DOCTRINE OF PART PERFORMANCE

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DOCTRINE OF PART PERFORMANCE[1]

(Ss. 53 A)
QUESTION BANK.
  1. 1. Explain the doctrine of part performance.
SHORT NOTES.
  1. Doctrine of part performance.
 Table of Content
  1. Doctrine of Part performance:- 51
  2. a) The doctrine in England:- 52
  3. b) The doctrine in India before S. 53 (A):- 52
  4. c) Doctrine of part performance under (S. 53-A):- 53
  5. Essentials of (S. 53 (A)) i.e. doctrine of part performance:- 54

(1) Contract to transfer an immovable property for consideration:- 54

(2) Contract should be in writing and ascertainable:- 54

(3) Transfer of possession according to part performance:- 54

(4) Readiness and willingness of transferee:- 54

III. Nature of transferee’s right (under S. 53 A):- 54

1) No title or interest in the property:- 54

2) No right of action:- 54

3) Transferee may be plaintiff or defendant:- 55

4) Who can claim protection and against whom it can be claimed:- 55

5) Right of subsequent transferee for value:- 55

I. Doctrine of Part performance:-

          The doctrine of ‘part performance’ is also known as ‘equity of part performance’. The doctrine is 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, he would not be ejected from the property on the ground that the sale-deed was unregistered and the legal title has not been transferred[2]”.

a) The doctrine in England:-

          The doctrine of ‘part performance’ was evolved by the court of equity in England. The doctrine was evolved to protect innocent purchasers of immovable property for consideration. It protects the innocent purchaser who has performed his part of the contract and is in possession of the property, but the agreement was not written. The doctrine of part performance protects such innocent purchasers from the provision of S. 4 of the Statute of Fraud 1677, which required that all agreements in respect of the transfer of land must be in writing. Thus, the object of the doctrine of part performance was to protect bona fide transferees who had performed their part of the contract by paying the price in full or taking possession of the land. Such transferees could get the title to the property even in the absence of legal formalities of a written agreement or registered instrument.

          The doctrine of part performance was established in England in the case of Middson V. Alderson (1883).

b) The doctrine in India before S. 53 (A):-

          In 1914, the Privy Council in Md. Musa V. Aghore Kumar Gangully[3] Held that the doctrine of part performance was applicable in India on the principles of justice, equity and good conscience.

          However, in Ariff V. Jadunath [4] the Privy Council held that the doctrine of part performance was not applicable in India because it cannot bypass express provisions of the Indian Registration Act, 1908, which requires the document compulsorily to be in writing and registered. In this case, the lease was oral and unregistered; however, the transferee had had possession of the property and had constructed the building thereon. The same principle was applied by the Privy Council in Main Pir Bux V. Sardar Mohd. Tahir in 1929[5].

c) Doctrine of part performance under (S. 53-A):-

          According to (S. 53-A):-

(1) Were any person contracts to transfer:-

          (a) for consideration,

          (b) any immovable property,

          (c) by writing, signed by him or on his behalf,

          (d) from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.

(2) the transferee:-

          (a) has in part performance of the contract, taken possession of the property (or any part thereof), or

          (b) being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract, and

(c) has performed or is willing to perform the remaining part of the contract.

(3) (then, notwithstanding that where there is an instrument of transfer, 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 proceeding of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

(4) However, the section does not affect the right of a transferee for consideration, who has no notice of the contract or its part performance.

          The doctrine of part performance is now an enacted law. It is not an application of the English law of equity in India. The law incorporated in (S. 53-A) is more restrictive than the English concept in two ways; firstly, in England, part performance doctrine protects a defendant who has taken possession on the basis of an oral agreement, whereas S. 53 A requires agreement to be written. Secondly, the right is available as a defence; in other words, in England, the doctrine of part performance can be used both for enforcing the right as well as defending the right.

II. Essentials of (S. 53 (A)), i.e. the doctrine of part performance:-

          The doctrine of part performance requires the following essentials:-

(1) Contract to transfer an immovable property for consideration:-

          For consideration, a contract must be made to transfer an immovable property.

