Doctrine Of Part Performance.docx 64224

JAMIA MILLIA ISLAMIA FACULTY OF LAW PROPERTY LAW PROJECT

Understanding the equitable doctrine of Part Performance & its incorporation in Transfer of Property Act of 1882

By: SAMEEKSHA KASHYAP B.A.- LLb.(Hons.), Self-finance SEMESTER- III (2nd Year) 1

INTRODUCTION The concept of part performance has been taken from English Law. This principle though is an English doctrine, but in India it has been incorporated with some differences. Thus, the English doctrine of Part Performance and the Indian Doctrine of Part Performance as incorporated in the Transfer of Property Act (TPA), 1882 under Section 53A, are different in some aspects. The concerned Section in TPA has gone through several amendments through the course of time. The doctrine of part performance aims to provide protection to the transferee of immovable property on the condition that there must be full satisfaction of all conditions as laid down in section 53Aof the TPA and also all conditions as required to complete sale, as per the Indian Contract Act, 1872, to consider even uned sale as transfer protected from adverse action by transferor. However, section 53A is applicable as a defence only in consonance with other statutory provisions relating to transfer of immovable property. These provisions too like section 53A, have been amended and this has not only affected the operation of the section but also defined its limits. Section 53A protects the interests of property buyer who has satisfied his commitments and is willing to satisfy his commitments and then only the transferor cannot go against him and take back possession or cancel sale. In case the buyer has made defaults, or from his conduct it appears that he will not fulfil his promises, which are required to complete sale, then buyer may not get protection of section 53A and the seller can cancel sale and repossess the property . The compliance of conditions, on part of the buyer is to be considered in the light of the and conditions agreed in the contract, and also the applicable provisions of the Indian contract Act. Therefore, the seller can insist on the buyer to fulfil his promises which he is required to fulfil, in a sequential manner, if any, applicable and provided in the contract. Part performance as a doctrine in the Indian context acts only as a shield or defence mechanism for the transferee rather than a sword i.e. something a party to contract would sue offensively for, like other provisions. Thus, problem lies in understanding its application. This project deals mainly with the kind of situations where this doctrine could be applied or where section 53A would be attracted and where it would not get attracted. The provision provides a statutory right to the transferee against any right of the transferor to defend his possession over the property, either taken possession or right in continuance of the possession, the scope of which is discussed in this project.

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INDEX

1. HISTORY OF THE SECTION..................................................................................pg 4. 2. DIFFERNECES BETWEEN THE ENGLISH DOCTRINE OF PART

PERFORMANCE AND SECTION 53-A OF THE TRANSFER OF PROPERTY ACT, 1882..............................................................................pg 9. 3. SCOPE AND APPLICABILITY OF THE SECTION.......................pg 10. 4. AMENDMENT OF THE REGISTRATION AND SPECIFIC RELIEF ACT.....pg 13. 5. APPLICABILITY OF THE LIMITATION ACT...................................................pg 14. 6. UNDERSTANDING SECTION 53-A.......................................................................pg 15. 7. NATURE OF RIGH:AVAILABLE ONLY AS A DEFENCE................................pg 23. 8. PLEA OF PART PERFORMANCE.........................................................................pg 23. 9. CONCLUSION............................................................................................................pg 24. 10. BIBLIOGRAPHY......................................................................................................pg 25.

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HISTORY OF THE SECTION THE ENGLISH EQUITABLE DOCTRINE OF PART PERFORMANCE Where a contract, which was unenforceable under the statute of Frauds (1677) as not being in writing signed by the parties, had been partly performed and the acts of part performance were such, as unequivocally gave rise to an inference that there must have been such a contract as that alleged, Courts of Equity held that they had power, notwithstanding the Statutes of Frauds to discover by parole evidence the actual of such contract and give relief to the parties on that basis. This in short, is the English equitable doctrine of part performance.

HISTORY OF THE DOCTRINE The Statue of Frauds was ed 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 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.1 On this principle it was held that if the parole agreement of the nature referred to in the Statute of Frauds was itted by the part bound, it was out of the statute.2 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 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.3 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.4 It was, however, held that the doctrine of part performance was one which should not be unduly extended5, but should be confined within limits intended to prevent the recurrence of the very mischief which the statute was intended to suppress.6 The following are the limitations to the doctrine of part performance: (A) The act of part performance must be unequivocally be referable to the alleged contract. 1

. (1883) 52 LJ QB 737 (741,749) : 49 LT 303. . (1801) 34 ER 913 (927) : 6 Ves 12. 3 . !1807) 33 ER 569 (569, 570): 14 Ves 386 : 9 RR 304 4 . (1784) 28 ER 1205 (1212) : 1 Bro CC 404 5 . (1761) 30 ER 126 (127) : 2 RR 41 6 . (1925) 94 LJ Ch 113 (121): 1925 Ch 96 (112) 2

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As observed by Lord Hardwick in Gunter v. Halsey7 “the acts done in part performance must be such as could be done with no other view or design than to perform the agreement.” The mere fact that the act is consistent with the alleged contract is not sufficient. An act, which though in truth done in pursuance of a contract, its of an explanation without supposing a contract is not an act of part performance taking the case out of the statute.8 The mere continuing in possession by a lessee is not an act of part performance of a contract to grant a fresh lease.9 But the continuing in possession by the tenant coupled with the payment of increased rent is an act of part performance.10 The reason is that the formoer is an equivocal act not necessarily referable to an agreement to grant a fresh lease. Where, however, a tenant entered into possession during negotiations for a lease, and continued in possession after the agreement was concluded, it was held that this was a part performance of the contract.11 The mere payment of money even if it be the whole of the purchase- money is not an act of part performance. It is an act capable of various explanations. (B) It must be such an act of part performance as to have changed the relative position of the parties as to the subject-matter of the contract. The taking of possession is not the only mode of part performance recognised. Where the plaintiff altered her own building in accordance with the wishes and suggestions of the defendant it was held that this necessarily suggested the existence of the alleged contract to take the house on rent, that the plaintiff had changed her position for worse and that the doctrine applied even to the acts of the plaintiff on her own property and no possession was taken by the defendant.12 (C) It must not be an act preparatory to the completion of the contract. In Buckmaster v. Harrop13Sir William Grant, M. R. Said: “that without which there could have been no contract cannot be said to be in part performance of the contract.” Thus, the measurement by a party of the subject-matter of an agreement is not a part performance of the agreement but is only a step towards performance. The going of a purchaser, to inspect the property which is the subject matter of an agreement for sale is not part performance of the agreement. DOCTRINE OF PART PERFORMANCE AS DISTINGUISHED FROM THE EQUITABLE DOCTRINE OF WALSH V. LONSDALE.14 It is a maxim of equity in England that “Equity looks on that as done which ought to have been done”. This means that, equity will treat the subject-matter of a contract, as to its consequences and incidents in the same manner as if the act contemplated in the contract has been completely executed. Thus, a contract to transfer real property did not at law any title to the property to the transferee, but equity acting on the above maxim treated the contract as if it had been executed and regarded the transferee as if he was a transferee at law. In other words he obtained an equitable interest in the

