In this legal article, we shall delve into the concept of the doctrine of part performance, as enshrined in Section 53A of the Transfer of Property Act, 1882. Our objective is to explore the fundamental principle, purpose, essential components, and the extent of its applicability in legal contexts.
Section 53A of the Transfer of Property Act, 1882 establishes a rule which states that if a party enters into possession of a property based on a contract or continues to remain in possession, and that party is willing to fulfill their obligations under the contract or has taken steps towards its performance, the other party cannot dispossess them from the property. This section operates as a bar or estoppel, preventing the plaintiff from asserting their title and granting the defendant the right to protect their possession.
Principle of the basis:
The doctrine of part performance finds its roots in the principles of equity, justice, and good conscience. It is founded upon the equitable maxim, “Equity looks on that as done which ought to be done.” When one party to a contract performs their obligations under the contract in good faith, relying on the expectation that the other party will also fulfill their part, and if the latter fails to do so, the doctrine of part performance comes into effect to protect the interests of the performing party and safeguard their possession, which was acquired in furtherance of the contract. Another relevant equitable maxim is “ubi jus ibi remedium” (where there is a right, there is a remedy). When a party is ready and willing to perform their contractual obligations, it is evident that they have acquired some interest or right in the property, and therefore, they should have a legal remedy as well. Denying such a remedy would result in a grave injustice.
The doctrine of part performance, as outlined in Section 53A of the Transfer of Property Act, 1882, requires certain essential elements to be present. These include:
- Contract for value or consideration: There must be a valid contract between the parties, involving value or consideration. The contract should be in writing and signed by the transferor, and the terms and conditions necessary for the transfer should be ascertainable from the contract with reasonable certainty.
- Possession of the property: The transferee must have either taken possession of the immovable property or a part thereof, or if already in possession, they must continue to remain in possession in furtherance of the contract.
- Act in furtherance of the contract: The transferee must perform some act that advances the objectives of the contract. This act should demonstrate the intention to fulfill their obligations under the contract.
- Willingness and readiness to perform: The transferee must be willing and ready to perform their part of the contract. This implies their preparedness to fulfill their contractual obligations.
- Real connection between contract and acts: There must be a genuine connection between the contract and the acts performed in furtherance of the contract. These acts should be clearly attributable to the contract itself.
- These essential ingredients collectively establish the applicability of the doctrine of part performance under Section 53A of the Transfer of Property Act, 1882. It is crucial for all these elements to be present to invoke the protections and rights conferred by this doctrine.
Purpose of this doctrine
The inclusion of Section 53A in the Transfer of Property Act, 1882 in 1929 serves the purpose of preventing fraud and ensuring justice. The doctrine of part performance is rooted in principles of equity, justice, and good conscience. Denying a remedy to a party who has fulfilled their contractual obligations in the belief that the other party would do the same would result in a grave injustice. Section 53A operates as a defensive provision, allowing a defendant who has been ejected from an immovable property to use it as a defense to protect their lawful possession, provided all the requirements of the section are met. Therefore, the primary purpose of Section 53A is to act as a shield for the defendant, safeguarding their rights and preventing unfair outcomes.
Position under English law
Under English law, the doctrine of part performance can be applied to oral contracts that fall outside the scope of the Statute of Frauds. In contrast, Section 53A of the Transfer of Property Act, 1882 applies only to contracts documented under the Registration Act, 1908, and the Transfer of Property Act, 1882. In English law, a written contract is not necessary for the doctrine of part performance to be invoked. It is considered an active equity, allowing the person in possession to pursue independent legal action for further proceedings. The doctrine of part performance in English law can be utilized to assert one’s title in the property. On the other hand, under Section 53A, the doctrine of part performance can be employed by the defendant solely as a shield to protect their possession. The defendant cannot use this section as a means to establish their claim or title in the property based on a written agreement. Section 53A grants a statutory right for the preservation of possession, while under English law, it is an equitable right. Unlike English law, Section 53A does not confer a separate right of action.
In summary, Section 53A of the Transfer of Property Act, 1882 partially incorporates the equitable doctrine of part performance from English law.
Before 1929, the doctrine of part performance was not applicable in the Indian subcontinent. However, through the amending Act of 1929, Section 53A was inserted into the Transfer of Property Act, 1882. Since then, under Section 53A, a person has been able to defend their possession under a contract, even if the contract itself is not registered as required by the law. However, with the amendment brought about in 2004 by Act 26 of 2004, which came into effect on 1st July 2005, Section 53A is now applicable only to contracts that are duly registered under Section 17 of the Registration Act, 1908. An unregistered contract will no longer entitle the defendant to invoke Section 53A of the Transfer of Property Act, 1882 to protect their possession.
To rely on this doctrine, the defendant must establish the genuineness and proper registration of the contract. Section 53A is not applicable to oral contracts and does not apply to contracts that are void from the outset (void ab initio).