TRANSFER OF PROPERTY ACT, ACT, 1882
PROJECT REPORT ON SECTION 53-A PART PERFORMANCE
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DEFINITION – SECTION 53-A
1[53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has in part performance of the contract ta!en 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 tran transf sfer eree ee has has perf perfor orme med d or is will willin ing g to perf perfor orm m his his part part of the the cont contra ract ct then then notwithstanding that "[###$ where there is an instrument of transfer transfer that the transfer tr ansfer has not been completed in the manner prescribed therefor by the law for the time being in force the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has ta!en or continued in possession other than a right e%pressly 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.$
SCOPE
Section 53-A can be divided into following five paragraphs:
First, says about the transferor and conditions that concern him. Seco! "! t#ir! talks about the transferee what he should do to get protection of
section 53-A. 2|Page
Fo$rt# para describes the nature of protection that is given by doctrine of part-
performance. Fi%t# para is a proviso protecting bona fide purchaser for value without notice from part performance doctrine. APP&ICA'I&TY
So far as applicability of sec 53-A of the Act is concerned, what is to be seen is that the section provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell to the transferee if the
proposed transferee satisfies other conditions of section 53-A. !hat protection is available, only against the transferor the proposed vendor would disentitle him from disturbing the possession of the proposed transferee who is put in
possession pursuant to such an agreement. "ut that has nothing to do with the ownership of the proposed transferor who remains full owner of the lands till they are legally conveyed by a sale deed to the proposed transferee.
!he following postulates are sine #ua non for basing a claim on sec s ec 53-A of !$A !$A : i. ii. ii.
!he !he con contr trac actt sho shoul uld d hav havee bee been n in in wri writi ting ng sign signed ed by tran transf sfer eror or.. !he !he tran transfe sfere reee shou should ld have have got got pos posses sessio sion n of of the the immo immova vabl blee prop proper erty ty cov covere ered d by
iii. iii. iv. iv.
the contract. !he !he tran transfe sfere reee shou should ld hav havee done done som somee act act in fur furth thera eranc ncee of the the con contr tract act.. !he !he trans transfer feree ee has has eith either er perfo perform rmed ed his his part part of of the the cont contrac ractt or is is will willin ing g to per perfo form rm his part of the contract.
DOCTRINE OF PART PERFORMANCE
%octrine of part performance in an e#uitable doctrine. &t is also known as “equity of part performance.’ performance.’
'nder this doctrine, doctrine, if a person has taken possession possession of an immovable immovable property on the basis of a contract of sale and has either performed or is willing to perform his part of contract then, he would not be e(ected from the property on the ground that the sale was unregistered and legal title has not been transferred to him. For ist"ce,
!here is a contract of sale of a piece of land between A and ". the cotr"ct is i (riti), st"*+e!, "tteste! "! !$ e.ec$te! /$t ot re)istere! / A (#o is t#e seer . ", who is
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the purchaser, has performed or is willing to perform his part of the contract i.e. has paid the price or is willing to pay the same. )n the basis of such contract " takes possession of the land. *ow, A sells the land to + through a registered deed. + having legal title of the land, attempts to e(ect ". protect his possession possession but, e#uity e#uity shall At t#is st")e , since " has no legal title, law may not protect help him from the being dispossessed. !he doctrine of part performance is, therefore, based on the maim: “EQUITY LOOKS ON THAT AS ONE !HI"H OU#HT TO HA$E ONE.%
!hat is to say, e#uity treats the sub(ect matter of a contract as to its effects in the same manner as if the act contemplated in the contract had been fully eecuted, from the moment the agreement has been made, through all the legal formalities e.g. of registration of contract have not been yet completed. EN0&IS &A &A ON PART PERFORMANCE PERFORMANC E
