PROJECT ON

Doctrine of Part Performance

Submitted by:

Ahmed Hamza
B.A.LLB (H) Self Financed
IIIrd Semester
Roll No. 05
Student ID:201909662

Jamia Millia Islamia, New Delhi.

Under the guidance of

Dr. Qazi Mohammad Usman
Associate Professor, Faculty of law
Jamia Millia Islamia
New Delhi.

4
 Content
S.No Topic Page No.
1. Introduction 6
1.1 Doctrine of Part Performance 6
2. Part Performance 7
3. Essential Conditions for the applications of Section 53 A 7
4. Scope of Section 53 A 11
5. Limitations Scope of Section 53 A 11
5.1 Available only as a difference 11
5.2 Transfer and Agreement Covered by this Section 13
5.3 Right Expressly Provided by the Contract 13
5.4 Provision: Transferee for Consideration without Notice 13
5.5 When is Doctrine of Part Performance Not Available 13
6. Conclusion 14
7. Bibliography 16

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 1.INTRODUCTION
Property is one of the most fundamental elements of the socio-economic life of an individual.
Juridically, property can be said to be a bundle of rights in a thing or a land. However, the
word has gradually been given a wider meaning. Economic significance of the property,
therefore, rests more on its dispositions. Property law has therefore become an important
branch of civil law. The Transfer of Property Act, 1882 deals with the transfer of immoveable
property inter-vivos (although some provisions deal with the transfer of moveable as well as
immovable property).
Before this enactment, the transfers of immovable property were mostly governed by English
equitable principles as applies by Anglo-Indian Courts. The ‘doctrine of part-performance’ is
one of the equitable doctrines applied by these Courts.
1.1 DOCTRINE OF PART PERFORMANCE
Doctrine of part performance is an equitable doctrine. It is also known as ‘equity of part-
performance’. In law of contracts (for e.g., a contract for sale), no rights pass to another till
the sale is complete. But if a person after entering into a contract performs his part or does
any act in furtherance of the contract, he is entitled to reimbursement or performance in case
the other party drags its feet. This doctrine is based on this part performance of contract. If a
person has taken possession of an immovable property on the basis of contract of sale and has
either performed or, is willing to perform his part of contract then, he would not be ejected
from the property on the ground that the sale was unregistered and the legal title had not been
transferred to him.

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 2. PART – PERFORMANCE
Section 53A of the Transfer of Property Act provides that “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 therefore by the law for the time being in
force, the transferor or any other 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 the rights
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 Section has been described by the Privy Council 2, and by the Supreme Court3, as partial
importation of the English of doctrine of part performance. By virtue of this Section part
performance does not give rise to equity, as in England, but to a statutory right. 4
2.1 ESSENTIAL CONDITIONS FOR THE APPLICATION OF SECTION 53-A
Analysis of the provisions of Section 53A makes it clear that following essential conditions
are necessary for its application:
a) There is a contract for the transfer of an immovable property. The contract must be
written and it must be for the transfer of an immovable property for consideration.
Also, the contract must be valid in all respects.

1
The words ‘the contract, though required to be registered, has not been registered or’ has been omitted by
Section 10 of the Registration and Other Related Laws Amendment Act 2001 (Act no. 48 of 2001) with effect
from 24 September, 2001.
2
Mian Pir Bux v. Sardar Mahomed Tahar, AIR 1934 PC 235; AMA Sultan and Ors. v. Seydu Zohra Beevi, AIR
1990 Ker 186.
3
Maneklal Manuskhbahi v. Honnusji Jamshedji, AIR 1950 SC 1; Chaliagulla Ramchandrayya v. Boppana
Satyanarayana, AIR 1964 SC 877; See also Nathu Lal v. Phoolchand, [1970] 2 SCR 854; Sardar Govindrao
Mahadik & anr. v. Devi Sahai and ors., AIR 1982 SC 989.
4
Amrao v. Baburao, (1950) ILR Nag 25. See Hamida v. Smt Humer and ors. AIR 1992 All 346.

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 b) The second essential is that the transferee has taken the possession of the property or
continues possession in part-performance of the contract or, has done some act in the
furtherance of the contract.
c) When a person claims protection of his possession over a land under Section 53A, his
own conduct must be equitable and just. That is the transferee has either performed
his part of contract or is willing to perform the same.
When the above mentioned conditions are fulfilled, the transferee can defend his continuance
of possession over the property. In other words, if these requirements are fulfilled, the
transferee is entitled to claim, under this Section, that he should not be dispossessed or
evicted from the property.