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. (1739) 27 ER 381 : Amb 586 . AIR 1925 Rang 322 (324) : 3 Rang 243 9 . (1883) 52 LJ QB 737 (744) : 31 WR (Eng) 820 10 . (1883) 52 LJ QB 737(744) : 8 App Cas 467 (480) 11 . (1918) 87 LJ KB 1101 ( 1103) : (1918) 2 KB 314 (318). 12 . (19240 94 LJ Ch 113(115) : 1925 Ch 96 13 . (1802) 32ER 139 (141) : 6 RR 132 14 . (1882) 31 WR (Eng) 109 : 21 Ch D 9 (14, 15) 8

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property transferred. It was, however, necessary for the application of this maxim, that at the time the Court was called upon to apply the maxim, the right to specific performance of the contract subsisted. For if such right did not exist as, for example, where it had been barred by limitation, it could not be said by the Court that it was one “which ought to be performed by the parties”, and it was only if the contract ought to be performed that equity will regard it as performed. The decision in Walsh v. Lonsdale, rests upon this principle. Facts of the above mentioned case: In this case there was an agreement in writing to execute a lease dead by A in favour of B. B thereupon sued A for an injunction that by the non-execution of a lease deed, he was only a tenant from year to year and that A could not distrain for rent. It was found that the right to specific performance of the contract was subsisting. It was held that A was entitled to distrain on the basis that B was a lessee in equity. It is to be noticed that the rule referred to above, presupposes that a valid contract has been proved or established, and states that equity will treat it as executed and give relief on that basis, where the right to specific performance of such contract is not barred. The doctrine of part performance, on the other hand, applies where a contract be proved by reason of its not being in writing as required by the Statute of Frauds. In such cases, if acts of part performance have been performed by the parties and the acts by themselves were such that they could have been done had there been no contract such as that alleged. Courts of Equity held that the case was outside the Statute of Frauds and felt themselves enabled to it proof of the contract, on the ground that a party cannot be allowed to take advantage of even an Act of Parliament to commit fraud on others. Having thus come to a conclusion that a contract of transfer had been made, they held that relief could be granted to the parties on that basis. They enforced the specific performance of the contract where the right to specific performance was subsisting.15 Where a party had changed his position by acting in pursuance of the contract, they prevented the other party from turning round and giving the go-by to the contract on the ground that it was not in writing and this they did whether the right to specific performance did or did not subsist. LAW IN INDIA BEFORE THE INTRODUCTION OF THIS SECTION Before the Transfer of Property Act was ed, the English doctrine of part performance was applied to cases arising in this country. The matter came up before the Privy Council in Mahomed Musa v. Aghore Kumar Ganguli16in 1914. In that case, a compromise was entered into between parties by which certain mortgage debts were to be extinguished and certain property divided between the parties in specific shares. No conveyance was executed in pursuance of the compromise, but the parties took position of their respective shares and enjoyed them in accordance therewith. ‘The compromise was before the Transfer of Property Act was enacted and under the law then prevailing no written conveyance was necessary transfer title.’ Their Lordships applied the doctrine of part performance as laid down in Maddison v. Alderson17and held that the acting of the parties was such as to supply all defects. Lord Shaw in delivering the judgement of the Board said, “Their Lordships do not think that there is anything either n the law of India or England inconsistent with it but on the contrary that these laws follow the same rule”

15

. AIR 1938 Cal 97 !101,102): ILR (1938) 1 Cal 607(DB) . AIR 1914 PC 27 (30) :42 Cal 801 17 . (1883) 52 LJ QB 737: 8 App Cas 473 16

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In Venkayyamma v. Appa Rao18A promised to B in 1886 to purchase and convey to B certain properties. The parties acted on this basis for a long time but no conveyance was executed by A to B. B sued for possession of the properties. Their Lordships of the Privy Council held that B was entitled to a decree and they referred to the doctrine of part performance as laid down in Mahomed Musa’s case. The conflict of opinion in the High Courts, not unnaturally, continued. In some cases the doctrine of part performance of a contract was applied so as to a plea in defence to a suit for ejectment, provided that the right to sue for specific performance of the contract still subsisted.19 In some cases it was applied without reference to any questions as to whether the right to claim specific performance of the contract to transfer was or was not barred by limitation. In some cases, the possession taken under a contract for sale or lease was held to be a good defence to a suit for ejectment on the principle of Walsh v. Lonsdale. In a fourth class of cases the doctrine of Walsh v. Lonsdale was mixed up with the doctrine of part performance and both were invoked and applied to the same set of circumstances. In a fifth class of cases it was held that the equitable doctrines could not be invoked so as to override the express provisions of the Act. In this state of authorities, S. 53-A was introduced by the amending Act of 1929. This section is a partial importation into India of the English equitable doctrine of part performance.

Section 53-A. Part Performance. ---- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the 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 [...]20 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 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. [Provisio]

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. AIR 1916 PC 9 (13) : 43 Ind App 138 . AIR 1927 Rang 33 (37) : 4 Rang 368 (FB) 20 . The words 'the contract, though required to be ed, has not been ed, 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. 19

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The matter of the applicability of both these doctrines to agreements made before the enactment of the new section came directly into question the next year in Ariff v. Jadunath.21 In that case A, the owner, agreed in 1913 to grant a permanent lease to B and gave him possession. B built upon it. The performance of the agreement by the execution of a ed instrument was refused in 1918. A gave notice to quit in 1922 and subsequently sued B for ejectment. At the date of the suit B’s right to have the contract specifically performed had been carried by limitation. Their Lordships after reviewing the English law relating to part performance of a contract held that neither the doctrine of Walsh v. Lonsdale nor the doctrine of part performance applied, so as to relieve a transaction from the operation of the statute.

21

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. AIR 1931 PC 79 (82): 58 CAL 1235. (On appeal from AIR 1929 Cal 101.)

DIFFERNECES BETWEEN THE ENGLISH DOCTRINE OF PART PERFORMANCE AND SECTION 53-A OF THE TRANSFER OF PROPERTY ACT, 1882 The chief differences between the English doctrine of part performance and the present section are as follows: (1) The contract to which the English doctrine is applicable may be oral. The contract to which this section applies must be in writing signed by the transferor. (2) Under this section, the transferor is only debarred from enforcing any right in respect of the property other than a right expressly provided by the of the contract. The transferee cannot sue for any declaration of his right on the basis of part performance. Under the English law both the parties can claim as plaintiff that the contract be carried into execution, and each can resist a suit by the other claiming rights in violation of the contract. (3) Under the English law, the part performance of a contract gives rise to an equity and not to a legal right. But under the present section the part performance gives rise to a statutory right of defence. The right is, however, one which but for the lack of some formality, the party would have had, under written agreement. The section does not give any right which the informal agreement will itself not give.

