NATURE OF RIGHT UNDER SECTION 53A OF THE

TRANSFER OF PROPERTY ACT 1882

THE TRANSFER of Property (Amendment) Act, 19291 for the first time
introduced in India in statutory form the English equitable doctrine of part
performance.2 There appears to have been no controversy as regards the
essentials for the application of this doctrine as enacted in section 53A.
Broadly speaking they are :
(/) There must be a contract to transfer3 an immoveable property.
(ii) The contract must be evidenced by writing which must be signed
by the transferor himself or by someone on his behalf.4

1. Act XX of 1929. By s. 16 of this Act, s. 53A was introduced in the Transfer

of Property Act, 1882. By s. 3 of the Transfer of Property (Amendment) Supplemen-
tary Act, 1929 (Act XXI of 1929), a similar provision was enacted in s. 27A of the
Specific Relief Act, 1877, (now deleted in the present Act of 1963). Though similar, yet
the above provisions were not identical in scope. Following were the main points of
distinction between the two :
(/) The scope of s. 53A is wider as it applies to all transfers including leases,
whereas s. 27A was limited only to leases.
(ii) Again s. 53A affords only -a passive equity, whereas s. 27A afforded both
active as well as passive. Mahajan, J., in Manek Lai v. H.J. Ginwalla & Sons, A.I.R.
1950 S.C. 1 at 4, observed :
It may be mentioned that in cases of lease the legislature has recog-
nized that the equity of part performance is an active equity as in
English law and is sufficient to support an independent action by the
plaintiff.
(///) Under s. 53A there is no period of limitation but under s. 27A, the period
was three years.
(/v) S. 27A could be availed of by a lessee only when he, in part performance of
the contract, had taken possession of the entire properly or, being in possession,
continued in possession of the property in part performance of the contract. Where
the lessee failed to get possession of the entire property s. 27A was not applicable. (See
Delhi Motor Co. v. U.A. Basrurkar, A.I.R. 1968 S.C. 794 at 799). NB. The Law
Commissioners recommended deletion of s. 27A in the new Specific Relief Act, 1963
because a similar provision was made in the Indian Registration Act, 1908.
2. This doctrine in England was invented by the Courts of Equity with a view
to take inequitable cases out of the Statute of Frauds, 1677. In India a somewhat
similar need was felt in relation to the Registration and the Transfer of Property Acts.
Before the statutory recognition of this doctrine in 1929 it was applied by the various
High Courts in India. The Privy Council also applied it in the following cases: Mahomed
Musav. Aghore Kumar Ganguli, 42 LA. 1 (1914); Ariffw. Jadunath, 58 LA. 91(1931);
MianPir Bux v. Sardar Mahomed Tahar, 61 LA. 388 (1934).
3. Transfers of all kinds such as sale, mortgage, lease, exchange (gift excluded)
come within the scope of s. 53A.
4. In Allam Gangadhara Rao v. Gollapalli Gangarao, A.I.R. 1968 A.P. 291, it
was held that s. 52A nowhere says that writing should be at the time of original contract.
Even where originally a contract was oral but subsequently reduced to writing and

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1973] NATURE OF RIGHT UNDER SECTION 53 A 609

(m) The terms necessary to constitute transfer must be ascertainable

with reasonable certainty.
(iv) The contract must be legal5 and for consideration.
(v) The contract must have been partly performed. The section leaves
no room for conjecturing, as to what would amount to part
performance within the meaning of this section. It provides
that the transferee must have taken possession of the property
concerned in whole or in part because of the contract. And
where the transferee is already in possession, continues in
possession in part performance of the contract and does some
act in furtherance of the contract, such as making alterations of
a permanent nature, additional constructions, paying rent at a
higher rate, etc.*
(vi) The transferee has performed or is willing to perform his part of
the contract.

When all the above conditions are satisfied, the transferee can claim
the protection afforded by section 53A. But what, in fact, is this protec-
tion? The law on this point is in a state of flux. Various High Courts in
India have taken conflicting positions. It is, therefore, proposed here to
investigate the true nature and scope of the protection afforded to a
transferee by section 53A, a question that has been burning almost since
inception, producing considerable heat but little light. Before any attempt
at interpretation, it would be profitable to set out the relevant portion of
section 53A. It runs as under:

[T]hen, notwithstanding that the contract, though required to

be registered, has not been registered, or, 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.