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 3. COMPARISON OF 53 – A WITH ENGLISH DOCTRINE OF PART
PERFORMANCE

Under English law, the equity of part – performance was developed by the Chancery Courts
against the strict provisions of the Statute of Frauds, 1677. Sec – 4 of this Act provided that
all agreements in respect of transfer of lands must be in writing. The transfer of immovable
property on the basis of oral agreement was illegal and the transferee couldn’t get title in the
land. Strict application of this law created great hardships and a bona fide transferee who
performed his part of contract of by paying the price in full or in part and who had also taken
possession of land couldn’t get title merely because of the absence of the legal formalities.
Such transferees were helpless and were being harassed. Equity then came to their help.
Chancery Courts held that part – performance by such transferees would take their cases out
of the Statue of Frauds. Since then, the equity of part – performance developed further and
passed through several stages for protecting the interests of the transferees who had
performed their part of contract in good – faith and the transferor attempted to harass them on
the ground of technical defect in the contract.
Walsh vs. Longsdale5 and Maddison vs. Alderson6 are two of the major cases that have helped
develop the doctrine of part performance in England. In India, this doctrine has been enacted
with a few modifications.
MADDISON vs. ALDERSON7
B was A’s servant. A had promised B a certain property as life estate, meaning B could enjoy
the property during his life time. B served A for years upon this promised life estate. The will
bequeathing such interest and property to B failed due to want for proper attestation. After A
died, one of his heirs brought action to recover the property from B.
It was held that the act of part performance could not be proof of the contract since the
performance was a condition precedent to the contract. The heir of A was able to recover the
said property.
WALSH vs. LONGSDALE8
Walsh took a cotton mill on lease for 7 years from Longsdale, the owner of the mill. The
agreement was prepared but not signed. In the meantime, rent arrears started to accumulate as
Walsh could not keep up with the quarterly payments of rent. An advance of one year’s rent
5
(1882) 21 Ch D 9
6
(1883) 8 A.C. 467
7
Ibid 6
8
Ibid 5

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could be demanded by Longsdale as per the contract. Lonsdale demanded the advance rent
for one year and seized some goods of Walsh when he defaulted. Walsh sued for damages.
The House of Lords decided in favour of Lonsdale stating that by running the mill, Walsh
had admitted he was a lessee and evidence of his consent to the unsigned lease deed.
The rule laid down in Walsh vs. Longsdale is not applicable in India – as it did not constitute
the doctrine of part performance.
Before 1929 (when Section 53A was inserted in the Transfer of Property Act), the application
of English equity of part-performance was neither certain nor uniform. In certain cases it was
applied whereas in other cases it was not applied.
The Privy Council in Mohd Musa vs. Aghor Kumar Ganguli9 held that doctrine of part
performance is applicable in India. In this case there was a compromise deed which was in
writing but not registered. Under this deed there was division of certain lands between the
parties who had taken possession over their respective parts of the land on the basis of the
compromise deed. The parties continued possession over their lands for many years. After
about forty years, the heirs of the parties repudiated the compromise deed on the ground that
it was not registered. The Privy Council applied the doctrine of part-performance as stated in
Maddison v Alderson and held that although the compromise deed was unregistered but, since
it was in writing, it was a valid document and can’t be repudiated.
But there were divergent views a few years later stating that doctrine cannot be used to
override statutory provisions. Finally in 1929, the Transfer of Property Act was amended and
the English law of part performance became a part of Indian Laws though a little modified.
The law contained in Section -53 A of the Act is almost same as laid by Privy Council in
Mohammed Musa’s case, which had applied the English equity of part-performance with
certain restrictions. The law incorporated in TPA is more restricted than English equity in
two respects. Firstly, in England the equity protects the interest of also such defendant who
has taken possession on the basis of oral agreement, whereas under Section – 53-A, the
agreement must be written. Secondly, in England the equity gives also a right of action
against the evictor, but Section – 53-A gives no such right.

9
(1914) 42 Cal. 801

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4. SCOPE OF SECTION – 53-A
The following postulates are sine qua non for basing a claim on Section 53 A of the Transfer
of Property Act:
a) There must be a contract to transfer for consideration any immoveable property.
b) The contract must be in writing, signed by the transferor, or by someone on his behalf.
c) The writing must be in such words from which the terms necessary to construe the
transfer can be ascertained.
d) The transferee must in part performance of the contract take possession of the
property, or of any part thereof.
e) The transferee must have done some act in furtherance of the contract.
f) The transferee must have performed or be willing to perform his part of the contract. 10
So far as applicability of Section 53A 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
the other conditions of Section 53A. It doesn’t confer any title or interest to the transferee in
respect of the property in possession. Except the right to continue his possession, no other
title or interest is created is created in favour of the transferee.

