TRANSFER OF PROPERTY ACT, 1882

PROJECT REPORT ON

SECTION 53-A

PART PERFORMANCE

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 DEFINITION – SECTION 53-A
1[53A. Part performance.—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 2[***] 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: 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.]

SCOPE
Section 53-A can be divided into following five paragraphs:
 First, says about the transferor and conditions that concern him.
 Second and third talks about the transferee; what he should do to get protection of
section 53-A.
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  Fourth para describes the nature of protection that is given by doctrine of part-
performance.
 Fifth para is a proviso protecting bona fide purchaser for value without notice from
part performance doctrine.
APPLICABILTY
 So far as applicability of sec 53-A of the 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 section 53-A.
 That protection is available, only against the transferor; the proposed vendor would
disentitle him from disturbing the possession of the proposed transferee who is put in
possession pursuant to such an agreement.
 But 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
transferee.
The following postulates are sine qua non for basing a claim on sec 53-A of TPA :
i. The contract should have been in writing signed by transferor.
ii. The transferee should have got possession of the immovable property covered by
the contract.
iii. The transferee should have done some act in furtherance of the contract.
iv. The transferee has either performed his part of the contract or is willing to perform
his part of the contract.

DOCTRINE OF PART PERFORMANCE

Doctrine of part performance in an equitable doctrine. It is also known as “equity of part

performance.’

Under this doctrine, if a person has taken possession of an immovable property on the basis
of a 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 legal title has not been transferred to him.

For instance,

There is a contract of sale of a piece of land between A and B. the contract is in writing,
stamped, attested and duly executed but not registered by A who is the seller. B, who is

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the purchaser, has performed or is willing to perform his part of the contract i.e. has paid the
price or is willing to pay the same. On the basis of such contract B takes possession of the
land. Now, A sells the land to C through a registered deed. C having legal title of the land,
attempts to eject B.

At this stage, since B has no legal title, law may not protect his possession but, equity shall
help him from the being dispossessed.

The doctrine of part performance is, therefore, based on the maxim:

“EQUITY LOOKS ON THAT AS DONE WHICH OUGHT TO HAVE DONE.”

That is to say, equity treats the subject matter of a contract as to its effects in the same manner
as if the act contemplated in the contract had been fully executed, from the moment the
agreement has been made, through all the legal formalities {e.g. of registration} of contract
have not been yet completed.

ENGLISH LAW ON 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, 1667.
 Section 4 of this act provided that all agreements in respect of transfer of lands must
be in writing. Under this provision, the transfer of immovable property on the basis of
oral agreement was illegal and transferee could not get title in the land.
 Although the statute was of frauds it was enacted to avoid fraud being played in the
transfer of lands on oral agreements but, strict application of this law created great
hardship to such transferee.
 In this way, bona fide transferee who performed his part of contract by paying the
price in full or in part and who had also taken possession of land could not get title
merely because of the absence of legal formalities; such transferee were helpless and
were being harassed.
 Equity then came to their help. Chancery courts, which were the courts of equity,
held that part performance by such transferees would take their cases out of the
statute of frauds. Thus, equity protected the interest of those transferees who
held the lands on the basis of oral contracts and had performed their part of
contract.
 Since then, the equity of part performance developed further and passed through
several stages for protecting the interests of the transferees who had performed their

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 part in contract in good faith and the transferor attempts to harass them on the ground
of technical defect in the contract.

The English equity of part performance is well illustrated in Maddison v. Aldersons1 which
is a leading case on this doctrine. In this case, Lord Selbourne explains the doctrine in the
following words:

“In a suit founded on such part performance, the defendant is really charged upon the
equities resulting from the acts done in execution of the contract, and not (within the meaning
of the statute) upon the contract itself. If such equities were excluded, injustice of a kind
which the statute cannot be thought to have had in contemplation, would follow.”

According to this doctrine, where a person has taken possession of immovable property on
the basis of a contract of sale and he 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 sale was
unregistered and legal title has not been transferred to him.

