Doctrine Of Part- Performance Under Transfer Of Property Act 1882 | The National TV

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Doctrine of Part-Performance

 

Introduction-

 

The doctrine of part- performance is an equitable doctrine. It is also known as ‘equity of part-performance. Under this doctrine, if a person has taken possession of an immovable property on the basis of the 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 legal title had not been transferred to him.

 

The doctrine of part-performance is based on the maxim: equity looks on that as done which ought to have been done.

 

Under English Law, the equity of part-performance was developed by the chancery court, against the strict provisions of the statute of frauds, 1677. Chancery court which was the courts of equity held that part-performance by transferees would take their cases out of the statute of frauds. Thus, equity protected the interests of those transferees who held hands on the basis of oral contracts and performed part of the contract.

 

 

In the case of Maddison v. Alderson lord Selbourne explained:

“in a suit founded on such part-performance, the defendant is really charged upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself. If such equities were excluded, the injustice of a kind which the statute cannot be thought to have had in contemplation would follow”.

 

The law contained in Section 53-A of the Act is almost the same as it was laid down by the privy council in Mohammad Musa’s case, which had applied the English equity of part-performance with certain restrictions.

 

 

Law incorporated in Section 53-A is more limited than English equity in 2 respects. 1) in England the equity protects the interest of also such a defendant who has taken possession on the basis of an oral agreement, while in India agreement must be written. 2) in England equity gives also the right of action against the evictor, while Section 53-A just provides it defensively. Thus, we can say that Section 53-A is a partial importation into India of the English Equitable doctrine of part-performance.

 

 

Essential conditions for the application of Section 53-A are:-

  1. There must be a written contract for the transfer of immovable property. This section does not apply to an agreement for the transfer of moveable property.
  2. The transferee takes possession of the property under this contract.
  3. The transferee has either performed his part of the contractor is willing to perform the same.

 

This section does not apply where the transfer is without consideration. Equity says that’ one who seeks equity must do equity’. So, where a person claims the protection of his possession over land under Section 53-A, his own conduct must be equitable and just.

 

 

Nature of transferee’s rights under Section 53-A:-

  1. Section 53-A does not confer any title or interest to the transferee in respect of the property in his possession. The transferee can get the title of the property under the contract of sale only after its registration.
  2. Section 53-A does not give to the transferee any right to the action. It merely provides a right of defense. In India the equity of past performance is passive equity: it can be used only as a shield not as a sword.

 

 

We can say that Section 53-A, is a modified form of English doctrine of part performance. The only major difference would be that Section 53-A is applicable only on a written agreement and section does not give any right of action to the transferee. Thus, it is just a partial importation of English law into Indian Law.

 

 

 

 

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