CENTRAL UNIVERSITY OF SOUTH BIHAR

ACADEMIC YEAR:- 2020-2021

Submitted on 21st April 2021

DOCTRINE OF PART PERFORMANCE

Submitted to :- Submitted by:-

DR. PALLAVI SINGH RITESH KUMAR

ASSISTANT PROFESSOR B.A LLB ( Hons.)

School of Law and Governance CUSB1813125078

Central university of South Bihar 6th Semester (2018-2023)

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 Acknowledgement
I am very glad to get this opportunity to prepare a report on the above topic. I would like to
express my special thanks of gratitude to my teacher DR. PALLAVI SINGH, our teacher , who
gave me the golden opportunity to do this wonderful project on the topic “DOCTRINE OF
PART PERFORMANCE” which also helped me in doing a lot of research and I came to know
about so many new things. I am really thankful to and fortunate enough to get constant
encouragement, support and guidance from all Teaching staffs of the School of Law and
Governance who helped me in successfully completing my project work. I would also like to
thank my parents and friends who helped me a lot in finalizing this project within the limited
time frame.
RITESH KUMAR
CUSB1813125078

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 Table of Content

1. Literature review
 Research objective
 Research methodology
2. Introduction
3. Doctrine of Part Performance
4. History of the section and conditions for the application of Section 53A
5. Scope of Section 53A
6. Transfers and agreements covered by this section
7. When is doctrine of Part Performance not available
8. Comparison of Section 53A with English doctrine of Part Performance
9. Applicability in India
10. Limitations of Section 53A
11. Conclusion
12. Bibliography

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 1. Literature Review

 Research Objectives: The object of the project is to present a detailed study on the topic
of ‘Doctrine of Part- Performance’ under the Transfer of Property Act, 1882.
 Research Methodology: This project is basically based on the doctrinal method of
research as no field work has been done on this topic.

2. 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.

3. 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 are passed to another
person, 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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Section 53A of the Transfer of Property Act provides that:

Where any person contracts to transfer for consideration any immovable 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, [Para. 1]

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, [Para.2]

And the transferee has performed or is willing to perform his part of the contract, [Para 3]

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 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: [Para4]

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. [Proviso]

The Section has been described by the Privy Council 2 , and by the Supreme Court 3 , 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

4.HISTORY OF THE SECTION AND CONDITIONS FOR THE

APPLICATION OF SECTION 53A
The Statute of Frauds was passed in England in 1677 and S.4 thereof provided inter alia that:
“No action shall be brought whereby…..to charge any person upon any agreement made in
consideration of marriage or upon any contract of sale of lands, tenements or hereditaments or
1
The words ‘the contract, though required to be registered, has not been registered, or’ have been omitted by
S.10 of the Registration and Other Related Laws Amendment Act 2001 (Act no 48 of 2001) wef 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.
BoppanaSatyanarayana, AIR 1964 SC 877; See also Nathu Lal v. Phoolchand, [1970] 2 SCR 854; Sardar
GovindraoMahadik & anr. V. Devi Sahai and ors., AIR 1982 SC 989.
4
Amrao v. Baburao, (1950) ILR Nag 25.

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any interest in or concerning them…..unless the agreement upon which such action shall be
brought or some memorandum or note thereof shall be in writing and signed by the party to be
charged therewith or some other person thereunto by him lawfully authorised.”
It will be noticed that a contract which failed to comply with the requirements of the Statute of
Frauds was not void but was merely one which could not be proved except by a memo in
writing. On this principle it was held that if the parole agreement of the nature referred to in the
Statute of Frauds was admitted by the part bound, it was out of the statute. The object of the
statute was held to be merely to prevent fraud being perpetrated. But in the application of the
statute it was found in practice that it was sometimes capable of being taken advantage of to
effectuate a fraud. It enabled a person who induced anther to act upon his promise and change his
position, subsequently to turn round and repudiate his promise on the ground that it was not
reduced to writing. Courts of Equity, therefore, sought out means to relieve this difficulty. The
theory on which they proceeded was that a statute intended to guard against fraud should not be
allowed to so operate as to encourage fraud. By construction, they limited the operation of the
statute to those cases only where the relief was claimed on the contract itself as alleged and held
that it did not apply to cases where the contact was partly performed by the parties and the acts
of part performance gave rise to an inference by themselves that there must have been some
contract between them. In other words, where material acts were done in part performance of the
contract it was held that it was taken out of the mischief of the statute.
It was, however, held that the doctrine of part performance was one which should not be unduly
extended, but should be confined within limits intended to prevent the recurrence of the very
mischief which the statute was intended to suppress.

Conditions for the application of Section 53A

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.

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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.

5.SCOPE OF SECTION 53A

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.5
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.

6. TRANSFERS AND AGREEMENTS COVERED BY THIS SECTION

5
Shrimat Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi, AIR 2002 SC 960.

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This Section applies to leases and agreements to lease.6 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.7 It also applies to usufructuary mortgages and
mortgages with possession.8

7.WHEN IS DOCTRINE OF PART PERFORMANCE 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.3against 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.

8.COMPARISON OF SECTION 53A 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. Section 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

6
Maneklal Mansukhbhai, supra note 3.
7
Ibid
8
Ayyan Kunhi v. Krishna, AIR 1950 Tr&Coch 81; Rami Reddi v. Venkat Reddi, AIR 1963 AP 489.

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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. Longsdale9 and Maddison vs. Alderson10 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.

Walsh vs. Longsdale (1882) 21 Ch D 9.

Facts and Ratio: 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 could be demanded by Longsdale as per the contract. Longsdale 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.

Maddison vs. Alderson (1883) 8 A.C. 467.

Facts and Ratio: 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.

9.APPLICABILITY IN INDIA
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

9
Walsh vs. Longsdale (1882) 21 Ch D 9.
10
Maddison vs. Alderson (1883) 8 A.C. 467.

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Council in Mohd Musa vs. Aghor Kumar Ganguli 11 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.

10. LIMITATION OF SECTION 53A

The Privy Council in Probodh Kumar Das v. Dantmara Tea Co. 12 has 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 Ghosh13 . 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 strength of a void lease does not acquire any
interest in the property, but gets only a right to defend his possession under Section 53 A. It can
11
Mohd Musa vs. Aghor Kumar Ganguli (1914) 42 Cal. 801.
12
Probodh Kumar Das v. Dantmara Tea Co. AIR 1940 PC 1.
13
Technicians Studio Pvt. Ltd. V. Leela Ghosh AIR 1977 SC 324.

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be used only as a defence. 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; and he cannot maintain a suit
on title. 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. 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 transferors 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.”15
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.

11. 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

14
Delhi Motor Company v. U.A.Basrurkar AIR 1968 SC 794.
15
Achayya v. Venkata Subba Rao, AIR 1957 AP 854.

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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. 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.

12. BIBLIOGRAPHY
Books
 Singh Avtar, The Transfer of Property Act, Universal Law Publishing Co. Pvt.Ltd.,
Delhi, 2005.
 Sinha R.K., The Transfer of Property Act, 12th edn, Central Law Agency,Allahabad,
2011.

Online references:

 http://www.legalserviceindia.com/legal/article-1695-the-doctrine-of-part-performance.html
 https://www.google.com/amp/s/blog.ipleaders.in/doctrine-of-part-performance/amp/

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