SECTION 53 A IS A PARTIAL IMPORTATION OF ENGLISH EQUITY ON PART

PERFORMANCE.

Section 53-A incorporates the doctrine of part performance. This section was included in
transfer of property act by the amending act of 1929. Before this amendment, there was no
enacted law in India on this subject. The Anglo-Indian courts used to apply English equitable
doctrine of part performance to Indian cases. But, the application of English equity to Indian
cases was neither certain nor uniform. In some cases the English law was applied as such i.e.
there was total importation of English law of part performance to Indian cases. In other cases
it was not applied at all. Further, in some cases, the English law of part performance was
applied but with some modifications. A brief account of the application of English equity of
part performance in India before 1929 is given below:

1
(1883) 8 A.C 467.

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 PART PERFORMANCE IN INDIA BEFORE 1929

Before 1929, the application of English equity of part performance was neither certain nor
uniform. In some cases it was applied whereas in other cases it was not applied.

In Mohammad musa v. aghore kumar ganguli2

The privy council held that:

Equity of part performance could be applied to Indian cases just as it was being applied in
English.

FACTS

 In this case, there was a compromise deed (razinama) which was in writing but not
registered.
 Under this deed there was division of certain lands between parties who had taken
possession over their respective parts of the land on the basis of the said compromise
deed.
 The parties continued possession over their lands for many years. After about forty
years, the heirs of the parties repudiated the razinama on the ground that it was not
registered.

The Privy Council applied the doctrine of English equity of part performance as stated in
maddison v. alderson and held that although the razinama was unregistered but, since it was
in writing, it was a valid document and could not be repudiated.

DECISION

Their lordships of the Privy Council observed:

“They do not think that there is anything either in the law of India or of English inconsistent
with it (the doctrine of part-performance) but, on the contrary that these laws follow the
same rule. “The effect of this decision was to by-pass the provision of the Indian Registration
Act, 1908 under which it is provided that a document required to be registered under this act
but not registered shall not be a valid document of transfer of rights in immovable property.”

2
(1914) 42 cal. 801; 28 I.C. 930

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But, later on in Ariff v. jadunath3, the Privy Council changed its opinion and held that,

The doctrine of part performance could not be applied in India to override or by-pass the
express provision of Indian Registration Act, 1908 and Transfer of Property Act.

FACTS

 The lease was oral; it was neither executed nor registered.

 But on the basis of this oral agreement the defendant took possession of the land and
also made buildings on that land.
 After about ten years, the plaintiff refused to grant the lease and sought to evict the
defendant treating him as a tenant on month to month basis.
 Following Mohammad Musa’s decision of the Privy Council, the Calcutta High Court
applied the doctrine of Part-Performance and gave its judgment in favor of the
defendant.
 The plaintiff then went in appeal to the Privy Council which reversed the decision of
the Calcutta high court.
 The Privy Council in this case treated Mohammad musa’s case as merely an obiter
and observed that this was no authority for India.

DECISION

Their lordships held that the doctrine of part performance could not be applied against
express provisions of statutory laws such as the Transfer of property Act, and the
Registration, Act. Under section 107 of the TPA, a permanent lease could be granted only by
a written and registered document; an agreement against such enacted law could not be held
valid under this doctrine.

Giving reasons Privy Council observed:

“Whether an English equitable doctrine should in any case be applied so to modify the effect
of an Indian Statute may well be doubted; but that as English equitable doctrine affecting the
provisions of an English Statute (of Fraud) relating to the right to sue upon a contract,
should be applied by analogy to such a statute as the TPA and with such a result as to create,
without any writing, an interest which the statute says can only be created by means of a
registered instrument, appears to their lordships, in the absence of some binding authority to
that effect, to be impossible.”