'nder /nglish law, the e#uity of part performance was developed by the C#"cer
Co$rts ")"ist t#e strict +roisios o% t#e St"t$te o% Fr"$!s, 144 . Sectio 6 of this act provided that all agreements agreements in respect of transfer transfer of lands must
be in writing. 'nder this provision, the transfer of immovable property on the basis of
oral agreement was illegal and transferee could not get title in the land. Although the statute was of frauds it was enacted to avoid fraud being played in the transfer of lands on oral agreements but, strict application of this law created great
hardship to such transferee. &n this way, bona fide transferee who performed his part of contract by paying the price in full or in part and who had also taken possession of land could not get title merely because of the absence of legal formalities such transferee were helpless and
were being harassed. E7$it then came to their help. C#"cer co$rts , which were the courts of e#uity, held that +"rt +er%or*"ce +er%or*"ce / s$c# tr"s%erees (o$! t"e t#eir c"ses o$t o% t#e st"t$te o% %r"$!s9 T#$s, e7$it +rotecte! t#e iterest o% t#ose tr"s%erees (#o #e! t#e "!s o t#e /"sis o% or" cotr"cts "! #"! +er%or*e! t#eir +"rt o%
cotr"ct9 Since then, the e#uity of part performance developed further and passed through
several stages for protecting the interests of the transferees who had performed their 4|Page
part in contract in good faith and the transferor attempts to harass them on the ground of technical defect in the contract. !he /nglish e#uity e#uity of part performance performance is well illustrated illustrated in M"!!iso 9 A!ersos0 which is a leading case on this doctrine. &n this case, &or! Se/o$re eplains the doctrine in the following words: '(n a suit founded on such part performance the defendant is really charged upon the e)uities resulting from the acts done in e%ecution of the contract and not *within the meaning of the statute+ upon the contract itself. (f such e)uities were e%cluded in,ustice of a !ind which the statute cannot be thought to have had in contemplation would follow.According to this doctrine, where a person has taken possession of immovable property on the basis of a contract of sale and he has either performed or is willing to perform his part of contract, then he would not be e(ected from the property on the ground that sale was unregistered and legal title has not been transferred to him. SECTION 53 A IS A PARTIA& IMPORTATION OF EN0&IS E:;ITY ON PART PERFORMANCE.
Section 53-A incorporates the doctrine of part performance. !his section was included in transfer of property act by the amending act of 0121. "efore this amendment, there was no enacted law in &ndia on this sub(ect. !he Anglo-&ndian courts used to apply /nglish e#uitable doctrine of part performance to &ndian cases. "ut, the application of /nglish e#uity to &ndian cases was neither certain nor uniform. &n some cases the /nglish law was applied as such i.e. there was total importation of /nglish law of part performance to &ndian cases. &n other cases it was not applied at all. urther, in some cases, the /nglish law of part performance was applied but with some modifications. A brief account of the application of /nglish e#uity of part performance in &ndia before 0121 is given below:
1
(1883) 8 A.C 467.
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PART PERFORMANCE IN INDIA 'EFORE 1<2<
"efore 0121, the application of /nglish e#uity of part performance was neither certain nor uniform. &n some cases it was applied whereas in other cases it was not applied. &n Mo#"**"! *$s" 9 9 ")#ore $*"r )")$i 2 !he privy council held that: /#uity of part performance could be applied to &ndian cases (ust as it was being applied in /nglish. FACTS
&n this case, there was a compromise deed 4rainama6 which was in writing but not
registered. 'nder this deed there was division of certain lands between parties who had taken possession over their respective res pective parts of the land on the basis of the said compromise
deed. !he parties continued possession over their lands for many years. After about forty years, the heirs of the parties repudiated the rainama on the ground that it was not registered.
