Doctrine of Part Performance

Section 53A of the Transfer of Property Act of 1882 seeks to protect prospective transferees by allowing them to retain possession of the property against the rights of transferors who, after the execution of an incomplete instrument of transfer, fail to complete it in the manner specified by law, without the transferee's fault.

Doctrine of Part Performance

The doctrine of part-performance was inserted in Section 53A by the Amending Act of 1929. This doctrine, unlike in England, does not merely give rise to equity rather it establishes a statutory right as well. However, this right is limited in two ways compared to English equity.

Firstly, it states that the contract must be in writing and that it is only available as a defense.

Second, the Supreme Court observed that the protection provided by Section 53A only applies to the transferor. It prohibits the transferor from interfering with the possession of the proposed transferee, who has been put in possession under the agreement.

Likewise, the doctrine of part-performance, also known as "equity of part-performance," 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 cannot be evicted from the property because the sale was unregistered and the legal title has not been transferred to him. This doctrine is founded on the principle that equity looks at what is done rather than what should have been done.

Essential Elements of the Doctrine of Part Performance

The essential elements of the doctrine of part performance are −

• A written agreement for the transfer of real estate;

• Consideration is required;

• The agreements shall state the terms of the exchange with reasonable conviction.

• The transferee should have taken possession as a result of this agreement or proceeded to take possession if he was already in possession of the property at the time;

• The transferee must have performed some act to facilitate the agreement; and

• The transferee must have completed or be willing to complete his portion of the arrangement.

The Doctrine of Part Performance - When Applies?

In Vasanthi v. Venugopal case, the Supreme Court emphasized that the following conditions must be followed for the doctrine of partial performance to apply −

• There should be an agreement, appropriately composed and marked, by the transferor or on his behalf to transfer any immovable property for consideration, from which the terms necessary to establish the exchange may be determined with reasonable conviction.

• The transferee must have taken possession of the property or any part of it, or if already in possession, must have proceeded to take possession in part performance of the agreement and must have performed some act in advancement of the agreement.

• The transferee has more than likely performed or is prepared to execute his part of the agreement.

• This doctrine has no bearing on any subsequent transferee's right to consideration without notice.

Exception to Section 53A

This section provides an exception to the rule that the rule laid out in this section has no application to or affects the rights of a subsequent transferee for consideration who has no notice of the contract or of the part-performance thereof. Even so, the doctrine can be invoked against a gratuitous transferee (one who receives no consideration) as well as a transferee for value if he is aware of the contract or its part performance.

Difference between English Law and Indian Law of Part Performance

The doctrine of part performance was borrowed by India from English law, although with several modifications because of the following differences −

• Under English law, the remedy of "part performance" is accessible even if the contract is oral; in India, the contract must be in writing.

• The scope of this doctrine is wider in English law than it is under Indian law. This is because it is both an action and a defense under English law, but it is solely a defense under Indian law.

• Under English law, any conduct in furtherance of the contract is sufficient to use this remedy; however, under Indian law, possession of the asset or any part of it by the transferee is required.

Conclusion

The doctrine of part performance is an equitable theory used to prevent fraud. Fraud in the sense that the non-registration transferor does not take undue advantage of a transferee who has completed a part of his work in good faith. The doctrine is founded on the idea that equity looks at intent rather than form. Intention means the parties' intent to carry out the agreement even if the form, i.e., the agreement, is unregistered

The current doctrine is a shield used by the transferee to defend his interests; it cannot be used as an offensive weapon. The defense here does not imply that the transferee may only use the protection as a defendant; he can also appear in court as a plaintiff. The stated doctrine will apply where a part of the contract is performed and the transferee is willing to complete the remainder of the contract.

In conclusion, 53A clearly says that if a conveyance deed is not registered, it does not go against the transferor if the buyer has performed his part in such a way that a legal transfer by way of registration is left.

Frequently Asked Questions (FAQs)

Q1. Who can use the doctrine of part performance?

Ans. According to Section 53A, the defendant may use the doctrine of part performance as a simple defense to protect his or her possession. This section cannot be used as a weapon by the defendant to prove his or her claim or title to the property in furtherance of a written agreement.

Q2. Is part performance an equitable doctrine?

Ans. Because part performance is an equitable doctrine, it contains an inequitable element. The doctrine evolved as a result of wrong interpretations of the Statute of Frauds and its successors.

Q3. What conditions must be satisfied before the doctrine of part performance can be applied?

Ans. The doctrine of part performance is a critical provision in the Transfer of Property Act. A person must have contracted to transfer immovable property for a consideration, according to statutory provisions. The transfer must be in writing and signed by the transferor or his agent.

Q4. What is the example of the doctrine of part performance?

Ans. A contract to transfer his immovable property to B and give B ownership of the property prior to the completion of a regular sale deed. If A later refuses to execute a regular document of sale and files an eviction complaint against B, the contract is considered to be partly performed.