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SCOPE AND APPLICABILITY OF THE SECTION So far applicability of s 53A of the TP Act 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 other conditions of s 53A. That protection is available as a shield, only against the transferor, the proposed vendor would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. However, that has nothing to do with the ownership of the proposed transferor who remains full owner of the lands till they are legally conveyed by a sale deed to the proposed transferees. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party like the state when it seeks to enforce the provisions of the Act against the tenure-holder.22 The following postulates are sine qua non for basing a claim on s 53A of the TP Act: (i) There must be a contract to transfer for consideration any immovable property. (ii) The contract must be in writing, signed by the transferor, or by someone on his behalf. (iii) The writing must be in such words from which the necessary to construe the transfer can be ascertained. (iv) The transferee must in part performance of the contract take possession of the property, or of any part thereof. (v) The transferee must have done some act in furtherance of the contract. (vi) The transferee must have performed or be willing to perform his part of the contract.23 In view of the amendment by the Amending Act of 2001, another requirement would be that the document containing contract for transfer of immovable property, if executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act 2001, ie, 24 September 2001, has been ed. A proposed vendee cannot protect his possession of the immovable property on the basis of an oral agreement. Written agreement is sine qua non for applicability of the equitable doctrine of part performance enshrined under s 53A.24 In the absence of the pleadings and evidence of all the essential conditions, making out a defence of part performance to protect possession claimed by the plaintiff, would not be attracted.25 The plea

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. State of Uttar Pradesh v District Judge AIR 1997 SC 53 . Nathulal v Phool Chand (1969) 3 SCC 120, AIR 1970 SC 546; Shrimant Shamrao Suryavanshi v Pralhad Bhairoba Suryavanshi (2002) 3 SCC 676, AIR 2002 SC 960; Rambhau Namdeo Gajre v Narayan Bapuji Dhotra (2004) 8 SCC 614; Ram Kumar Agarwal v Thawar Das (1999) 7 SCC 303, p 309; Jacobs Private Limited v Thomas Jacob AIR 1995 Ker 249. See also Damodaran v Shekharan AIR 1993 Ker 242; M Mariappa v AK Sathyanarayan Shetty AIR 1984 Kant 58. 24 . Nathulal v Phool Chand (1969) 3 SCC 120; Sardar Govind Rao v Devi Sahai (1982) 1 SCC 237; Mool Chand v Bakhra Rohan (2002) 2 SCC 612; see also Nigamananda Patra v Sarat Chandra Patra AIR 1998 Ori 19. 25 . Hazilal v Jugal Kishore AIR 1999 MP 104 23

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under s 53A of the TP Act raises a mixed question of law and fact and, therefore, cannot be permitted to be urged for the first time at the stage of second appeal.26 Where the 2nd defendant took a defence under S.53-A only on the basis that the 1st defendant has given possession on grant of allotment of lands in their favour and the said allotment was only on the basis of the contract between the 1st and the 2nd defendants, they cannot use S.53A as a shield to debar the plaintiff from claiming possession when they are not parties to the agreement to sale between 1 st defendant and plaintiff.27 Where the transferee was put in possession of the property in pursuance of a deed of agreement for its sale and continued in possession, he must be deemed to be protected by S.53A.28 The position of a person who takes possession of the property in part performance of a contract for sale of the said property in his favour fulfilling all the requirements of S.53A is analogous to the position of holders of a limited or life estate, mortgagees in possession, lessees having the right to sublet for such a person who also holds the property in his own right.29 Benefit of the section goes not only to the party to the transfer for consideration, but also one who is claiming under that party.30 Similarly under S.53-A, a proposed transferee is entitiled to protect his possession against the true owner or any person claiming through him.31 Where after the creation of usufructuary mortgage the mortgagor took fresh loan and agreed that on failure to repay loan, he would sell the property to mortgagee for the loan amount, the document amounted to agreement of sale but being uned was of no effect, mortgagor’s right to redeem was not extinguished. S. 53-A has no application.32 Section 53-A was inserted principally for the protection of ignorant transferees who take possession or spend money in improvements relying on documents which are ineffective as transfers or on contracts which cannot be proved for want of registration. The effect of the section is to relax the strict provisions of the Transfer of Property Act and the Registration Act in favour of the transferees in order to allow the defence of part performance to be established. Provision of S.53-A does not apply to transferee during pendency of suit.33 The principle of part performance cannot be applied in case of gifts.34 Where the agreement of sale of immovable property was in writing and it was proved that the transferee was already in possession of the property and, in part performance of the agreement he had paid two instalments due under the agreement in time; however the third instalment was paid a few months after the due date, because of the death of one of the transferors and it was accepted by the

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. Ram Kumar Agarwal v Thawar Das (1999) 7 SCC 303, p 309, [1999] 4 LRI 687; Sham Lal v Mathi AIR 2002 HP 66, para 18. 27 . 2002 (2) Cur CC 330 (337) (Mad) 28 . 1999(2) Gauhati LR 391 (403) 29 . 1979 All LJ 823 (826): (1979)2 Rent LR 533 30 . AIR 1996 Mad Pra 307 (310) : 1966 Jab LJ 1112 31 . 2007 (5) Mah LJ 791 (796) 32 . AIR 1986 Kant 221 (223) : (1985) 2 Kant LJ 364 33 . 1991 Pun LJ 242 (243) 34 . AIR 1984 (NOC) 67 : ILR (1983) Him PRA 395

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transferors and the transferee was also willing to perform his part of the contract, S. 53-A shall be applicable in his case.35 Where the possession was given under Power of Attorney and not given in of agreement, protection under S. 53A could not be claimed.36 Where a mother enters into agreement to sell property owned by minors as co-owners and possession is given to the prospective purchaser, and no major co-owner was a party to the agreement, the agreement could not operate as a bar for protecting possession of purchaser in the absence of pleading and evidence of all four essential conditions necessary for making out a defence of part performance. Besides, the doctrine of part performance was not available against the co-owners, who were not signatories to the agreement nor were consenting parties.37 When the mortgager/vendor agrees to sell the mortgaged property to the mortgagee/putative vendee in possession, the mortgagee’s status is subsumed or merged in his rights as a putative vendee under S.53A against the transferor, provided of course the pre-conditions for the application of S.53A are fulfilled. In such a situation equity of redemption in mortgagor/vendor is lost, he cannot reclaim possession of mortgaged property.38

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. AIR 1984 Punj 95 (97,98) . 2002 (3) Bom CR 611 (618). 37 . AIR 1000 Madh PRA 104 (107,108) 38 . 2000 AIR SCW 4354 (4357): 2000(8) Supreme 268 36