!he $rivy +ouncil applied the doctrine of /nglish e#uity of part performance as stated in *"!!iso 9 "!erso and held that although the rainama was unregistered but, since it was
in writing, it was a valid document and could not be repudiated. DECISION
!heir lordships of the $rivy +ouncil observed: 'hey do not thin! that there is anything either in the law of (ndia or of /nglish inconsistent with it *the doctrine of part0performance+ but on the contrary that these laws follow the same rule. 'he effect of this decision was to by0pass the provision of the (ndian egistration Act 124 under which it is provided that a document re)uired to be registered under this act but not registered shall not be a valid document of transfer of rights in immovable property property..-
2
(1914) 42 cal. 801; 28 I.C. 930
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"ut, later on in Ari%% 9 ="!$"t# 3, the $rivy +ouncil changed its opinion and held that, !he doctrine of part performance could not be applied in &ndia to override or by-pass the epress provision of &ndian 7egistration 7egistr ation Act, 0189 and !ransfer !ransfer of $roperty Act. FACTS
!he lease was oral it was neither eecuted nor registered. "ut on the basis of this oral agreement the defendant took possession of the land and
also made buildings on that land. After about ten years, the plaintiff refused to grant the lease and sought to evict the
defendant treating him as a tenant on month to month basis. ollowing ohammad usa;s decision of the $rivy +ouncil, the +alcutta
applie applied d the doctrine doctrine of $art-$e $art-$erfo rforma rmance nce and gave its (udgme (udgment nt in favor favor of the
defendant. !he plaintiff then went in appeal to the $rivy +ouncil which reversed the decision of
the +alcutta high court. !he $rivy +ouncil in this case treated ohammad musa;s case as merely an obiter and observed that this was no authority for &ndia. DECISION
!heir !heir lordsh lordships ips held held that that the doctrine doctrine of part part perform performanc ancee could could not be applie applied d agains againstt epr epress ess prov provisi ision onss of statu statuto tory ry laws laws such such as the the !ransfe ransferr of prop proper erty ty Act, Act, and and the the 7egistration, Act. 'nder section 08= of the !$A, a permanent lease could be granted only by a written and registered document an agreement against such enacted law could not be held valid under this doctrine. >iving reasons $rivy +ouncil observed: 'Whether an /nglish e)uitable doctrine should in any case be applied so to modify the effect of an (ndian tatute may well be doubted6 but that as /nglish e)uitable doctrine affecting the provisions of an /nglish tatute *of 7raud+ relating to the right to sue upon a contract should be applied by analogy to such a statute as the PA PA and with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument appears to their lordships in the absence of some binding authority to that effect to be impossible.-
3
A.I.R 1934 P.C. 235.
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&t is significant to note that in this case the $rivy +ouncil did not apply the /nglish e#uity of part performance mainly on two grounds: 0. !he agreem agreement ent for for lease lease was oral, oral, and and 2. !his !his was in epress epress violati violation on of the provisio provisions ns of statutor statutory y law namely namely, sec 08=, 08=, of the !$A. After After this this case the net case which which came before the $rivy +ounci +ouncill was Mi" Pir '$. 9 S"r!"r Mo##"*"! T"#ir9 "#ir9 6
&n this case to defendant defendant had taken possession possession over a land on the basis of an oral agreement agreement for sale. )n being evicted by the plaintiff he took the defense of part performance. !he $rivy +ounci +ouncil, l, while while re(ecti re(ecting ng his plea plea held held that that /nglish /nglish e#uity e#uity of part part perfor performan mance ce was not available in &ndia against epresses statutory provisions regarding registration contained in the 7egistration Act, and the !ransfer of $roperty Act. rom the above mentioned discussions discussions it is clear that the Anglo &ndian courts and the $rivy +ouncil were in favor of this e#uity in &ndia with some modifications. Application of /nglish e#uity in &ndia was therefore, neither uniform nor certain. &t was, necessary to enact law on this sub(ect. Accordingly, section 53-A was included in the transfer of property Act by the Amending Act of 0121. SPECIA& COMMITTEE ON PART PERFORMANCE