3
A.I.R 1934 P.C. 235.

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It is significant to note that in this case the Privy Council did not apply the English equity of
part performance mainly on two grounds:

1. The agreement for lease was oral, and

2. This was in express violation of the provisions of statutory law namely, sec 107, of
the TPA.

After this case the next case which came before the Privy Council was Mian Pir Bux v.
Sardar Mohhamad Tahir.4

In this case to defendant had taken possession over a land on the basis of an oral agreement
for sale. On being evicted by the plaintiff he took the defense of part performance. The Privy
Council, while rejecting his plea held that English equity of part performance was not
available in India against expresses statutory provisions regarding registration contained in
the Registration Act, and the Transfer of Property Act.

From the above mentioned discussions it is clear that the Anglo Indian courts and the Privy
Council were in favor of this equity in India with some modifications. Application of English
equity in India was therefore, neither uniform nor certain. It was, necessary to enact law on
this subject. Accordingly, section 53-A was included in the transfer of property Act by the
Amending Act of 1929.

SPECIAL COMMITTEE ON PART PERFORMANCE

1. Since there was a difference of opinion on question of the application of English
equitable doctrine of part performance in various courts of India, the Govt. of India
resolved to set up a special committee for making recommendations on - whether the
British equitable doctrine of part performance be extended in India Also. The special
committee was of the view that an illiterate or ignorant buyer who had partly
performed his part of the contract required statutory protection. Further that where a
transferee in good faith avails that lawful instrument, i.e., a written contract would be
executed by the transferor, takes possession over the property, the equity demanded
that the transferee should not be treated as trespasser by the transferor and
subsequently evict him through process of law in the absence of lawful transfer
instrument.
2. The special committee also considered the question whether protection under the
proposed section 53-A to a transferee would also be available even if the period of
4
AIR 1934 P.C.235

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 limitation for bringing an action for specific performance of an agreement to sell has
expired. On the said question, the committee was of the view that even after expiry of
period of limitation, the relationship between the transferor and transferee remains the
same as it was within the period of limitation and, therefore, the possession over the
property taken in part performance of an agreement is required to be protected even if
the period of limitation for bringing an action for specific performance has expired.
The court are of the view that If the conditions enumerated in section 53-A are
complied with , the law of limitation does not come in the way of a defendant taking
plea under section 53-A.

The recommendation of the special committee was accepted by the govt. of India as the same
is well reflected in the aims and objects of amending act, 1929 whereby section 53-A was
inserted in the Act.

LEGAL EFFETS OF THE AMENDING ACT IN SECTION 53-A

 In Para fourth of section 53-A of TPA, the words “the contract though required to be
registered, has not been registered” has now been omitted.
This may mean mean to suggest that non registration of any contract to transfer for
consideration is not any relevant factor (i.e. not necessary) for the application of part-
performance under this section; and, the defense of part-performance is available also
on the basis of unregistered document.

But, this is not the case. The same amending act has simultaneously amended section 17
and section 49 of the registration act. Therefore, the amendment in section 53-A should be
read together with amendments in section 17 and section 49 of the registration act.

 In section 17 of the registration act, a new clause has been inserted (17-A), which
provides that written documents of the transfer of an immovable property with
consideration (e.g. sale) must be registered for the purpose of sec 53A of TPA, and, if
such documents are not registered then, they shall have no effect for the purposes of
section 53-A of the T.P.A.

Thus an obvious meaning of these amended provisions of section 53-A of TPA and section
17-A of registration Act is that:

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Section 53-A shall not be applicable and the defense of part performance cannot be available
on the basis of un-registered documents which are executed on or after 24-09-2001,

Therefore the contract of the transfer of immovable property with consideration as provided
in section 53-A is now compulsorily registrable document.

 Also, the proviso of section 49 of the registration act, which deals with the effect of
non registration documents, required to be registered. The word, “as evidence of part
performance of a contract for the purpose of section 53-A of the TPA” has been
omitted by the amending Act. Accordingly, the present proviso of sec 49 of the
registration act is:
“provided …. an unregistered document affecting immovable property and required
to be registered under the registration Act or the TPA, may receive as evidence of the
part performance or of any collateral transaction not required to be affected by
registrated instrument.”

