In this blog, we will write about the doctrine of part performance which is incorporated under section 53A of the Transfer of Property Act, 1882. We will discuss the underlying principle, purpose, essential elements, and scope of applicability of the doctrine of part performance.
The rule laid down by section 53A of TPA, 1882 is that when a party has taken possession under a contract or already being in possession continues his possession and that party is willing to perform his/her portion of the contract or that party has done some act in furtherance of the contract, the other party can not remove him/her from possession of the property. Section 53A of TPA, 1882 operates as a bar or estoppel to the plaintiff claiming his title and gives the defendant a right to protect his/her possession.
The Underlying Principle of Doctrine of Part Performance
The doctrine of part performance has originated from principles of equity, justice and good conscience. It is based on the equitable maxim, “Equity looks on that as done which ought to be done.” When a party to a contract has performed his/her part of the contract willingly in the confidence that the other party would also do the same and if the other party refuses to perform his/her part then doctrine of part performance comes into play and protects the interest of the performing party and safeguards his/her possession which is obtained in furtherance of a contract. There is another equitable maxim which is relatable to this doctrine, namely ubi jus ibi remedium (where there is a right, there is a remedy). When a party is ready and willing to perform his obligations under a contract it is obvious that the party has gained some interest or right in that property so that party should have a remedy in law too. Otherwise it will be grave injustice.
Essential Ingredients of Doctrine of Part Performance Under Section 53A, TPA, 1882
- There must be a contract for value or consideration between the parties.
- The contract must be written and signed by the transferor and from the contract the terms and conditions necessary to form the transfer must be ascertained with reasonable certainty.
- The transferee had either already taken possession of the immovable property or any part of the property or the transferee being already in possession continues in possession in furtherance of the contract
- The transferee must do some act in furtherance of the contract.
- The transferee must be willing and ready to perform his/her part of the contract.
- There must exist a real connection between the contract and the acts done in furtherance of the contract and must be clearly referable to the contract.
Purpose of Doctrine of Part Performance under Section 53A of TPA, 1882
The aim of incorporation of Section 53A in 1929 is to prevent fraud and injustice. The doctrine of part performance has its root in the principles of equity, justice and good conscience. It would be grave injustice if there is no remedy for the party who has performed his/her part of the contract in the confidence that the other party would also perform his part of the contract. Section 53A of TPA, 1882 is a defensive provision. The defendant who has been ejected from an immovable property can use section 53A as a defense to protect his lawful possession if all the requirements of this section are fulfilled. So, the main purpose of section 53A is to act as a shield for the defendant.
Comparison Between English Law and Section 53A of TPA,1882 Regarding Doctrine of Part Performance
The doctrine of part performance under English law can be applied to oral contracts out of Statute of Frauds in contrast, under section 53A of TPA, 1882 this doctrine can be applied only to a document registered under Registration Act, 1908 and TPA, 1882. Under English law it is not necessary that the contract must be in writing. Under English law the doctrine of part performance is an active equity and the person in possession can enforce in an independent suit for further proceedings. In English law the person invoking the doctrine of part performance can use it to declare his title in the property. Under section 53A doctrine of part performance can be used by the defendant merely as a shield to protect his/her possession. The defendant can not use this section as a weapon to establish his/her claim or title in the property in furtherance of a written agreement. Under section 53A it is a statutory right for safeguard of possession on the contrary, under english law it is an equitable right. Unlike English law section 53A confers no right of action.
Thus, the equitable doctrine of part performance of England has been partially incorporated in Section 53A of TPA, 1882.
Scope of Applicability of Doctrine of Part Performance under Section 53A, TPA, 1882
Prior to 1929 the doctrine of part performance was inapplicable in this sub-continent. By the amending Act of 1929 section 53A has been inserted in TPA, 1882. After 1929, under section 53A a person was able to defend his possession under a contract although the contract under which he holds possession is not registered as required by the law. By virtue of the amendment brought about to Section 53A in 2004 with effect from 1st July, 2005 by the Act 26 of 2004, at present section 53A will be applicable only to a contract which is duly registered under section 17 of Registration Act, 1908. An unregistered contract will not entitle the defendant to protect his possession by invoking section 53A of TPA, 1882.
The defendant can rely on this doctrine only when the contract is proved to be genuine and duly registered. This section is not applicable to oral contracts. This section is also inapplicable in respect of a contract which is void ab initio.
A subsequent bona fide transferee for value without notice of the original contract is protected under section 53A of TPA, 1882. A bona fide purchaser for consideration is entitled to hold his/her title against the party who is trying to defend his possession by invoking the doctrine of part performance
Check out our other TP Article here.