5. LIMITATIONS OF SECTION – 53 – A

5.1 AVAILABLE ONLY AS A DEFENCE

The Privy Council in Probodh Kumar Das v. Dantmara Tea Co.11has held that the right
conferred by Section 53A is a right available to the defendant to protect his possession. The
Section is so framed so as to impose statutory bar on the transfer; it confers no active title to
the transferee. The above law laid down has been followed with approval by the Supreme
Court in the case of Technicians Studio Pvt. Ltd. v. Leela Ghosh.12
It has been held that Section 53A is only a partial importation in the statute law of India of
the English doctrine of part performance. Thus, a person who is lead into possession on the
10
Nathulal supra note 3; Shrimat Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi, AIR 2002 SC 960;
Rambhao Namdeo Gajre v. Narayan Bapuji Dhotra, (2004) 8 SCC 614; Ram Kumar Agarwal v. Thawar Das,
(1999) 7 SCC 303; Jacobs Private Limited v. Thomas Jacob, AIR 1995 Ker 249. See also Damodaran v.
Shekharan, AIR 1993 Ker 242, M. Mariappa v. A.K. Sathyanarayan Shetty, AIR 1984 Kant 58.
11
AIR 1940 PC 1.
12
AIR 1977 SC 324.

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strength of a void lease does not acquire any interest in the property, but gets under Section
53A only a right to defend his possession. It can be used only as a defence.13 Following
Probodh Kumar, the Supreme Court again in Delhi Motor Company v. U.A.Basrurkar14 has
held that Section 53A is only available as defence to the lessee, and not as confirming a right
as the basis of which the lessee can claim rights against the lessor.
This Section does not confer title on the defendant in possession 15; and he cannot maintain a
suit on title. 16 The Supreme Court has approved this principle. Thus it can be concluded that
this section does not create a title in the defendant but merely acts as a bar to the plaintiff in
asserting his title. It is limited to the cases where the transferee has taken possession, and
against whom the transferor is debarred from enforcing any right, other than that mentioned
in the contract.
But the words of the Section do not warrant a conclusion that the plaintiff as such is
necessarily debarred from the benefit of this Section.17 The true position as explained by
Justice Subba Rao, in a case decided by Andhra Pradesh High Court is:
“whether the transferee occupies the position of a plaintiff or a defendant, he can resist
the transferor’s claim against the property. Conversely, whether the transferor is the
plaintiff or the defendant, he cannot enforce his rights in respect of the property against
the transferee. The utility of the Section or the rights conferred there under should not be
made to depend upon the manoeuvring for positions in the court of law, otherwise a
powerful transferor can always defeat the statutory provisions of the Section by
dispossessing the transferee by force and compelling him to go to the court as plaintiff.
Doubtless, the right conveyed under the Section can be relied upon only as a shield and
not as a sword but the protection is available to the transferee both as a plaintiff and as a
defendant so long as he uses it as a shield.”18
Thus, the correct interpretation of this section is that this section gives to the transferee
only the right to defend his possession; this defence of possession may be in the form of
plaintiff or defendant.

13
Ram Gopal Reddy v. Additional Custodian, Evacuee Property, AIR 1966 SC 1438.
14
AIR 1968 SC 794.
15
Kuchwar Lime Stone Co. v. Secretary of State, AIR 1936 Pat 372.
16
S.N.Banerjee v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128.
17
Radhanath Swain v. Madhusudan, AIR 1956 Ori 58.
18
Achayya v. Venkata Subba Rao, AIR 1957 AP 854

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 5.2 TRANSFERS AND AGREEMENTS COVERED BY THIS SECTION
This Section applies to leases and agreements to lease.19 Where an agreement to lease is
evidenced by correspondence, the lessee is put in possession, and there has been
acceptance of rent by the lessor for several years, the Supreme Court held that section was
applicable, and the lessee could defend the suit for ejection. 20 It also applies to
usufructuary mortgages and mortgages with possession. 21
It however does not apply to a family agreement which does not involve a transfer of
property22, or to a partition which is not transfer at all. 23 It also doesn’t apply to license or
to the transfer of moveable property.

5.3 RIGHT EXPRESSELY PROVIDED BY THE CONTRACT

The transferor may enforce a right which is expressly provided by the contract. So, if the
contract were an agreement of lease not provable for the want of registration, the lessee
could resist a demand for rent. Of he did so, he will be disentitled to the benefit of the
Section as not being willing to perform his part of the contract. so also where a lessee has
already put in possession of certain premises in part performance of an unregistered lease,
the lessor can enforce the term of the lease entitling him to re-enter, if there default in
payment of six months’ rent.24
Similarly, if the unregistered lease was only for a term, there would be no right to continue
in possession after the expiry of the term. 25