This proviso of section 49 of the registration Act may be interpreted to mean that an un-
registered document (e.g. written agreement for sale) has an evidentiary value in the eyes of
courts for the purposes of proving any ‘collateral transaction’. Such collateral or related
transaction means ‘nature of the possession’ (i.e. whether the possession is actual or
constructive?) thus although an un-registered document has no value in the court for the
purpose of 53-A (a substantive right to defend possession) but the courts may accept the
evidence of factual position of the possession of the property in question.

In a nutshell, the amendments of section 17 and section 49 of the registration act has now
incorporates the law which fulfils the real purpose of amending section 53-A of the transfer
of property Act. The object or the real purpose of these amendments is that there should not
be any perpetual possession of an immovable property evading law of registration.

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 ESSENTIAL CONDITIONS FOR APPLICATION OF SECTION 53-A

Analysis of the provisions of section 53-A makes it clear that following essential conditions
are necessary for its application:

1. There is a contract for the transfer of immovable property.

2. The transferee takes possession of the property under this contract.
3. 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 property. The above mentioned essentials are discussed in detail below.

CONTRACT FOR TRANSFER OF IMMOVABLE PROPERTY

For the application of this section, the first condition is that there must be a contract for the
transfer of immovable property for value.

WRITTEN CONTRACT

The contract must be written. Section 53-A is not applicable if the contract for transfer is oral.
There seems to be two reasons for this limitation:

1. The occasion for the doctrine arises in India with reference to documents inadmissible
in evidence for want of registration; and
2. The risk of perjuries if an oral contract could be set up as a defense after limitation for
a suit for specific performance had expired.

In Leprosy mission v. N.V.V. satyanarayana Reddy,5 there was neither any written
contract of the transfer of immovable property nor was any evidence on which date the
property was delivered to transferee. The Andhra Pradesh HC held that, the transferee’s
possession was not valid under the law and section 53-A is not applicable.

Writing alone is not sufficient. The contract must also be duly executed. That is to say, it
should be signed by the transferor or by any other person on his behalf. The person who signs
on his behalf must be a person who is authorized by him to sign the document. Therefore, it is
necessary that the contract is either actually signed by the transferor or is signed by a person
who has been specifically been authorized to sign on behalf of the transferor and whose
signature can bind the transferor.
5
AIR 1998 A.P. 285.

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Further, the written contract on the basis of which the property has been possessed, must
clearly suggest the transfer of property. If the document is ambiguous or confusing, this
section cannot be made applicable. It is one of the necessary ingredients of section 53-A that
the terms of the written contract must be ascertainable with reasonable certainty. A contract
the terms of which cannot be ascertained with reasonable certainty cannot be enforced.

The emphasis on the word ‘reasonable certainty’ presupposes that the court should be in a
position to judge the exact nature of the transaction i.e. the subject matter of the document.
This is the foundational basis for s 53-A and in the absence of a document or a secondary
evidence from which the court can ascertain the terms of that document with reasonable
certainty, the defendants are not entitled to the benefit of the doctrine of part performance.

In Mool Chand Bakhru v. Rohan6 the SC held that an express written agreement for the
transfer is Sine qua non for the applicability of the equitable doctrine of part performance as
laid down in section 53-A of the act.

FACTS

 The owner of the property (vendor) alleged to have written letters to the proposed
vendee, (having possession of the property) admitting that he had agreed to sell his
half share of the property for a sum or Rs. 15,000 out of which Rs. 10,000 was
received by him.
 In each of these letters the vendee was asked to pay the balance amt. Rs. 5000 as he
was in need of money. But the vendee failed to do so.
 Ultimately the vendee wrote a letter to the vendee in which he repudiated the so called
agreement to sell saying that vendee has failed to perform his part of the agreement.
 However on the basis of these letters the vendee claimed protection of his possession
over the property.