0. Since Since there was a differe difference nce of opinion opinion on #uestion #uestion of the applicat application ion of /nglish /nglish e#uitable doctrine of part performance in various courts of &ndia, the >ovt. of &ndia resolved to set up a special committee for making recommendations on - whether the "ritish e#uitable doctrine of part performance be etended in &ndia Also. !he special comm commit itte teee was was of the the view view that that an illi illite terat ratee or igno ignora rant nt buye buyerr who who had had partl partly y performed his part of the contract re#uired statutory protection. urther that where a transferee in good faith avails that lawful instrument, i.e., a written contract would be eecuted by the transferor, takes possession over the property, the e#uity demanded that that the the tran transf sfer eree ee shou should ld not not be trea treate ted d as tres trespa pass sser er by the the tran transf sfer eror or and and subse#uently evict him through process of law in the absence of lawful transfer instrument. 2. !he special special committe committeee also consid considered ered the #uestio #uestion n whethe whetherr protec protectio tion n under under the proposed section 53-A to a transferee would also be available even if the period of 4
AIR 1934 P.C.235
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limitation for bringing an action for specific performance of an agreement to sell has epired. )n the said #uestion, the committee was of the view that even after epiry of period of limitation, the relationship between the transfe ror and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is re#uired to be protected even if the period of limitation for bringing an action for specific performance has epired. !he court are of the view that &f the conditions enumerated in section 53-A are complied with , the law of limitation does not come in the way of a defendant taking plea under section 53-A. !he recommendation of the special committee was accepted by the govt. of &ndia as the same is well reflected in the aims and ob(ects of amending act, 0121 whereby section 53-A was inserted in the Act. &E0A& EFFETS OF TE AMENDIN0 ACT IN SECTION 53-A
&n P"r" %o$rt# o% sectio 53-A o% TPA , the words ?the contract though re#uired to be registered, has not been registered@ has now been omitted. !his may mean mean to suggest that non registration of any contract to transfer for consideration is not any relevant factor 4i.e. not necessary6 for the application of part performance under this section and, the defense of part-performance part-perf ormance is available a vailable also on the basis of unregistered document.
"ut, this is not the case. !he same amending act has si*$t"eo$s "*e!e! sectio 1 "! sectio 6< o% t#e re)istr"tio "ct9 !herefore, the amendment in section 53-A should be
read together with amendments in section 0= and section 1 of the registration act.
I sectio 1 of the registration act, a new clause has been inserted 40=-A6, which
provides that written documents of the transfer of an immovable property with consideration 4e.g. sale6 must be registered for the purpose of sec 53A of !$A, and, if such documents documents are not registered registered then, they shall have no effect effect for the purposes of section 53-A of the !.$.A. !hus an obvious meaning of these amended provisions of section 53-A of !$A and section 0=-A of registration Act is that:
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Section 53-A shall not be applicable and the defense of part performance cannot be available on the basis of un-registered documents which are eecuted on or after 2-81-2880, !herefore the contract of the transfer of immovable property with consideration as provided in section 53-A is now compulsorily registrable document.
Also, t#e +roiso o% sectio 6< of the registration registration act, which deals with the effect of non registration documents, re#uired to be registered. !he word, ?as evidence of part performance of a contract for the purpose of section 53-A of the !$A@ !$A@ has been omitte omitted d by the amendi amending ng Act. Accordin Accordingly gly,, the +reset +roiso o% sec 6< of the registration act is: 'provided 8. an unregistered document affecting immovable property and re)uired to be registered under the registration Act or the PA may receive as evidence of the part performance or of any collateral transaction not re)uired re)uired to be affected by registrated instrument.-
!his proviso of section 1 of the registration Act may be interpreted to mean that an unregistered document 4e.g. written agreement for sale6 has an evidentiary value in the eyes of courts for the purposes of proving any Bcollateral transaction;. Such collateral or related transact transaction ion means means Bnatur Bnaturee of the possess possession ion;; 4i.e. whethe whetherr the possess possession ion is actual actual or constructiveC6 thus although an un-registered document has no value in the court for the purpose of 53-A 4a substantive right to defend possession6 but the courts may accept the evidence of factual position of the possession of the property in #uestion. &n a nutshell, the amendments of section 0= and section 1 of the registration act has now incorporate incorporatess the law which fulfils the real purpose purpose of amending amending section 53-A of the transfer transfer of property Act. Act. !he ob(ect or the real purpose of these amendments amendments is that there should not be any perpetual possession of an immovable property evading evading law of registration.