5.4 PROVISON: TRANSFEREE FOR CONSIDERATION WITHOUT NOTICE

The proviso to this Section protects the rights of a subsequent transferee for value without
notice of previous transferee’s rights of part-performance. Therefore, this Section does not
affect the rights of transferee for consideration who has no notice of the contract of sale or
of part-performance.
The purpose of the proviso is to defeat the claim which would otherwise, have succeeded
under the main part of this Section.26 The question of proviso does not arise until and

19
Maneklal Mansukhbhai, supra note 3.
20
Ibid.
21
Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81; Rami Reddi v. Venkat Reddi, AIR 1963 AP 489.
22
Jileba v. Marmersa, AIR 1950 All 700.
23
Rashakretayya v. Sarasamma, AIR 1951 Mad 213.
24
Muralidhar v. Tara Dye, AIR 1953 Cal 349.
25
Radha Charan Das v. Pranbati Dassi, (1959) 63 Cal WN 535.

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 unless the claimant has substantiated his claim under the main part of this Section. 27 The
proviso to the Section saves the right of a transferee for consideration who has no notice of
the contract or its part-performance. The burden for proving that he is a transferee for
consideration without notice is on the transferee. 28 This was so held prior to the enactment
of Section 53A.

5.5 WHEN IS DOCTRINE OF PART-PERFORMNACE NOT AVAILABLE

This doctrine was not available against other co-owners, i.e., the two brothers who were
not the signatories to the agreement or the consenting party or the recitals show that the
agreement was entered into with the consent of the adult members; therefore, the
protection of doctrine of part performance was not available to defendant no.3 against the
plaintiffs.
Therefore, even if the agreement was valid to the extent of the share of the widow, as held
by the lower appellate Court, the remedy for the appellant was to institute a suit for decree
for specific performance to the extent of the share of the widow and also a suit for
partition as it was a Hindu undivided family property.

6. CONCLUSION
The doctrine of part performance is an equitable doctrine designed to relieve the rigor of the
law and provide a remedy when a transfer or an agreement for transfer falls short of the
requirements laid down by the law. In England the doctrine was developed by the Equity
Courts. In a modified form it has been recognized statutorily in India being embodied in
Section 53A.
Section 53A of the Transfer of Property Act applies to a person who contracts to transfer
immovable property in writing. If the proposed transferee in agreement has taken possession
of the property or he continues in possession thereof being already 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, the transferor shall
be debarred from enforcing any right in respect of the property.

26
SOLI J SORABJEE, DARASHAW J VAKIL’S COMMENTARIES ON THE TRANSFER OF PROPERTY
ACT 595 (2nd edn Wadhwa Nagpur 2004).
27
S Veerabadra Naicker v. S Sambanda Naicker, AIR 2003 Mad 19; Yasodammal v. Janaki Ammal, AIR 1968
Mad 294
28
Prova Rani v. Lalit Mohini, AIR 1960 Cal 541

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Also, Section 53A does not confer any title or interest to the transferee in respect of the
property in his possession. Furthermore, it does not give to the transferee any right of action.
It provides merely a right of defence. This is the essence of the principle incorporated in
Section 53A of the Transfer of Property Act.

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 7. BIBLIOGRAPHY
BOOKS
1. Sarthi Vera P., G.C.V. Subba Rao’s Law of Transfer of Property (Easements, Trust
and Wills), 6th edn, Alt Publications, Hyderabad, 2005
2. Singh Avtar, The Transfer of Property Act, Universal Law Publishing Co. Pvt. Ltd.,
Delhi, 2005
3. Sinha R.K., The Transfer of Property Act, 12th edn, Central Law Agency, Allahabad,
2011

CASE LAWS
1. Achayya v. Venkata Subba Rao, AIR 1957 AP 854;
2. Probodh Kumar Das v. Dantmara Tea Co, AIR 1940 PC 1.
3. Delhi Motor Company v. U.A.Basrurkar, AIR 1968 SC 794.
4. Technicians Studio Pvt. Ltd. v. Leela Ghosh, AIR 1977 SC 324.
5. AMA Sultan and Ors. v. Seydu Zohra Beevi, AIR 1990 Ker 186.
6. Amrao v. Baburao, (1950) ILR Nag 25
7. Ariff v. Jadunath, AIR 1931 PC 79
8. Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81;
9. Balram Jairam v. Kewalram, AIR 1940 Nag 396
10. Bhabhi Dutt v. Ramlalbyamal, AIR 1934 Rang. 303.
11. Bhagwandas v. Surajmal, AIR 1961 MP 237.
12. Chaliagulla Ramchandrayya v. Boppana Satyanarayana, AIR 1964 SC 877
13. Chaman Lal v. Surinder Kumari, AIR 1983 P&H 323.
14. Chetak Construction Ltd. v. Om Prakash, AIR 2003 MP 145.
15. Damodaran v. Shekharan AIR 1993 Ker 242,

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