DECISION

The Supreme Court held that the letters written by the vendor cannot be treated as an
agreement to sell the terms of which have been reduced to writing. The SC observed further
that at the most it is an admission, of an oral agreement to sell and not a written agreement,
accordingly, the proposed vendee could not protect his possession of the immovable property
under section 53-A.

6
AIR 2002 SC 812

12 | P a g e
Besides being an express agreement for sale, the agreement must also be perfect and genuine
in all respect. For example, the signature of the executants must also be fully established to be
authentic.

TRANFER FOR CONSIDERATION

The written contract must be for the transfer of an immovable property for consideration.
Section 53-A is applicable where the contract is for sale or for the lease. The section is
applicable also to usufructuary mortgages or mortgages with possession. But this section does
not apply where the transfer is without consideration. Therefore, it is in applicable to gifts.

An agreement without consideration being void under section 23 of the contract act, it cannot
become a source of protection of possession under the section.

It may be noted that section 53-A is applicable only where the contract for the transfer is
valid in all respects. It must be an agreement enforceable at law under the Indian contract act,
1872. The contract on the basis of which the transferee takes possession over the land must
also be a complete and valid document of transfer. It must be in writing, signed, attested and
duly stamped, the contract must be complete in all respects including registration.

POSSESSION IN FUTHERANCE OF CONTRACT

The second essential requirement is that the transferee has taken possession or continues
possession in part performance of the contract or, has done some act in furtherance of the
contract. It is necessary that the transferee has taken possession of the immovable property on
the basis of the contract or incomplete deed of transfer. However it is irrelevant as to whether
the vendor himself has given the possession or not.

The possession must be taken only on the basis of the contract or deed of transfer. This means
that possession must be taken in furtherance of such contract, or, it must be taken in part-
performance of the contract. The transferor has performed his part of contract by executing it
and has otherwise completed it except registration.

The condition is that the transferee has taken possession in furtherance of or in part-
performance of contract. Where the transferee has once taken possession of the property, the
fact that subsequently he lost that possession cannot deprive him of his rights under section
53-A.

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The transferee need not be in possession of the whole property mentioned in the contract of
sale. If the transferee takes possession or continues his possession even on a part of that
property, it is sufficient to give him the benefit of this section.

When the transferee is already in possession of the property in some other capacity and the
other essential requirements of this section are fulfilled then, this section shall entitle him to
continue that possession. However mere continuance of possession on same ground shall not
be sufficient; the possession must be continued on the basis of i.e. furtherance of contract of
sale.

In Sunil v. Aghor, the Gauhati HC, held that for a tenant continuing in possession of an
immovable property after a valid contract of transfer, it is necessary for him to show that he
continues in possession in pursuance of that contract of transfer. Without this, he cannot get
the benefit of this section.

In Roop singh v. ram singh,7 the SC held that once it is admitted by implication that plaintiff
came into possession of land lawfully and continued to remain In possession till the date of
suit, the plea of adverse possession and retaining possession by operation of section 53-A are
inconsistence with each other.

SOME ACT IN FUTHERANCE OF CONTRACT

Taking possession is not the only method of part performance of contract. In order to attract
the provision of section 53-A, if the defendant has been in possession of the property he must
have done something more in pursuance of the contract. For eg. Where transferee was
already In possession of the property, payment of an increased rent under the terms of new
agreement or, part payment of price where the property is agreed to be sold to a mortgagee in
possession, is a ‘further act’ in part performance of the agreement.

It is also necessary that the act done is only in furtherance of a pre-existing valid contract.
There must be direct co- relation between the cont. and the act done, in its furtherance.
Anything done anterior to the cont. or merely incidental to the terms of the contract shall not
be regarded as an act in furtherance of the contract of sale.