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ESSENTIA& CONDITIONS FOR APP&ICATION OF SECTION 53-A
Analysis of the provisions of section 53-A makes it clear that following essential conditions are necessary for its application: 0. !here is a contrac contractt for the the transfer transfer of of immovab immovable le property property.. 2. !he transferee transferee takes possessi possession on of the the property property under under this this contract. contract. 3. !he transf transferee eree has either either perform performed ed his part of contrac contractt or is willing willing to perform perform the same. Dhen the above mentioned conditions are fulfilled, the transferee can defend his continuance of possession over property. !he above mentioned essentials are discussed in detail below. below. CONTRACT FOR TRANSFER OF IMMO>A'&E PROPERTY
or the application of this section, the first condition is that there must be a contract for the transfer of immovable property for value. RITTEN CONTRACT
!he contract must be written. Section Secti on 53-A is not applicable if the contract for transfer is oral. !here seems to be two reasons for this limitation: 0. !he occasion occasion for the the doctrine doctrine arises in &ndia &ndia with reference reference to documen documents ts inadmissible inadmissible in evidence for want of registration and 2. !he risk of per(uries per(uries if an an oral contract contract could could be be set up as a defense defense after after limitation limitation for for a suit for specific performance had epired. &n &e+ros *issio 9 N9>9>9 s"t""r""" Re!! ,5 there was neither any written contract of the transfer of immovable property nor was any evidence on which date the property was delivered to transferee. !he Andhra $radesh <+ held that, the transferee;s possession was not valid under the law and section 53-A is not applicable. Driting alone is not sufficient. !he contract must also be !$ e.ec$te!. !hat is to say, it should be signed by the transferor or by any other person on his behalf. !he person who signs on his behalf must be a person who is authoried by him to sign the document. !herefore, it is necessary that the contract is either actually signed by the transferor or is signed by a person who has been specifically been authoried to sign on behalf of the transferor and whose signature can bind the transferor. 5
AIR 1998 A.P. 285.
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urther, urther, the written contract contract on the basis of which the property has been possessed, *$st ce"r s$))est t#e tr"s%er o% +ro+ert9 +ro+ert9 &f the document is ambiguous or confusing, this
section cannot be made applicable. &t is one of the necessary ingredients of section 53-A that the terms of the written contract must be ascertainable ascertainable with reasonable reasonable certainty. certainty. A contract the terms of which cannot be ascertained with reasonable certainty cannot be enforced. !he emphasis on the word Breasonable certainty; presupposes that the court should be in a position to (udge the eact nature of the transaction i.e. the sub(ect matter of the document. !his is the foundational basis for s 53-A and in the absence of a document or a secondary evidence from which the court can ascertain the terms of that document with reasonable certainty, the defendants are not entitled to the benefit of the doctrine of part performance. &n Moo C#"! '"#r$ 9 Ro#" E the S+ held that an epress written agreement for the transfer is Sine #ua non for the applicability of the e#uitable doctrine of part performance as laid down in section 53-A of the act. FACTS
!he owner of the property 4vendor6 alleged to have written letters to the proposed vendee, 4having possession of the property6 admitting that he had agreed to sell his half share of the property for a sum or 7s. 05,888 out of which 7s. 08,888 was
received by him. &n each of these letters the vendee was asked to pay the balance amt. 7s. 5888 as he
was in need of money. money. "ut the vendee failed to do so. 'ltimately the vendee wrote a letter to the vendee in which he repudiated the so called
agreement to sell saying that vendee has failed to perform his part of the agreement.
!he Supreme +ourt held that the letters written by the vendor cannot be treated as an agreement to sell the terms of which have been reduced to writing. !he S+ observed further that at the most it is an admission, of an oral agreement to sell and not a written agreement, accordingly, the proposed vendee could not protect his possession of the immovable property under section 53-A.