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AMENDMENT OF REGISTRATION AND SPECIFIC RELIEF ACT AMENDMENT ACT OF 1929 The Amending Act of 1929 did not merely partially introduce the equity of part-performance into Indian law by enacting s 53A, but also reinforced the position by amending the Registration Act 1908 and Specific Relief Act 1881. Section 49 of the Registration Act 1908 which enacts that a document required to be ed, but not ed, shall not affect the immovable property comprised therein, or be received as evidence of any transaction affecting such property, is amended, and a proviso is inserted to permit such a document being received in evidence in a suit for specific performance, or as evidence of partperformance of a contract for the purposes of s 53A of the TP Act. This proviso made it clear that S.49 does not prevent an uned agreement or deed to be itted in evidence as a contract.39 It gave statutory recognition to Puchha Lal v Kunj Behari Lal,40 and supersedes the decision in Sanjib Chandra v Santosh Kumar.41 Under the proviso, the uned document may be referred to as evidence that certain acts are done in performance of the agreement, for instance when a building has been erected in the of an uned lease.42 However, a document which must be regarded as uned for fraud on registration cannot be referred to for invoking this section.43 AMENDING ACT OF 2001 The amendments made the amending Act of 1929, both under the TP Act as well as the Registration Act 1908, to even uned documents for the purpose of S.53A has now been withdrawn by the amendments made by the Registration and Other Related Laws (Amendment) Act 2001, which has come into force with effect from 24 September 2001. By this amending Act, as already noticed above, the words 'the contract, though required to be ed, has not been ed, or,' as appearing in para 4 of s 53A has been omitted. Simultaneously, S.17 and S.49 of the Registration Act 1908 have been amended making it clear that unless the documents containing contract to transfer for consideration any immovable property for the purpose of S.53A is ed, it shall not have effect for the purposes of S.53A. AMENDMENT IN SPECIFIC RELIEF ACT The Amending Act also inserted a new section, Section 27A, in the Specific Relief Act 1881, providing that a party may sue for the specific performance of a contract in writing to lease immovable property, even though it is not ed, if he has acted in part-performance of the agreement. This amendment was wider than S.53A, for the section enacts an equity which is only available as a defence. Section 27A of the Specific Relief Act, however, enacted an active equity, as in English law, 39

. Girja v Girdhari (1950) ILR 29 Pat 628, AIR 1951 Pat 277; Rajendra N Sarkar v Gour C Ghosh (1970) 75 Cal WN 106. 40 . (1913) 18 Cal WN 445, 20 IC 803. 41 . (1922) ILR 49 Cal 507, 69 IC 877, AIR 1922 Cal 436, foll in Ramjoo Mahomed v Haridas Mullick (1925) ILR 52 Cal 695, 91 IC 320, AIR 1925 Cal 1087. 42 . Cf Lester v Foxcroft (1701) Colles PC 108, W & T LC, vol II, 9th edn, p 410. 43 . Anand Narain v Lala Murli Manohar AIR 1945 Oudh 120

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sufficient to an independent action by a plaintiff.44 If a plaintiff was in possession under a lease (which would otherwise be inissible for want of registration), he could put the lease in evidence, and sue upon it for specific performance treating it as a contract, or to show the character and nature of the possession of the defendant.45 Whether a contract could be specifically enforced was not a relevant factor in granting relief under this section.46 Section 27A is not re-enacted in the Specific Relief Act 1963. Protection of S.53A would be available to the vendee till his suit for specific performance of contract is disposed off finally.47 The amending Act of 2001 has not made any amendments in the Specific Relief Act 1963.

APPLICABILITY OF THE LIMITATION ACT Under the well-known principle that the law of limitation does not apply to a defence, a defence raised under this section is not subject to any rule of limitation. Section 53-A does not provide for any limitation on expiry whereof the defence contemplated in the section will be lost or will extinguish. Limitation bars the remedy but not the right in possession. Thus law of limitation does not apply to S. 53A. A perusal of S.53-A shows that it does not forbid a defendant- transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though period of limitation for bringing a suit for specific performance has expired.48 The doctrine of part performance is a doctrine of equity. Delay defeats equity. Therefore when the agreement of sale becomes unenforceable by reason of law of limitation, the defence of part performance founded on the agreement cannot be permitted to be enforced as the agreement has lost all efficacy inasmuch as the right to enforce it is lost by the law of limitation. The doctrine of part performance cannot be permitted to be invoked in these circumstances.49

44

. Hari Prasad v Hanmantrao (1936) ILR Nag 115, 170 IC 554, AIR 1937 Nag 74. . Murlidhar v Tara AIR 1953 Cal 349. 46 . Sakharam v Sitaram AIR 1952 Nag 244. 47 . Sakharam v Sitaram AIR 1952 Nag 244. 48 . AIR 2002 SC 960 : 2002 AIR SCW 659 49 . ILR (1988) Kant 631, AIR 2008 Kant 157 45

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UNDERSTANDING SECTION 53-A PARA.1 “Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the necessary to constitute the transfer can be ascertained with reasonable certainty, ......”

(A) “contracts to transfer for consideration” These words exclude gifts. A gift does not involve a contract, and even before the enactment of the section, it was held that the doctrine of part performance did not apply to gifts. 50 Moreover, a gift is complete on acceptance, subject to registration.51 In a Calcutta case,52 the doctrine was applied to an antenuptial gift; but the case was regarded as one of contract, the court treating the antenuptial promise of the bride's father as becoming a binding contract when the marriage followed. The section applies to a contract of dower governed by Mahomedan law, where the bride is in possession and has married in performance of the contract.53 TRANSFERS AND AGREEMENTS COVERED BY THIS SECTION The section applies to leases and agreement to lease.54 Where an agreement to lease is evidenced by correspondence, the lessee is put in possession, and there has been the acceptance of rent by the lessor for several years, the Supreme Court held that the section was applicable, and the lessee could defend the suit for ejectment.55 However, in a case from Delhi for the renewal of lease, oral negotiation were carried out between the parties. The draft lease was prepared, but was not signed by either of the parties. It was held that no concluded contract came in to existence, and the suit for specific performance is not maintainable.56 In another case, the court held that s 53A was not applicable to a lease agreement.57 A lease of property being distinct from the transfer of property, s 53A is not applicable.58 It also applies to usufructuary mortgages, and mortgages with possession.59 It does not, however, apply to a family arrangement, which does not involve a transfer of property,60 or to a partition, which

