to the extent that the mortgagor could not reclaim possession of the mortgaged property. To hold to the contrary, would not only defeat the mandate of section 53A but would result in an
anomalous situation.
An owner who may not have mortgaged his property cannot be in a worse position vis-a-vis the vendee than an owner who may have mortgaged the subject-matter of sale to the vendee. The only right left with the owner in both cases is to sue for completion of the contract.
Section 53A incorporates three principles of equity—
(i) He who seeks equity must do equity.
(ii) Equity looks to the intent rather than to the form.
(iii) Equity treats that as done which ought to have been done.
Difference between English Law and Indian Law
Section 53A has only partially incorporated the English doctrine of Part-performance.
The points of difference between the two are discussed below:—
(1) Under 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.
(2) Under English law, this doctrine can be used both as a sword and a shield, i.e., it can be used both 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.
(3) In English law, doctrine of part-performance gives rise to an equity but in Indian law, it gives rise to a statutory right of defence.
Instrument of Transfer (Unregistered Instrument)
The section says that notwithstanding that the instrument of transfer has not been completed in the manner provided by law for the time being in force the transferor is debarred from enforcing any right in respect of such property against the transferee.
This means that this section comes into effect even if the instrument of transfer has not been completed in the manner prescribed therefor by the law for the time being in force, like the Registration Act, which prescribes for registration of instruments of transfer.
But it is necessary that the instrument of transfer must be signed by like a document of transfer.