The concluding para enacts the rule that this protection shall not be

signed by the transferor in which all terms of the original contract have been brought
out, such writing can certainly be used for purposes of s. 53A.
5. In Akram Mea v. SecunderabadMunicipal Corporation, A.I.R. 1957 A.P. 859,
where the contract was in violation of the provisions of the Cantonments Act, 1924, it
was held that s. 53A shall not apply.
6. In Achayyaw.VenkataSubba Rao, A.LR. 1957 A.P. 854, it was held that
possession need not continue till the time when legal proceedings commence in a court
of law.

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610 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 4

available to the transferee as against a subsequent transferee for consideia-

tion, who has no notice of the contract cr of the part performance
thereof.
A seminal decision on the interpretation of the above provision in
section 53A is that of the Privy Council in Probodh Kumar Das v. Dantmara
Tea Co.1 In the instant case, one Gillanders Arbuthnot and Co. agreed to
sell Kaiyecherra Tea Estate to one S.N. Roy, who paid the first instalment
of consideration money and entered into possession. No registered deed
was ever executed in favour of S.N. Roy. The company alleging failure
on the part of S.N. Roy in making payment of the remaining instalments
of consideration money, sold the above estate to Dantmara Tea Co. by a
registered deed. The Dantmara Tea Co. could not obtain possession of
the estate as the same was with S.N. Roy. Subsequently, the Indian Tea
Licensing Committee, recognising Dantmara Tea Co. as owners of the tea
estate (although out of possession), granted to them the export quota rights
in respect of the said estate. At this stage Probodh Kumar Das, claiming
to have acquired, in part, S.N. Roy's rights under the contract of sale
together with possession of part of the said tea estate, brought a suit in a
court of law for a declaration that the Dantmara Tea Co. had no right or
title to the estate and that it was debarred from enforcing any right to the
estate including the right to sell tea under the export quota allotted to it.
The plaintiff also prayed for an appropriate injunction. Holding against
the plaintiff (appellant), their Lordships of the Privy Council observed:

In their Lordships' opinion, the amendment of the law effected

by the enactment of S. 53-A conferred no right of action on a
transferee in possession under an unregistered contract of sale.
Their ^Lordships agree with the view expressed by Mitter J. in
the High Court that "the right conferred by S. 53-A is a right
available only to a defendant to protect his possession."....The
Section is so framed as to impose a statutory bar on the
transferor; it confers no active title on the transferee. Indeed,
any other reading of it would make a serious inroad on the
whole scheme of the Transfer of Property Act.8

The above observation clearly shows that the protection of section

53A will be available to a transferee only as a defence and not as a weapon
of attack; that section 53A in India incorporates a passive equity.9 It can
be used only as a shield and not as a sword. In other words, a transferee
can always make a defensive use of the equity enacted in section 53A. This

7. A.LR. 1940 P.C. 1.

8. /</. at2.
9. In England the equity of part performance is both active as well as passive,
but in India it is passive only. See Chaliagulla Ramachandrayya v. Boppana Satyanar*
ayana, A.I.R. 1964 S.C. 877.

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1973] NATURE OF RIGHT UNDER SECTION 53A 611

exposition of the law as regards nature of the protection afforded by

section 53A is accepted at all hands. 10 The exposition, however, is good
as far as it goes. But it does not go very far. The language is only
deceptively simple. In its practical application an important question that
arises is what is meant by defence and defensive use of equity enacted in
section 53A? Does it mean that there will be defence only when the
transferee appears in a court of law as defendant and not otherwise? In
other words, does it in any way suggest that in no circumstances ths protec-
tion of section 53A can be availed of by a plaintiff? On this point there
is no clear-cut decision either of the Privy Council or of the Supreme
Court. In Delhi Motor Co. v. U.A. Basrurkar11 the Supreme Court
expressly left this question open. Bhargava, J., delivering the judgment
of the court observed :12
On the question whether a person, who sues as a plaintiff, may
still be regarded as defending the rights sought to be conferred
upon him by an unregistered deed, we need express no opinion.
In the absence of an authoritative decision on this point, it would be
profitable to examine some of the important High Court decisions. As
early as 1939, Allahabad High Court in Ram Chander v. Maharaj Kunwar13
held that a person can be said to be defending his possession even when
he goes to a court of law as a plaintiff. In this case the plaintiff was a
lessee of a house under a defective lease, since it was not signed by both
the parties as required by section 107 of the Transfer of Property Act,
1882. The subsequent purchaser of the property was attempting to
demolish the house and to interfere otherwise with the plaintiff's right as
lessee. The plaintiff, thereupon, brought a suit for an injunction to restrain
the purchaser from doing so and the question arose as to whether the
plaintiff could maintain the suit. The argument on behalf of the plaintiff
was that he could do so under section 53A of the Transfer of Property
Act. The learned judges of the Allahabad High Court proceeded on the
basis that the plaintiff was not attempting to set up the transfer which was
invalid and that he was merely seeking to debar the defendants from
interfering with his possession. In the course of judgment the court
observed :14
Now, in the present case, what is it that the plaintiff is attempt-
ing to do? He is not attempting to set up a transfer which is
invalid; he has not instituted a suit for the declaration of the