In D.S Marvathamma v. A. Srinivasan,8 a tenant claimed himself to be in possession of the

house in part performance of mutual agreement between the parties. The suit for specific
7
AIR 2000 SC 1485
8
AIR 2003 SC 3542

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performance was, however dismissed. The tenant could not prove, on record, that he was
ready and willing to perform his part of agreement. Moreover, he was also not shown to have
delivery of possession of property in part performance. The SC held that on the basis of these
facts, the doctrine of part performance could not be applicable and his (tenant’s) possession
could not be protected under section 53-A.

TRANSFEREE IS WILLING TO PERFORM HIS PART OF CONTRACT

Section 53-A is based on the principles of equity. Equity says that one who seeks equity must
do equity. Therefore, where a person claims protection of his possession over a land under
section 53-A his conduct must be equitable and just. It is an essential condition for the
applicability of this section that the transferee must be willing to perform his part of the
contract.

Equity of part performance which is incorporated in this section cannot favor a transferee
who is not ready and willing to do what is required for him. Accordingly, a vendee who has
taken possession of the property cannot protect his possession under this section if he is not
willing to pay the price agreed upon.

Willingness to perform the part ascribed to a party must not be conditional. In Jacob private
ltd. V. Thomas Jacob,9 the Kerala HC held that such willingness in the context of section 53-
A of the TPA must be absolute and unconditional. If the willingness is studded with a
condition, it is in fact no more than an offer and cannot be termed as willingness. The court
observed that where a vendee company expresses its willingness to pay the amount provided
the plaintiff clears his income-tax arrears, there is no complete willingness and such a
conditional willingness is not sufficient to arm the company with the shield provided by
section 53-A of the TPA.

It is not necessary that the transferee should plead his ‘willingness’ in each and every case.
Such willingness may ‘be inferred from his conduct.’ In judging willingness to performance,
the court must consider the obligations of the parties and the sequence in which they were to
be performed.10 In Teja Singh v. ram Prakash Talwar,11 the transferee was already in
possession of the property under an agreement to sale. The transferor accepted the payment of
installments by transferee which was delayed as agreed, but the transferee was willing to

9
AIR1995 ker.249
10
Mulla; Transfer of Property Act, Ed. VI,p.281
11
A.I.R. 1984 P&H.95

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perform his part of the contract by making payment of the remaining installments. The P&H
HC held that the benefit under section 53-A cannot be denied to the transferee.

The doctrine of readiness and willingness is an emphatic way of expression to establish that
the transferee always abide by the terms 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 terms covenanted there under.

NATURE OF TRANSFEREE’S RIGHT UNDER SECTION 53-A

a. NO TITLE OR INTEREST IN PROPERTY

Section 53-A does not confer any title or interest to the transferee in respect of the property in
his possession. This section provides that when the conditions laid down in it are fulfilled, the
transferor or any other person cannot evict the transferee. In the event of being evicted he can
raise the defense of equity of part- performance. And section 53-A would protect his right to
continue the possession. Except the right to continue his possession, no other interest or title
is created in favor of the transferee. This section therefore imposes a statutory bar on the
transferor (i.e. he cannot dispossess transferee) but does not confer any title on the transferee.

The transferee can get the title of the property under the contract of sale only after its
registration. Section 53-A entitles the transferee merely to protect his possession. So, this
section does not defeat the provisions of the registration act.

Section 53-A does not affect the ownership rights of the proposed transferor who remains full
owner of the lands till they are legally conveyed by sale deed to the transferee, he continues
to be the owner of lands for all proposes.

b. PASSIVE EQUITY; NO RIGHT OF ACTION

Section 53-A does not give transferee any right of action. It provides merely a right of
defense. That is to say where a transferee takes possession of an immovable property, he can
raise the defense of part performance in case he is evicted by transferor or any other person.
He is not entitled to restrain the transferor from transferring the property from to any other
person.

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In India the equity of part performance is a passive equity: it can only be used only as a
shield not as a sword. The scope of this section is limited because no right of action is
available to transferee.