50

. 4 Kuchwar Lime Stone Co v Secretary of State (1936) ILR 15 Pat 460, 163 IC 507, AIR 1936 Pat 372. . SN Banerji v Kuchwar Lime & Stone Co Ltd (1941) ILR 21 Pat 24, (1942) All LJ 149, 44 Bom LR 324, 46 Cal WN 374, (1942) 1 Mad LJ 1, 197 IC 399, AIR 1941 PC 128; Maung Ba v Maung Kywe (1928) ILR 6 Rang 125, 110 IC 735, AIR 1928 Rang 124; Osman Gazi v Hemanta Kumar (1969) 74 Cal WN 355. 52 . Ram Gopal v Custodian [1966] 2 SCR 214, AIR 1966 SC 1438, [1966] 2 SCJ 782 53 . Technicians Studio Pvt Ltd v Lila Ghosh AIR 1979 SC 2425, (1979) 4 SCC 324, [1978] 1 SCR 516. 54 . Mastram v Ma Ohn 154 IC 769, AIR 1934 Rang 284 55 . Kaur Ram v Chaman Lal (1900) 154 IC 1088, AIR 1934 Lah 751; Ramchander v Maharaj Kunwar AIR 1939 All 611; Etah Municipality v Moradhuj 189 IC 819, AIR 1940 All 340. 56 . Ram Gopal Reddy v Additional Custodian Evacuee Property, Hyderabad AIR 1966 SC 1438. 57 . Patel Natwarlal Rupji v Kondh Group Kheti Vishayak (1996) 7 SCC 690, AIR 1996 SC 1088; S P Munnuswami Gounder v Ersu Gounder AIR 1975 Mad 25, (1974) 1 Mad LJ 499; NP Tripathi v Damayanti Devi & anor AIR 1988 Pat 123, p 125. 58 . Chetak Construction Ltd v Om Prakash AIR 2003 MP 145, p 150 59 . Delhi Motor Company v UA Basrurkar AIR 1968 SC 794, [1968] 2 SCR 720 60 . State of Uttar Pradesh v District Judge (1997) 1 SCC 496, AIR 1997 SC 53 51

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is not a transfer at all.61 It is doubtful whether the section applies to an agreement to transfer a partial interest in property, such as a right to win minerals, or to cut timber.62 The mortgagee cannot claim a right higher than what is provided in the ultimate document agreed to be executed, by invoking s 53A. In the case of an agreement to execute a mortgage for a definite period under which possession was handed over to the defendant, if the conditions of s 53A are satisfied, he will be entitled to get all the rights under the mortgage which are agreed to be executed, but cannot claim to continue in possession after the expiry of that period relying on s 53A. The general law of mortgages or the rights and liabilities of the mortgagor and mortgagee are not modified by s 53A.63 (B) “any immovable property” The section applies only to contracts to transfer immovable property. It does not apply to contracts to transfer movable property.64 Even under the English law, the doctrine was not applicable to contracts relating to movable property. In a case65 the immovable property in possession of the transferee was sold for recovery of taxes due on the property in possession of the transferee and the money realised was deposited in the Court. The transferor made a claim to the money. It was held that it could not be held that this section was inapplicable on the ground that the transferor was enforcing his right against the money and not against the immovable property, because unless the transferor could enforce his right against the property he could not enforce it against the money. (C) “by writing” The section only applies to a case where there is a written agreement. An oral agreement will not be sufficient.66 There seem to be two reasons for this limitation: (1) The occasion for the doctrine arises in India with reference to documents inissible in evidence for want of registration; and (2) The risk of perjuries, if an oral contract could be set up as a defence after limitation for a suit for specific performance had expired. Mere oral agreement does not create any interest or charge. The equitable right of S.53A of the TP Act cannot be claimed for restraining sale of the suit property, but can be sought for seeking protection against dispossession.67 Though the contract must be in writing, its existence and its may, in appropriate cases, be proved by secondary evidence, as when the original is in the possession or power of the transferor.68 It cannot, however, be proved from what purports to be its quotation in another document. 69 A writing 61

. Bhalkoo Ghaslya v Hiryabai AIR 1949 Nag 410. . Chetak Constmction Ltd v Om Prakash AIR 2003 MP 145. 63 . Sadashiv Chander Bhamgare v Eknath Pandharinath Nangude AIR 2004 Bom 378, p 384 64 . AIR 1957 Manipur 9 (13), AIR 2003 Del 15 (DB) 65 . AIR 1957 Andh Pra 854 (858,859) : ILR (1956) Andh Pra 1019 (DB) 66 . Chetak Construction Ltd v Om Prakash AIR 2003 MP 145, p 150. 62

67

. Delhi Motor Company v UA Basrurkar AIR 1968 SC 794, [1968] 2 SCR 720 . 60 State of Uttar Pradesh v District Judge (1997) 1 SCC 496, AIR 1997 SC 53. 69 . Bhalkoo Ghaslya v Hiryabai AIR 1949 Nag 410 68

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which may refer to some part or parts of a contract which is oral, is not sufficient.70 So also, a writing which referred by mistake to a different piece of land was held as not entitling a person to claim part performance.71 It is, however, not necessary that there should be a formal agreement.72 But when the of the agreement are reduced to a form of document, such document serves the purpose of this section.73 An operative document incorporating a previous oral agreement is sufficient, even if it comes into existence later;74 but a mere memorandum recording that possession was taken earlier under an oral agreement, is not.75 A written agreement cannot, however, be relied upon if its material have been subsequently orally varied.76 Where the recital indicating ing of possession was found to have been subsequently inter-polated in the deed of agreement, it was held that the interpolation by which the plaintiff could claim part performance under S.53A of the TP Act was a material alteration, and the plaintiff could not, therefore, enforce his right under that agreement.77 (D) “signed by him or on his behalf” The contract must be signed by or on behalf of the person sought to be charged under this section.78 It follows, therefore, that a kabuliyat, signed only by the lessee, does not entitle him to relief under this section.79 Where the lease deed, though ed, is not signed by the lessee, but possession had been delivered to the lessee, the lessee can claim the benefit of S. 53A,80 It had been held by the Madras,81 and Andhra82 High Courts that where such a contract was signed by another person as agent or karta of a t family, a plea of part performance could not be taken against the of the t family, unless it was expressly stated to be on behalf of the t family. This was erroneous and the decisions were criticised in earlier editions of this work. Both the decisions have been expressly overruled, the former by the Privy Council,83 and the latter by a Full Bench of the Andhra High Court.84 Where a contract is signed by a person, whose act would be binding on the real owner, the section applies.85 It has also been held that these words must be liberally construed,86 and such liberal construction is in accord with the English Law.87The position is, of course different, where A, who was part-owner of a property which had been leased by him to a firm of which he was a member, signed the contract not as part-owner but, as a member of the firm; the section could not be invoked against the other owner.88