6
AIR 2002 SC 812
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"esides being an epress agreement for sale, the agreement must also be perfect and genuine in all respect. or eample, the signature of the eecutants must also be fully established to be authentic. TRANFER FOR CONSIDERATION
!he written contract must be for the transfer of an immovable property for consideration. Section 53-A is applicable where the contract is for sale or for the lease. !he section is applicable also to usufructuary mortgages or mortgages with possession. "ut this section does not apply where the transfer is without consideration. !herefore, it is in applicable to gifts. An agreement without consideration being void under section 23 of the contract act, it cannot become a source of protection of possession under the section. &t may be noted that section 53-A is applicable only where the contract for the transfer is valid in all respects. &t must be an agreement enforceable at law under the &ndian contract act, 09=2. !he contract on the basis of which the transferee takes possession over the land must also be a complete and valid document of transfer. &t must be in writing, signed, attested and duly stamped, the contract must be complete in all respects including registration. POSSESSION IN F;TERANCE OF CONTRACT
!he second essential re#uirement is that the transferee has taken possession or continues possession in part performance of the contract or, has done some act in furtherance of the contract. &t is necessary that the transferee has taken possession of the immovable property on the basis of the contract or incomplete incomplete deed of transfer.
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!he transferee need not be in possession possession of the whole property property mentioned in the contract contract of sale. &f the transferee takes possession or continues his possession even on a part of that property, property, it is sufficient to give him the benefit of this section. Dhen the transferee is already in possession of the property in some other capacity and the other essential essential re#uirement re#uirementss of this section are fulfilled then, this section section shall entitle him to continue that possession. auhati <+, held that for a tenant continuing in possession of an immovable property after a valid contract of transfer, it is necessary for him to show that he continues in possession in pursuance of that contract of transfer. Dithout this, he cannot get the benefit of this section. &n Roo+ si)# 9 r"* si)# ,= the S+ held that once it is admitted by implication that plaintiff came into possession of land lawfully and continued to remain &n possession till the date of suit, the plea of adverse possession and retaining possession by operation of section 53-A are inconsistence with each other. other. SOME ACT IN F;TERANCE OF CONTRACT
!aking possession is not the only method of part performance of contract. &n order to attract the provision of section 53-A, if the defendant has been in possession of the property he must have have done done someth something ing more in pursua pursuance nce of the contract contract.. For e)9 Dhere transferee was already &n possession of the property, payment of an increased rent under the terms of new agreement or, part payment of price where the property is agreed to be sold to a mortgagee in possession, is a Bfurther act; in part performance of the agreement. &t is also necessary that the act done is only in furtherance of a pre-eisting valid contract. !here must be direct co- relation between the cont. and the act done, in its furtherance. Anything done anterior to the cont. or merely incidental to the terms of the contract shall not be regarded as an act in furtherance of the contract of sale. &n D9S M"r"t#"**" 9 A9 Srii"s" ,9 a tenant claimed himself to be in possession of the house in part performance of mutual agreement between the parties. !he suit for specific 7 8
AIR 2000 SC 1485 AIR 2003 SC 3542
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performance was, however dismissed. !he tenant could not prove, on record, that he was ready and willing to perform his part of agreement. oreover, he was also not shown to have delivery of possession of property in part performance. !he S+ held that on the basis of these facts, the doctrine doctrine of part performance performance could not be applicable applicable and his 4tenant;s6 4tenant;s6 possession possession could not be protected under section 53-A. TRANSFEREE IS I&&IN0 TO PERFORM IS PART OF CONTRACT
Section 53-A is based on the principles of e#uity. /#uity says that one who seeks e#uity must do e#uity. !herefore, where a person claims protection of his possession over a land under section 53-A his conduct must be e#uitable and (ust. &t is an essential condition for the applicability of this section that the transferee must be willing to perform his part of the contract. /#uity of part performance which is incorporated in this section cannot favor a transferee who is not ready and willing to do what is re#uired for him. Accordingly, a vendee who has taken possession possession of the property property cannot protect his possession under under this section section if he is not willing to pay the price agreed upon. Dillingness to perform the part ascribed to a party must not be conditional. &n J"co/ +ri"te t!9 >9 >9 T#o*"s J"co/ ,1 the Ferala <+ held that such willingness in the contet of section 53-