PRABODH KUMAR DAS V. DANTAMARA TEA Co. Ltd.12

It is a leading case dealing with the nature of rights of transferee under Section 53-A. the
facts and the law laid down are given below:

FACTS

Gillanders &co. agreed to sell a tea estate to one S.N. Roy. The agreement was not registered.
But, S.N.Roy paid the first installment of the consideration and took possession. Later on the
Gillanders & co. sold the tea estate to Dantamara Tea & Co. through a registered sale deed on
the ground that S.N Roy failed to give the remaining instalments of the consideration.
Dantamara co. as owner of the tea estate (but without possession), obtained also the export
license. Subsequently Prabodh Kumar Das acquired rights under the contract of sale from
S.N. Roy and acquired also the possession of the tea estate. Thus Probodh Kumar Das had
now he same position as that of S.N. Roy. Prabodh Kumar Das filed a suit for declaration that
the Dantamara Co. was not the owner of the estate and that this co. had no right to ell tea
under the export –license given to it. He also prayed for an injunction.

DECISION

The Privy Council held that in India the equity of part performance as incorporated in section
53-A of TPA was not an active equity. It does not give any right of action to the transferee
who is in possession of property under an unregistered contract of sale. The right conferred
under section 53-A is a right available only to a defendant to protect his possession.

The injunction was therefore, not granted and the appeal was dismissed. Accordingly, the
established principle of law is that in India the equity of part performance can be used only as
shield and not as sword.

RIGHTS OF SUBSEQUENT TRANSFEREE FOR VALUE.

The proviso to this section protects the interests of a subsequent transferee for value without
notice of previous transferee’s rights of part performance. Therefore, this section does not

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affect the rights of the transferee for consideration who has no notice of the contract of sale or
of part performance.

For eg. A who is the owner of a land contracts to sell it to B. The contract is unregistered and
in part performance of this contract B takes possession of the said land. Under this section,
the transferor or any other person cannot dispossess B from the land. But, if A sells the land
to C through duly executed and registered sale deed and C has not the least knowledge of B’s
right of part performance then, section 53-A shall not apply. And B cannot resist C from
evicting B and taking possession of the land.

Thus, any rights which the transferee under this section may have against the transferor
would not be of any avail against a bona fide transferee for value having no notice of the
transaction. The burden of proving that the subsequent transferee had no notice lies on the
person claiming the benefit of part-performance.

DIFFERENCE BETWEEN ENGLISH AND INDIAN LAW

Section 53-A incorporates the provisions of English equitable doctrine of part performance.
But this section is not total importation of English law. It is modified form of English law; the

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importation is therefore partial. Indian law of part performance may be distinguished from the
English law as under.

a. Under English law, the doctrine of part-performance is applicable to written as well as

oral agreements whereas, section 53-A is applicable only where the agreement of
transfer is written.
b. In England, the equity of part performance is active as well as passive. That is to say,
under English law, the transferee is entitled to defend his possession and is also entitle
to enforce his right in an independent suit, e.g. a suit for specific performance or, for
an injunction to restrain dispossession. In India, section 53-A does not give any right
of action to the transferee. Part performance is only passive here.
c. In England the equity gives also the right of action against the evictor but section 53-
A gives no such right.

Thus the rule of part performance which is administered in England as equity is now a
statutory law in India but with suitable changes. Accordingly, it has rightly been said that
section 53-A is a partial importation into India of the English Equitable Doctrine of part
performance.

BIBLIOGRAPHY
 Mulla, “The Transfer Of Property Act, 1882”, 9th Edn., Lexis Nexis, Nagpur

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 Avtar Singh, “The Transfer of Property Act,” Universal law publishing co.
pvt.ltd., Allahabad,(2006)
 Dr. G.P.Tripathy, “The Transfer of Property Act,” Central Law Publications, 11 th
ed, Allahabad.
 Dr. R.K.Sinha, “The Transfer of Property Act,” central Law Agency Allahabad,
14th ed.
 Dr. Poonam Pradhan Sexena, “Property Law”, “Lexis Nexis Butterworths
Wadhwa,” Nagpur, 2nd EDd.

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