70

. Chetak Constmction Ltd v Om Prakash AIR 2003 MP 145. . Sadashiv Chander Bhamgare v Eknath Pandharinath Nangude AIR 2004 Bom 378, p 384. 72 . AIR 1939 All 611 73 . AIR 1957 AP 854 74 . AIR 1985 P&H 195 75 . AIR 1952 Ori 143. 76 . AIR 1964 Raj 11. 77 . Juhar Mal v Kapur Chand AIR 1983 Raj 139 78 . Babu Ram v Basdeo AIR 1982 All 414, p 424, para 33 (following Pandit Ram Chander v Pandit Maharaj Kunwar AIR 1939 All 611). 79 . Ajab Singh v Jhabbulal (1949) ILR Nag 449, AIR 1948 Nag 67. 80 . Ekudashi v Ganga AIR 1981 All 373 81 . Savarkundla Nagarpalika v Maninagar Nivas Nirmal Sahakari Mandhi Ltd AIR 1981 Guj 243 82 . Ewaz Ali v Firdous Jehan AIR 1944 Oudh 212; Radhanath Swain v Madhusudan (1956) ILR Cut 42, AIR 1956 Ori 58 83 . Achayya v Venkata Subba Rao AIR 1957 AP 854; Akram Mea v Secunderabad Municipal Corp AIR 1957 AP 859; Maruti v Krishna (1966) ILR Bom 291, 67 Bom LR 761, AIR 1967 Bom 34. 84 . Delhi Motor Co v Basurkar [1968] 2 SCR 720, AIR 1968 SC 794, [1968] 2 SCJ 614. 85 . Maruti v Krishna AIR 1967 Bom 34. But see Palabha v Appalanarasamma AIR 1952 Ori 143. 86 . V Krishnaiah v N Narasimhareddy AIR 1976 AP 395. 87 . Salim v First Addl Civil Judge, Saharanpur AIR 1996 All 34 88 . Hemraj v Rustomji AIR 1953 SC 503. 71

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In granting relief under S.53A, the question whether the contract is specifically enforceable has no bearing at all, and the doctrine of part performance applies even if specific performance is not otherwise permissible.89 (E) “ necessary to constitute the transfer can be ascertained with reasonable certainty” A contract the of which cannot be ascertained with reasonable certainty, cannot be enforced.90 It is one of the necessary ingredients of s 53A that the of the written contract must be ascertainable with reasonable certainty. The emphasis on the word 'reasonable certainty' pre-supposes that the court should be in a position to judge the exact nature of the transaction, ie, the subject matter of the document. This is the foundational basis for s 53A, and in the absence of a document or a secondary evidence from which the court can ascertain the of that document with reasonable certainty, the defendants are not entitled to the benefit of the doctrine of part performance.91

PARA 2 “...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...”, Taken or continues in possession Section 53A applies to a person who contracts to transfer immovable property in writing. If the proposed transferee in the agreement has taken possession of the property or he continues in possession thereof being already in possession, part performance of the contract and has done some act in furtherance of the contract, and transferee has perfomed or is willing to perform his part of the contract, the transferor shall be debarred from enforcing any right in respect of the property.92 The section only applies to cases where the transferee is in possession under a contract to transfer immovable property. Sine qua non for taking shelter under s 53A is proof of possession.93 If the transferee has not taken possession, the section does not apply.94 In a case where a person claims benefit of part performance, evidence that he was inducted into possession for the first time subsequent to the contract, would be a strong piece of evidence regarding the contract, and of possession changing hands pursuant to the contract. Continuous possession of a tenant in the suit

89

. Balaram Jairam v Kewalram AIR 1940 Nag 396; Ranchod v Zipru (1954) ILR Bom 194, 55 Bom LR 890, AIR 1954 Bom 153; Bobba Suramma v P Chandramma AIR 1959 AP 568; Karunakar Das v Mahakuren (1959) ILR Cut 453, AIR 1960 Ori 170. But see Labhu v Shiv Ram (1939) 41 Punj LR 56, AIR 1939 Lah 57; Jagad Bhusan v Panna Lal AIR 1941 Cal 287, on Page 20 app (1943) ILR 1 Cal 56, 206 IC 624, AIR 1943 Cal 344. 90 . Srikakulam Subrahmanayam v Kurra Subba Rao 75 IA 115, (1949) ILR Mad 141, 50 Bom LR 646, (1948) All LJ 226, 52 Cal WN 706, (1948) 2 Mad LJ 22, AIR 1948 PC 95, reversing Subramanayam v Subba Rao AIR 1944 Mad 337; Amrao v Baburao (1950) ILR Nag 25, AIR 1951 Nag 405; Manglu Mehra v Sukru Meher (1950) ILR Cut 107, AIR 1950 Ori 217. 91 . Audinarayudu v Mangamma (1943) 2 Mad LJ 300, 56 Mad LW 502, AIR 1943 Mad 706 92 . Shashi Kapila v RP Ashwin (2002) 1 SCC 583, AIR 2002 SC 101 93 . S Parmuthai v P Muthusamy AIR 2004 Mad 450, para 19 94 . Thota Chima Subba Rao v Malapalli Raju (1949) FCR 484; Sanyasi Raju v Kamappadu AIR 1960 AP 83; Nila Padhan v Page 17 Gokulananda Padhi AIR 1950 Ori 118.

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property even after entering into the sale agreements would not by itself amount to a partperformance, putting the tenant in possession of the suit properties pursuant to the sale agreements.95 It is not necessary that the delivery of the possession must be at the instance of the vendor. The words used in the section are 'and the transferee has... taken possession'.96 It is not necessary, that the contract must contain a direct covenant regarding transfer of possession. It is only necessary that possession should have been taken in part performance of the contract.97 It is not necessary that the transferee must be in possession of the entire property agreed to be sold. It is enough if the transferee continues in possession or takes possession even of a part of the property.98Where the transferee was already in possession of immovable property under an agreement of sale, and the transferor accepted delayed payment of instalment under the agreement by the transferee, and the transferee was willing to perform his part of contract, the benefit under s 53A cannot be denied to the transferee.99 Temporary possession was given to the defendant for carrying out construction. It was held that the exclusive possession in the legal sense remained with the plaintiff, and the defendants were not entitled to protect their possession under s 53A of the TP Act.100 Act of Part Performance Repairs and improvements effected under a mortgage cannot be an act of part performance under a subsequent sale, as it is an act preliminary to a sale.101 The mere retention by a tenant,102 or a mortgagee in possession,103 of possession after the expiry of the original lease or mortgage is not an act of part performance. Similarly, possession obtained subsequent to the agreement, and not referable to it, is not an act of part performance 104. Where, however, the tenant remains in possession after the expiry of an old lease, and pays reduced rent, it is an act of part performance of the renewal of the lease at a reduced rent105.So also, where the person puts up a house soon after being put in possession under an uned contract of sale.106 The section does not apply when a mortgagee in possession continues in possession under an oral sale;107