A of the !$A must be absolute and unconditional. &f the willingness is studded with a condition, condition, it is in fact no more than an offer and cannot be termed as willingness. willingness. !he court observed that where a vendee company epresses its willingness to pay the amount provided the plaint plaintiff iff clears clears his income income-ta -ta arrears, arrears, there there is no comple complete te willin willingne gness ss and such such a conditional willingness is not sufficient to arm the company with the shield provided by section 53-A of the !$A. &t is not necessary that the transferee should plead his Bwillingness; in each and every case. Such willingness may Bbe inferred from his conduct.; &n (udging willingness to performance, the court must consider the obligations of the parties and the se#uence in which they were to be performed.08 &n Te=" Si)# 9 r"* Pr""s# T"("r ,00 the transferee was already in possession of the property under an agreement to sale. !he !he transferor accepted the payment of installments by transferee which was delayed as agreed, but the transferee was willing to 9
AIR1995 ker.249 Mulla; ra!"#er $# Pr$%er&' Ac& *. +I%.281 11 A.I.R. 1984 P,-.95 10
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perform his part of the contract by making payment of the remaining installments. !he $G< <+ held that the benefit under section 53-A cannot be denied to the transferee. !he doctrine of readiness and willingness is an emphatic way of epression to establish that the transferee always abide by the terms of the agreement and is willing to perform his part of the contrac contract. t. $art $art perfor performan mance, ce, as a statuto statutory ry right, right, is condit condition ioned ed upon upon the transfer transferee; ee;ss continuous willingness to perform his part of the contract in terms covenanted there under. NAT;RE OF TRANSFEREE?S RI0T ;NDER SECTION 53-A "9 NO TIT& TIT&E E OR INTE INTERES REST T IN PROPER PROPERTY TY
Section 53-A does not confer any title or interest to the transferee in respect of the property in his possession. !his section provides that when the conditions laid down in it are fulfilled, the transferor or any other person cannot evict the transferee. &n the event of being evicted he can raise the defense of e#uity of part- performance. And section 53-A would protect his right to continue the possession. /cept the right to continue his possession, no other interest or title is created in favor of the transferee. !his section therefore imposes a statutory bar on the transferor 4i.e. he cannot dispossess transferee6 but does not confer any title on the transferee. !he transferee can get the title of the property under the contract of sale only after its registration. Section 53-A entitles the transferee merely to protect his possession. So, this section does not defeat the provisions of the registration act. Section 53-A does not affect the ownership rights of the proposed transferor who remains full owner of the lands till they are legally conveyed conveyed by sale deed to the transferee, he continues continues to be the owner of lands for all proposes. /9 PASSI>E ASSI>E E:;ITY E:;ITY@@ NO RI0T RI0T OF ACTION ACTION
Section 53-A does not give transferee any right of action. &t provides merely a right of defense. !hat is to say where a transferee takes possession of an immovable property, he can raise the defense of part performance performance in case he is evicted by transferor or any other person.
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&n &ndia the e#uity of part performance is a passive e#uity: it can o /e $se! o "s " s#ie! ot "s " s(or!9 !he scope of this section is limited because no right of action is
available to transferee. PRA'OD ;MAR DAS >9 DANTAMARA TEA Co9 &t!902
&t is a leading case dealing with the nature of rights of transferee under Section 53-A. the facts and the law laid down are given below: FACTS
>illanders Gco. agreed to sell a tea estate to one S.*. 7oy. !he agreement was not registered. "ut, S.*.7oy paid the first installment of the consideration and took possession. Hater on the >illanders G co. sold the tea estate to %antamara !ea G +o. through a registered sale deed on the ground ground that S.* 7oy failed failed to give give the remain remaining ing instal instalmen ments ts of the consid considerat eration ion.. %antamara co. as owner of the tea estate 4but without possession6, obtained also the eport license. Subse#uently $rabodh Fumar %as ac#uired rights under the contract of sale from S.*. 7oy and ac#uired also the possession of the tea estate. !hus $robodh Fumar %as had now he same position as that of S.*. 7oy. 7oy. $rabodh Fumar %as filed a suit for declaration that the %antamara +o. was not the owner of the estate and that this co. had no right to ell tea under the eport Ilicense given to it.