10. Even the Supreme Court in Delhi Motor Co. v. U.A. Basrurkar, A.I.R. 1968
I.C. 794, has approved this view.
11. Ibid.
12. Id. at 799. In this case the plaintiff, according to the Supreme Court, was
laking use of s. 53A as a weapon of attack.
13. A.I.R. 1939 All. 611.
14. Id. at 613.

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612 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 4

validity of the transfer: he has not instituted a suit in which he

claims an order against the defendant directing him to perform
any covenant of the transfer. What he is seeking to do is to
debar the defendants from interfering with his possession into
which he has entered with the consent of his transferor after
the execution of a transfer in his favour. He is, in other words,
seeking to defend the rights to which he is entitled under
S. 53A, T.P. Act....The defendants it is who are seeking to
assert rights covered by the contract. The plaintiff seeks merely
to debar them from doing so; the plaintiff is seeking to protect
his rights. In a sense, in the proceedings he is really a
defendant and we see nothing in the terms of S. 53A, T.P. Act
to disentitle him from maintaining the present suit.
The Oudh Chief Court in Ewaz Ali v. Firdous Jehann aJso took the
same view. In this case a house situated in the city of Lucknow was owned
by one Dr. Mohd. Yunnus, who had obtained a decree for eviction against
his tenant, Habibullah. During the pendency of the application for
eviction, the wife of Habibullah approached the doctor and agreed to
purchase the house for Rs. 7,800. An advance was paid and the doctor
executed a receipt in her favour agreeing to convey the house. Subsequent-
ly, the house was sold by a registered sale-deed to Ewaz Ali. The
purchaser brought himself on record in the execution petition (i.e., the
application for execution of the decree of eviction pending in the court).
The wife of Habibullah who had an agreement in her favour and was also
in possession of the house filed objections under order XXI rules 99 and
100 of the Civil Procedure Code relying upon her right under section 53A,
of the Transfer of Property Act. Her objections being overruled, she filed a
suit under order XXI rule 103 of the Civil Procedure Code impleading
therein, the doctor, the purchaser and her husband as defendants. She
sought a declaration that she was in possession of the house in the suit on
her own account, and that she could not be dispossessed in execution of
the ejectment decree. The learned judges held that her possession was
referable to the contract in her favour and she was entitled to the protection
of section 53A although she appeared in the court as a plaintiff. The
learned judges explained that a suit under order XXI rule 103 of the Civil
Procedure Code is, in fact, in the nature of defence. Explaining the nature
of protec f ion afforded by section 53A, the learned judges observed as
follows :16
It is clear to our mind that the section cannot be used as a
weapon of attack, and that it confers upon the transferee the
privilege of invoking the doctrine embodied therein only as a
shield against any invasion of his rights by the transferor or

15. A.I.R. 1944 Oudh 212.

16. M a t 218.

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[973] NATURE OF RIGHT UNDER SECTION 53 A 613

persons claiming under him. The words of the section do not

warrant a conclusion that a plaintiff as such is necessarily
debarred from the benefit of the rule. Where by the nature of
the case, as disclosed by the pleadings or otherwise, it is
apparent that the transferee comes to Court to defend his
possession against the invasion of it by the transferor he is
entitled to invoke the aid of the equitable doctrine therein
embodied.
Commenting upon the observations of the Privy Council in Probodh
Kumar Das v. Dantmara Tea Co., the same judges observed :17
We are unable to consider that their Lordships of the Privy
Council by the use of the word "defendant" in the above
observation,18 intended to mean that the right conferred by
S. 53A was not available to a person in the position of Mt.
Firdaus Jahan and that the mere position of a party in the
heading of a suit would determine whether he is or is not
entitled to benefits of the section. The subsequent sentence
makes this clear. When they use the word "defendant", they
use it to describe the position of a person who pleads S. 53A,
and they say his position must be that of a person who
invokes it for defending himself against his transferor.
The Andhra Pradesh High Court in Achayya v. Venkata Subba Rao19
as subscribed to the above view. Subba Rao, C.J., (as he then was of
lat court) after conjecturing a great many situations20 observed as
allows ;21
It is not necessary to multiply cases. It is settled law that under
S. 53-A of the Transfer of Property Act, no title passes to a
transferee. He cannot file a suit for a declaration of his title to
the property or seek to recover possession of the same on the
basis of any title conferred on him. But, if the conditions laid
down in the section are complied with, it enables the
transferee to defend his possession if the transferor seeks to
enforce his rights against the property. This statutory right
he can avail himself both as a plaintiff and as a defendant
provided he is using his right as a shield and not as a sword.