95

. Chinnaraj v Sheik Davood Nachair AIR 2003 Mad 89, para 15. . Nagar Khan v Gopi Ram AIR 1976 Pat 2 97 . Balkrishna v Ranganath (1950) ILR Nag 613, AIR 1951 Nag 171; Bobba Suramma v P Chandramma AIR 1959 AP 568. See further note (15) below. 98 . Durga Prasad v Kanhaiyalal AIR 1979 Raj 200 99 . Teja Singh v Ram Prakash Talwar AIR 1984 P & H 95. 100 . RK Apartments P Ltd v Arun Bahree (1999) 77 DLT 193 101 . Kukaji v Basantilal AIR 1955 Madh Bh 93. 102 . Dakshinamurthi v Dhanakoti (1925) 48 Mad LJ 661, 87 IC 552, AIR 1925 Mad 965; Bhagwandas v Surajmal AIR 1961 MP 237. 103 . Pannalal v Labhchand AIR 1955 Madh Bh 49. 104 . Manjural Hoque v Mewajan Bibi (1956) 60 Cal WN 714, 97 Cal LJ 257, AIR 1956 Cal 350. 105 . Satyaniranjan Chakravarty v Habibur Sobhan 144 IC 598, AIR 1933 Cal 393. 106 . Naicker P v S Pillai AIR 1971 Mad 466. 107 . Ma Shwe Kin v Ka Hee (1924) 3 Bur LJ 211, 84 IC 514, AIR 1924 Rang 381 (the court also held that the possession was not referrable only to the contract). 96

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So, also, where a lessee retained possession after the expiry of the lease, under a written agreement to purchase the property, for which he had paid the consideration.108 For a tenant continuing in possession of an immovable property after a contract to transfer, written and signed by the landlord, to get the protection under s 53A, it is necessary to show that he continues in possession in pursuance of the contract. Mere continuance in possession does not satisfy the requirement of s 53A.109 The act in question must be referrable to the contract alleged to have been partly performed.110 In two cases,111 however, the doctrine was wrongly applied to oral sales to persons in possession, though there was no act done in furtherance of the contract for sale. It has been held that the advancing of moneys for the purchase of stamp paper for the conveyance, was an act of part performance.112

PARA3 “.. and the transferee has performed or is willing to perform his part of the contract..” “...has performed or is willing to perform...” The section confers no rights on a party who was not willing to perform his part of the contract.113 A transferee has to prove that he was honestly ready, and willing to perform his part under the contract114. A prospective vendee who had taken possession could not resist dispossession, if he were not willing to pay the price agreed upon.115The High Court of Karnataka has pointed out that in order to substantiate the plea of part performance, the defendant who takes this plea must assert that he had demanded specific performance within the stipulated time. Plea of part-performance is not available in case one fails to plead in his written statement that he ready and willing to perform his part of contract.116 Failure to take this plea would mean that he did not show readiness and willingness to perform his part of the contract.117 The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the of the agreement, and is willing to perform his part of the contract. Part performance, as a statutory right, is conditioned upon the transferee's continuous willingness to perform his part of the contract in covenanted thereunder.118

108

. Annamalai Goundan v Venkataswami Naidu (1959) ILR Mad 796, (1959) 1 Mad LJ 301, AIR 1959 Mad 354. See, however, Mallappa Bhimanna v Land Tribunal (1979) 2 Kant LJ 218 and Mallanna v Abdul Nabi & ors AIR 1986 Kant 221, p 223. 109 . Sunil Kumar Sarkar v Aghor Kumar Basu AIR 1989 Gau 39. 110 . Ranchhoddas Chhaganlal v Devaji Supdu AIR 1977 SC 1517, [1977] 2 SCR 621, (1977) 3 SCC 584. 111 . Naganna v Appalaraju 129 IC 59, AIR 1930 Mad 1021; Husaini Begum v Sultani Begum 105 IC 479, AIR 1927 Oudh 485. 112 . Devisahai v Govindrao AIR 1965 MP 275. 113 . Chinnaraj v Sheik Davood Nachair AIR 2003 Mad 89 114 . Sunder Bai v Naint Ram AIR 2003 MP 268, para 9. 115 . Bechardas v Ahmedabad Municipality AIR 1941 Bom 346; Sulleman v Patel (1933) 35 Bom LR 722, 145 IC 557, AIR 1933 Bom 381 not followed Bhagwati Lal v Shri Krishan Chandra AIR 1994 Raj 331 (NOC). 116 . Hukma v Manga AIR 2003 P&H 287 117 . M Mariyappa v AK Satyanarayana AIR 1984 Kant 50. 118 . Mohan Lal v Mira Abdul Gaffar AIR 1996 SC 910

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Willingness to perform the roles ascribed to a party in a contract is primarily a mental disposition. However, such willingness in the context of s 53A of the TP Act must be absolute and unconditional.119If willingness is studded with a condition, it is in fact no more than an offer, and cannot be termed as willingness. Where the vendee company expresses its willingness to pay the amount, provided the plaintiff clears his income tax arrears, there is no complete willingness, but a conditional willingness or partial willingness which is not sufficient to arm the company with the shield provided under s 53A of the TP Act.120

PARA 4 “then, notwithstanding that [...]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 of the contract..” “then” Section 53A makes it clear by employing the word 'then' after laying down the pre-requisites that a transferee can seek refuge under it only after satisfying the other pre-requisites.121 Though the contract is not ed These words expressly supersede the provisions of the Registration Act 1908. Under the proviso added to s 49 of the Registration Act 1908, uned documents are issible as evidence of part performance. However, by the amendments made by the Registration and Other Related Laws (Amendment) Act 2001, which has come into force with effect from 24 September 2001, as already noticed above, the words 'the contract, though required to be ed, has not been ed, or,' as appearing in para 4 of s 53A has been omitted. Simultaneously, ss 17 and 49 of the Registration Act 1908 has been amended making it clear that unless the documents containing contract to transfer for consideration any immovable property for the purpose of s 53A is ed, it shall not have effect for the purposes of s 53A. Where there is an Instrument of Transfer The case of an instrument of transfer is put in the alternative. The amendment to s 49 of the Registration Act 1908 shows that the section applies although there is not a distinct and separate contract in writing. The instrument itself is treated as the contract in writing, as was done by CJ Jenkins in Puchha Lal v Kunj Behari Lal . 122

119

. Chinnaraj v Sheik Davood Nachair AIR 2003 Mad 89, para 16e. . Jacobs Private Limited v Thomas Jacob AIR 1995 Ker 249 121 . Jacobs Private Limited v Thomas Jacob AIR 1995 Ker 249. 122 . (1913) 18 Cal WN 445, 20 IC 868. 120

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In order that the doctrine of part performance may be invoked, it is necessary that the acts of part performance must be such as not only to be referable to the contract of which the part performance is alleged, but to be referable to no other title.123 After the amending Act of 2001, unless the documents containing contract to transfer for consideration any immovable property for the purpose of s 53A is ed, it shall not have effect for the purposes of s 53A. The section does not any more apply to an uned instrument. However, even prior to the above amendment, it was held that the section would not apply if the instrument is unsigned, or if it cannot be proved for some other reason, eg, if the original is unstamped and lost so that secondary evidence, is inissible, as in Hiralal v Shankar .124