!he $rivy +ouncil held that in &ndia the e#uity of part performance as incorporated in section 53-A of !$A was not an active e#uity. &t does not give any right of action to the transferee who is in possession of property under an unregistered contract of sale. !he right conferred under section 53-A is a right available only to a defendant to protect his possession. !he in(unction was therefore, not granted and the appeal was dismissed. Accordingly, the established principle of law is that in &ndia the e#uity of part performance can be used only as shield and not as sword. RI0TS OF S;'SE:;ENT TRANSFEREE FOR >A&;E9
!he proviso to this section protects the interests of a subse#uent transferee for value without notice of previous transferee;s rights of part performance. !herefore, this section does not 12
AIR 1940 P.C.I.
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affect the rights of the transferee for consideration who has no notice of the contract of sale or of part performance. For e)9 A who is the owner of a land contracts to sell it to ". !he contract is unregistered and
in part performance of this contract " takes possession of the said land. 'nder this section, the transferor or any other person cannot dispossess " from the land. "ut, if A sells the land to + through duly eecuted and registered sale deed and + has not the least knowledge of ";s right of part performance then, section 53-A shall not apply. And " cannot resist + from evicting " and taking possession of the land. !hus, any rights which the transferee under this section may have against the transferor would not be of any avail against a bona fide transferee for value having no notice of the transaction. !he burden of proving that the subse#uent transferee had no notice lies on the person claiming the benefit of part-performance.
DIFFERENCE 'ETEEN EN0&IS AND INDIAN &A
Section 53-A incorporates the provisions of /nglish e#uitable doctrine of part performance. "ut this section is not total importation of /nglish law. &t is modified form of /nglish law the
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importation is therefore partial. &ndian law of part performance may be distinguished from the /nglish law as under. under. a. 'nder /nglish /nglish law, law, the doctrine doctrine of of part-perform part-performance ance is applicab applicable le to written written as well well as oral agreements whereas, section 53-A is applicable only where the agreement of transfer is written. b. &n /ngland, the e#uity of part performance is active as well as passive. !hat is to say, under /nglish law, the transferee is entitled to defend his possession and is also entitle to enforce his right in an independent suit, e.g. a suit for specific performance or, for an in(unction to restrain dispossession. &n &ndia, section 53-A does not give any right of action to the transferee. $art performance is only passive here. c. &n /ngland /ngland the the e#uity gives gives also the the right right of action action against the the evictor evictor but section section 53A gives no such right. !hus the rule of part performance which is administered in /ngland as e#uity is now a statutory law in &ndia but with suitable changes. Accordingly, it has rightly been said that section 53-A is a partial importation into &ndia of the /nglish /#uitable %octrine of part performance.
.
'I'&IO0RAPY
M$", BT#e Tr"s%er O% Pro+ert Act, 1882, < t# E!9, &e.is Ne.is, N")+$r
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At"r Si)#, BT#e Tr"s% Tr"s%er er o% Pro+er Pro+ert t Act, ;iers" ;iers" "( +$/is#i) +$/is#i) co9
+t9t!9, A"#"/"!,24 A"#"/"!,24 t# Dr9 09P9Tri+"t#, BT#e Tr"s%er o% Pro+ert Act, Cetr" &"( P$/ic"tios, 11 e!, A"#"/"!9 Dr9 Dr9 R99Si#", BT#e Tr"s%er o% Pro+ert Pro+ert Act, cetr" &"( A)ec A"#"/"!, 16t# e!9 Dr9 Dr9 Poo"* Poo"* Pr"!# Pr"!#" " Se.e" Se.e",, BPro+e BPro+ert rt &"(, &"(, B&e.is B&e.is Ne.is Ne.is '$t '$tte ter(o r(ort rt#s #s "!#(", N")+$r, 2 ! ED!9
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