What is the Doctrine of Part Performance? Discuss with reference to statutory provisions and case law.

Question: What is the Doctrine of Part Performance? Discuss with reference to statutory provisions and case law. [Punj JS 2003, 2010]

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Answer

The Doctrine of Part Performance, an equitable principle, originated in England and was later incorporated into the Transfer of Property Act, 1882, through the Amendment Act of 1929. This doctrine addresses situations where parties enter into contracts, such as contracts for the sale of immovable property, and one party, in reliance on the contract, performs their part or takes possession of the property.

The Doctrine of Part Performance finds its roots in the English case of Maddison v. Alderson, (1883)8 App Cas 467.

It was introduced to Indian law through the Transfer of Property (Amendment) Act, 1929, settling the uncertainties highlighted in cases like Mahomed Musa v. Aghore Kumar Gangoli, (1914) ILR 42, Ariff v. Jadunath, AIR 1931 PC 79, and Mian Pir Bux v. Sardar Mohomed Tahar, AIR 1934 PC 235.

Section 53A of the Transfer of Property Act, 1882, outlines the provisions related to part performance. Section 53A reads as under:-

"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 where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor 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..."

For this section to be applicable, there must be a written contract signed by the transferor or someone on his behalf, clearly specifying the terms necessary for the transfer.

The transferee, in part performance of the contract, must take possession of the property or continue in possession and perform some act in furtherance of the contract.

Conditions for Application:

a) There must be a written contract for the transfer of immovable property.

b) The contract must be signed by the transferor or on his behalf.

c) The writing must contain terms that allow ascertaining the necessary elements of the transfer.

d) The transferee must, in part performance, take possession of the property and perform some act in furtherance of the contract.

e) The transferee must be willing to perform his part of the contract.

In the case of V.R. Sudhakara Rao v. T.V. Kameswari (2007), it was ruled that the benefits of Section 53-A cannot be claimed by a person who possesses property based on an oral agreement of sale. It is not sufficient for the contract to be in writing; it must also be duly executed, meaning it should be signed by the transferor or someone on their behalf.

The Doctrine of Part Performance operates as an equitable protection for the transferee who, in reliance on the contract, has paid the price and taken possession, even if the transfer deed has not been registered.

This protection is available against the transferor, who is barred from challenging the transferee's possession of the property.

As observed in the case of A.M.A Sultan (deceased by LRs) and Ors. v. Seydu Zohra Beevi, AIR 1990 Ker 186, in order to invoke Section 53-A, the transferee must have taken possession of the property or continued to possess it as part performance of the contract. Alternatively, the transferee must have undertaken some action that advances the execution of the contract.

Doctrine of Part Performance, embodied in Section 53A of the Transfer of Property Act, provides statutory recognition to the equitable principle. It serves as a safeguard for a party who, in reliance on a written contract, has taken possession of immovable property and performed acts in furtherance of the contract, creating an equitable right against the transferor's challenge. The conditions laid out in Section 53A aim to ensure that the doctrine is applied judiciously, protecting the legitimate expectations of the party in possession.