Doctrine of Part-

Performance
SECTION 53-A
 Section 53A of the Transfer of Property Act
Section 53A of the Transfer of Property Act of 1882 defines part performance, with the primary goal of protecting the transferee from
fraud.
Its goal was to prevent buyer fraud or misbehavior so that he could enjoy his right to property.
This Doctrine is defined by Section 53A of the Transfer of Property Act of 1882, which states:
‘When a transferor or someone acting on his behalf transfers his immovable property for some consideration in a written manner signed
by him to the transferee or someone acting on his behalf on some terms with reasonable certitude.’
And he had used his right of part performance to exercise possession over the property or be in partial use of it in furtherance of such
contract, and he had acted on such contract.
As a result, if the transferor’s rights are not enforced against the transferee because the procedure for transferring property is not
registered or completed properly as required by law, but an agreement was reached, the transferor cannot enforce his rights against the
transferee if the transferee has taken possession or continues to be in possession.
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, taken 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 transferee has
performed or is willing to perform his part of the contract, then, notwithstanding that 1[***] where there is an instrument of transfer, that the
transfer 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 taken or continued in possession, other than a right expressly 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.
The following postulates are sine qua non for basing a claim on Section 53-A of the TPA:
1.There must be a contract to transfer for consideration any immovable property.
2.The contract must be in writing signed by the transferor, or by someone on his behalf.
3.The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
4.The transferee must in part performance of the contract take possession of the property, or, of any part thereof.
5.The transferee must have done some act in furtherance of the contract.
6.The transferee must have performed or be willing to perform his part of the contract.
It is settled law that Section 53-A of the TPA confers no right on a party who was not willing to perform his part of the contract. A
transferee has to prove that he was honestly ready and willing to perform his part under the contract.
Contract for Transfer of Immovable Property
The first prerequisite for applying this section is that there must be a contract and that the contract must be for the transfer of immovable
property for value. The transfer document need not be registered. The contract for transfer must be for consideration, so a gift is beyond
the purview of this provision.
Written Contract
The contract must be written. If the transfer contract is oral, Section 53 “A” does not apply. In addition, the contract must be properly
completed. That is to say, the transferor or someone ( authorized by him) acting on his behalf should sign it. Further, the written contract
on the basis of which the property has been possessed must clearly suggest the transfer of property. If the document is ambiguous and
confusing this section cannot apply.
In Mool Chand Bakhru v. Rohan AIR 2002 SC 812, the Supreme Court held that an express written agreement for the transfer is a sine
qua non (i.e. must/essential) for the applicability of the equitable doctrine of part performance as laid down under Section 53 A of the Act.
Brief facts: the owner of the property alleged to have written letters to the proposed vendee, (having possession of property)
admitting that he agreed to sell half his share for Rs. 15,000 out of which Rs. 10,000 was received by him. In each of these letters,
the vendor asked the vendee to pay the balance amount of Rs 5000 as he was in need of money. Ultimately, the vendor wrote a
letter to the vendee in which he repudiated the so-called agreement to sell saying that the vendee failed to perform his part of the
agreement. However, on the basis of these letters, the vendee claimed the protection of his possession over the property.
The Supreme Court held that the letters could not be treated as an agreement to sell the terms of which have been reduced to
writing. The Supreme Court observed 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.
Agreement to Sell: Where there is an agreement to sell along with the delivery of possession, the agreement holder is entitled to
protect his possession provided he is ready and willing to perform his part of the contract and has taken steps in furtherance thereto.
Possession of the property in furtherance of the contract:
It is essential 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. The party availing the benefit under section 53-A must plead that he has taken possession of
the property in part performance of a contract. The contract or incomplete deed of sale is a contract that would transfer the property.
The transferor has performed his part of the contract by executing it and has otherwise completed it except for registration.
The transferee’s part is to take possession of the property for the transfer of which the contract was executed. So, the transferee
must take possession of the property in part performance of this contract. If the transferee fails to do so, this section is not
applicable.
The transferee must have performed or be willing to perform his part of the contract:
The person who claims protection under section 53-A must act in a just and equitable manner. It is an essential condition for the
applicability of this section that the transferee must be willing to perform his part of the contract. 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.