Doctrine of Part Performance under Transfer of Property Act, 1882

Introduction

The Doctrine of Part Performance which is based on the principle of equity was created in England and was, along these lines added to the Transfer of Property Act, 1882 by means of the Amendment Act of 1929. In the law of contracts (for e.g., an agreement to sell), no rights are transferred to another till the deal is finished. But if after entering into an agreement, an individual plays out his part or does any act in furtherance of the agreement, he is qualified for reimbursement or performance on the off chance that the other party dawdles. Section 53A of the Transfer of Property Act, 1882 says that if an individual settles on concurrence with another and lets the other individual do some act for the furtherance of the agreement; such an individual makes equity himself that cannot be opposed on the negligible grounds of absence of formality in the proof or agreement of such an exchange.

The Doctrine Of Part Performance: Application And Scope

Basis Of The Doctrine Of Part Performance

The Doctrine of Part Performance is based on the following three maxims of equity-

1. He who seeks equity must do equity
2. Equity treats that as done which ought to have been done.
3. Equity looks to the intent rather than the form.

Essential Ingredients Of The Doctrine Of Part Performance

The essential ingredients of the Doctrine of Part Performance are as follows[1]-

a) A written agreement for the transfer of immovable property;

b) There must be a consideration;

c) The agreements should give out the provisions of the exchange with sensible conviction;

d) The transferee should have taken possession because of this agreement or proceeded to possess if he was at that point already in possession of the property;

e) The transferee must have done some act in the facilitation of the agreement; and

f) The transferee ought to have played out his part of the arrangement or be willing to perform it.

The Doctrine Of Part Performance- When Applies?

In Vasanthi v. Venugopal[2] the Supreme Court had reiterated that the following conditions are needed to be met for the Doctrine of Part Performance to come into play-

1) There ought to be an agreement, to transfer any immovable property, for consideration, appropriately composed and marked by the transferor or on his behalf, from which the terms important to establish the exchange can be found out with reasonable conviction.

2) The transferee must have taken possession of the property or any part thereof or if s/he is already in possession ought to have proceeded to possess in part performance of the agreement and ought to have done some act in the advancement of the agreement.

3) The transferee more likely than not performed or is prepared and ready to play out his part of the agreement.

4) The rights of some other consequent transferee for consideration without notice won't be influenced by this doctrine.[3]

The English Law Of Part Performance

Under the English Law of Part Performance,

1. There is no necessity of an agreement which is in writing or which is signed by the transferor.
2. The Doctrine is an equitable right and not a legal/statutory one.
3. It can be utilized for both; enforcing the right as well as defending the right; and
4. It makes a title in the transferee.

The following two landmark cases have played an important role in the development and use of Doctrine of Part performance in English law-

(a) Maddison v. Alderson [4]

(b) Walsh v. Lonsdale[5]

The Indian Law Of Part Performance

Even before the commencement of the Transfer of Property Act, 1882, the English law of Part Performance was applied by the Indian Courts on the basis of Justice, Equity and Good Conscience. Before Section 53A was embedded in the Transfer of Property Act, 1882, there were various perspectives upon such application. Thus, the position before 1929 was that in some cases the Doctrine was applied, while in others (Ariff v. Jadunath[6]; Mian Pir Bux v. Sardar Mhd. Tahir[7]) it was not applied. The Privy Council in Mohd. Musa v. Aghor Kumar Ganguli[8] held that is appropriate to apply the Doctrine of Part Performance in India. There were disparate perspectives a couple of years later expressing that the Doctrine cannot be utilized to supersede legal arrangements. Subsequently, in 1929, the Transfer of Property Act was amended and the English law of part performance turned into a piece of Indian laws. In India, the principle is utilized uniquely as a shield and not as a sword i.e., not to enforce rights as laid down by the Supreme Court in Delhi Motors[9] case. In any case, it must be noticed that the bothered party can either be the plaintiff or the respondent in a suit as the case may be.

Difference Between English Law And Indian Law Of Part Performance

The Doctrine of Part Performance was adopted by India from the English laws but with certain modifications, because of the following differences-

1. Under English law, the remedy of Part Performance is available even if the contract is in oral form, while in India the contract has to be in writing.[10]
2. Under English law, the scope of this Doctrine is wider than under Indian law. This is because it is a right of action as well as a defense under English law, while under Indian law it is only a right of defense.
3. Under English law, any act in furtherance of the contract is sufficient to avail this remedy but under Indian law, possession of the property or any part thereof by the transferee is the must.

Conclusion

An amendment has been made in Section 53-A of the Transfer of Property Act by the Registration and other Related Laws Act (48 of 2001). By virtue of this, in Section 53-A, para 4 of the Transfer of Property Act the words "the contract, however, required to be registered, has not been registered, or," was omitted. Accordingly, certain amendments were also made in Sections 17 and 49 of the Indian Registration Act, 1908. By virtue of these amendments, the effect is that now a contract has to be necessarily registered.[11] Hence, it can be concluded that this Doctrine has been evolved in view of preventing frauds, especially on account of non-registration of documents.

This article is authored by Nandini Menon, a 3rd-year student pursuing a 5-year law course [BSW LLB (Hons.)] at the Gujarat National Law University (GNLU).

Disclaimer: The article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our terms of use or write to us in case of any concerns.

[1] Zafar E, Mullas & Chitaley Commentaries on the Transfer of Property Act, 1882: with All Amendments and Case Laws Upto Date (Imran Law Book House 2016).

[2] [2017] 4 SCC 723.

[3] SACKVILLE R and others, Property Law: Cases and Materials (8th ed, LexisNexis Butterworths 2008).

[4] [1883] 8 App Cas 467.

[5] [1882] 21 Ch d 9.

[6] AIR [1929] Cal 101.

[7] [1934] 36 BOMLR 1195.

[8] AIR [1914] PC 27 (30).

[9] Delhi Motor Company And Ors v. U.A. Basrurkar And Ors [1968] AIR 794, 1968 SCR (2) 720.

[10] Mool Chand Bakhru And Ors v. Rohan And Anr, AIR [2002] SC 812.

[11] Ahuja U and others, “Doctrine of Part-Performance” (Law Times Journal June 30, 2019) <http://lawtimesjournal.in/__trashed/#_edn12> accessed June 22, 2020.