(2) Contract should be in writing and ascertainable:-

          The contract must be in writing, and its terms should be ascertainable with reasonable certainty.

In Gurucharan Singh v. Angrez Kumar

(Laws (SC) 2020-3-75)

Supreme Court observed that the doctrine containing the contract to transfer for consideration any immovable property for the purpose of S. 53 A shall be registered. An unregistered document shall have no valid effect.

(3) Transfer of possession according to part performance:-

          The transferee should have taken possession of the property in part performance of the contract, or if he is already in possession, he should have continued in possession, in part performance of the contract, and should have done some act in furtherance of the contract.

(4) Readiness and willingness of the transferee:-

          The transferee must be ready and willing to perform the remaining part of the contract.

III. Nature of transferee’s right (under S. 53 A):-

1) No title or interest in the property:-

  1. 53 (A) does not confer any title or interest on the transferee in possession of the property. It only protects the right of the transferee to possess the property against eviction.

2) No right of action:-

          The right under S. 53 A can only be used as a defence. It does not give the transferee any right of action other than to defend his eviction. In such a situation, the remedy available to the transferee is to claim the specific performance of an agreement.

3) Transferee may be the plaintiff or defendant:-

  1. 53 A confers on the transferee a right to defend his possession, whether as a defendant or as a plaintiff.

4) Who can claim protection, and against whom it can be claimed:-

          The protection under S. 53 can be claimed by the transferee or by any person claiming under him. The protection can be claimed against the transferor. However, the right cannot be claimed against a third person because there is no privity of contract.

5) Right of a subsequent transferee for value:-

          The proviso to S. 53 A protects the interest of a subsequent transferee for value without notice of the previous transferee’s right of part performance.

          Thus, if the original transferor or any person claiming under him sells the property (already sold to someone under part-performance of contract) to a third person for consideration who has no knowledge of the previous transfer under part-performance, S. 53 A. can restrict it. S. 53 A is not available to the previous transferee against the subsequent transferee for consideration without notice of the previous transaction.

          Thus, if X sells the property to Y through a duly executed and registered sale deed, Y has no knowledge of Z’s right of part performance. S. 53 A shall not apply. Z, a previous transferee, cannot restrict Y from evicting Z and taking possession of the property.

          The fact of the notice can be proved from the possession and willingness of the previous party to get specific performance.

          However, in today’s time, by virtue of S. 17 of the Registration Act, any instrument conveying property worth more than Rs. 100 must be in writing, and it conveys no right if it is not registered.

*****

[1]अंशतः पालन अंशतः करारा प्रमाणे पुर्तता [ भाग पालन का सिद्धांत]

[2] ज्यावेळी एखादया व्यक्तीने विक््रीच्या करारा प्रमाणे एखादया अचल मिळकतीचा ताबा घेतलेला असेल व त्याने स्वतःचा कराराने येनारी जबाबदारी पुर्ण केलेली असेल अथवा पुर्ण करण्यास तयार असेल तर त्यास त्या मिळकतीमधुन खरेदीपत्र नोंदनीकृत नाही म्हणुन मालकी हकक हस्तांतरीत झालेला नाही म्हणुन बेदखल करता येनार नाही.

[यदि किसी व्यक्ति ने बिक्री के करार के आधार पर अचल संपत्ति पर कब्जा कर लिया है और या तो अपने हिस्से का पालन किया है या करार के अपने हिस्से का  पालन  करने को तैयार है। तो उसे इस आधार पर संपत्ति से बेदखल नहीं किया जाएगा कि (1) बिक्री-विलेख अपंजीकृत था (2) कानूनी शीर्षक हस्तांतरण नहीं किया गया है।]

[3] 1914 Cal 801

[4] 1931

[5] It may be noted that the judgments in above noted cases were delivered after insertion of S. 53 A, however, since the cases were went to Privy Council before insertion of the section, earlier law was applied.

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