PROVISIO: “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.” Transferee for Consideration without Notice The purpose of proviso is to defeat a claim which would otherwise, have succeeded under the main part of the section. The question of this proviso does not arise until and unless the claimant has substantiated his claim under the main part of the section. If the defendant fails to establish the requirements of s 53A, the proviso would not come into the picture at all, irrespective of whether transferee has notice of the defendant's agreement or the part performance thereof, he will be entitled to succeed.125 The proviso to the section saves the right of a transferee for consideration who has no notice of the contract or its part performance.126 The burden of proving that he is a transferee for consideration without notice is on the transferee.127This was so held prior to the enactment of s 53A. As to what constitutes notice, has been discussed in s 3 above. It has been held that possession by the earlier transferee would operate as notice; the court relied on illustration 2 to s 27(b) of the Specific Relief Act 1877.128The Specific Relief Act of 1963, re-enacts the section as s 19(b), but contains no illustrations. In a Rajasthan case, it was held that though the burden of proving that the subsequent transferee had notice of the prior contract lay on the defendant (who claimed the benefit of part performance), the subsequent transferee must be taken to have implied notice of the agreement (to sell) and of part performance, because since the defendant was ittedly in possession, the transferee would have had notice of the title of the defendant, but for wilful abstention from inquiry. In this case, the defendant was in possession as mortgagee and agreed to purchase.129

123

Thakamma Mathew v M Azamathulla Khan (1993) 49 DLT 249. . (1921) ILR 45 Bom 1170, 62 IC 637, AIR 1921 Bom 401. 125 . S Veerabadra Naicker v S Sambanda Naicker AIR 2003 Mad 19, paras 29 & 31; Prova Rani v Lalit Mohini AIR 1960 Cal 541, para 5; Yasodammal v Janaki Ammal AIR 1968 Mad 294. 126 . Hemraj v Rustomji AIR 1953 SC 503; Dayawati v Madan Lal Verma AIR 2003 All 276, para 20. 127 . Prova Rani v Lalit Mohini AIR 1960 Cal 541; Mahadei Halua v Ram Krishna AIR 1960 Pat 354. 128 . Mahadei Halua v Ram Krishna AIR 1960 Pat 354. 129 . Asharam v Bhanwarlal AIR 1974 Raj 188. 124

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Nature of Right: Available Only as a Defence The Privy Council in Probodh Kumar Das v Dantmara Tea Co has held that the right conferred by s 53A is a right available only to the defendant to protect his possession. The section is so framed as to impose statutory bar on the transfer; it confers no active title on the transferee. Indeed any other reading of it would make serious inroad on the whole scheme of the TP Act. The above law laid down has been followed with approval by Supreme Court in Technicians Studio Pvt Ltd v Leela Ghosh .130 It has been held that part-performance in India does not give rise to equity as in England, but to a statutory right which is a comparatively restricted right. In that, it is available only as a defence. It has been held that s 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 under s 53A only a right to defend his possession. It can be used only as a defence. This section does not create a title in the defendant. It merely operates as a bar to the plaintiff asserting his title. It is limited to cases where the transferee had taken possession, and against whom the transferor is debarred from enforcing any right, other than that expressly provided by the contract. The section imposes a bar on the transferor. When the conditions mentioned in the section are fulfilled, it debars him from enforcing against the transferee any right or interest not expressly provided by the contract. So far as the transferee is concerned, the section confers a right on him to the extent it imposes a bar on the transferor. However, that is only a right to protect his possession against any challenge to it by the latter contrary to the of the contract. The section imposes a statutory bar on the transferor, but confers no title on the transferee. The 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.131 A transferee in possession under s 53A of the TP Act can ask for an injunction for the protection of his rights. He can claim injunction against the transferor restraining him from interfering with his possession. The Madhya Pradesh High Court has held that a transferee-in-possession satisfying all conditions of the section must be protected by the court, whether he comes as a plaintiff or as a defendant. The court cannot tell the transferee-in-possession if he comes as a plaintiff -- 'go back, use your physical strength and muscle power to resist and repel the attack of the transferor and drive him to come to the court as a plaintiff and then if you are arrayed as a defendant, the court will protect you.’

Plea of Part Performance The plea under s 53A, being a mixed question of law and fact, cannot be raised for the first time in second appeal by the respondent.132 In absence of a contract in writing, a party cannot be allowed to raise a plea of part performance.133

130

. (1977) 4 SCC 324, para 5, AIR 1977 SC 2425. . Ram Gopal v Custodian [1966] 2 SCR 214, AIR 1966 SC 1438, [1966] 2 SCJ 782. 132 . Hiralal Agarwala v Bhagirathi Gore AIR 1975 Cal 445. 133 . Kalawati Tripathi and ors v Damyanti Devi and anor AIR 1993 Pat 1, p 11 131

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Conclusion: Part Performance Not a Sword Some Indian decisions betray a misconception of the limited scope of the section. In this regard, the Superme Court has laid to rest all doubts, and held that the benefit of s 53A cannot be taken aid of by the transferee-plaintiff to establish his right as owner of the property.134 It has further been held that s 53A can be used as a shield, but not as an independent claim either as plaintiff, or as a defendant. It is a 'weapon of defence and not attack'. No doubt s 53A creates a right in favour of transferee to defend his possession. But if he is forcibly ejected by the transferor, he can file a suit for recovery of possession not pursuant to s 53A, but under s 6 of the Specific Relief Act 1963. However, the Madhya Pradesh High Court has held that a transferee-in-possession satisfying all conditions of the section must be protected by the court, whether he comes as a plaintiff or as a defendant. A Full Bench of Bombay High Court has held that when it is said that proposed transfereein-possession can use s 53A as a shield, but not as a sword, it means that he can use s 53A either as a plaintiff or as a defendant to protect his possession, but he cannot use s 53A either for getting title or for getting possession if he is not actually in possession. In other words, when the transferee-in-possession comes to the court as a plaintiff seeking a decree of perpetual injunction against the transferor, he is using s 53A as a shield to protect his possession. According to the Allahabad High Court, s 53A applies to the transferee, even if he is a plaintiff. Further, it applies not only where the transferee is physically in possession on the date of suit, but also where he has been illegally dispossessed by some person claiming under the transferor.

134

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. Ram Gopal Reddy v Additional Custodian Evacuee Property, Hyderabad AIR 1966 SC 143

BIBLIOGRAPHY BOOKS REFERRED: 1. Mulla, The Transfer of Property Act, 2006 , 10 Edition ,LexisNexis 2. Manohar & Chitaley, Commentary on the Transfer of Property Act, 1st Edition, All India Reporter Pvt. Ltd.

ONLINE SOURCES: www.lexisnexis.com.elibrarydsnlu.remotexs.in

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