17. M a t 2 1 9 .
18. Supra note 8.
19. Supra note 6. See also Akram Mea v. Secunderabad Municipal Corporation,
Dra note 5 and Chaitan Das v. Murali Dalai, A.I.R. 1971 Orissa 41.
20. For example, dispossession by the transferor himself, compensation on
mpulsory acquisition by the government, etc.
21. Supra note 6 at 858.

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614 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15:4

Or to put it in other words, he cannot seek to enforce his title

but he can resist the attack made by a transferor.
Recently the Gujrat High Court was faced with the same problem in
Vora Mulla Taheralai Mulla Akbarali v. Manoranjan Barua.22 In this
case there was a house owned by one Alihussain. On 6.11.1952 Alihussaia
entered into an agreement of sale of this house with Vora Mulla, the
appellant. The consideration price was settled at Rs. 8,000. Out of this^
a sum of Rs. 2,500 was paid by the said Vora Mulla on 6.11.1952 and he
entered into possession of the house on the same date. The balance pur*
chase price was also paid off by the end of 1954. Manoranjan Barua,
the respondent in this case obtained a money decree against Alihussaia
from the Calcutta High Court on 15.2.1955. He subsequently applied
for execution of this decree at Sidhpur, where the above mentioned house of
Alihussain was situate and specially prayed for attachment of the house so
that it may ultimately be sold in execution of the decree. At this stage, Von
Mulla filed a claim petition under order XXI rule 58 of the Civil Proceduif
Code. The claim petition having been dismissed, Vora Mulla filed a smt
against the judgment creditor Manoranjan Barua, asserting that he is tht,
exclusive owner of the house and that it is not liable to be attached and
sold. Holding the suit not maintainable, Justice V.R. Shah observed :23
We may make it clear that in our opinion, under the provisions
of Section 53-A, the transferee does not get any right in respect
of the property. Section 53-A does not speak of the confer-
ment of the right of possession by the transferor to the trans-
feree. It merely speaks of the estoppel against the transferor
preventing him from enforcing any right in the property against
the transferee. It is on account of this estoppel against the
transferor that it is loosely spoken as if the transferee acquires
a right to protect his possession. In our opinion, Section 53-A
does not confer any right in respect to property on the trans-
feree to whom possession is delivered. The only right conferred
by Section 53-A on the transferee in possession is a right to
plead this estoppel against the transferor or person claiming
under him.
Proceeding further the learned judge observed : 24
Since such a transferee does not obtain any right in the property
it follows that he cannot maintain any suit on the allegations
that there is a right vested in him and that such a right is
infringed. A plaintiff, in order to maintain a suit has to show
that he is possessed of a certain legal right and that there is an

22. A.I.R. 1970 Guj. 122.

23. Id. at 126.
24. Id. at 127.

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1973] NATURE OF RIGHT UNDER SECTION 53 A 615

actual or apprehended infringement of that right. Unless he

does so, he cannot maintain a suit. It is precisely on this
ground that both the Privy Council and the Supreme Court
have emphasised that Section 53-A is available to a transferee
by way of defence only, that is, in a case where he is arrayed
as a defendant seeking to protect, by pleading estoppel, what
he has got and not as a plaintiff seeking to remedy the infringe-
ment of a right.

With due respect it is submitted that the learned judge has failed to
appreciate properly both the decisions referred to in the above extract. The
Privy Council in Probodh Kumar Das v. Dantmara Tea Co. nowhere
specifically held that for the availability of section 53A the transferee
should be arrayed in a court of law as a defendant. It has been already
pointed out that the Privy Council merely decided that section 53A would
or would not include cases where the transferee is arrayed in a court of
law as a plaintiff. As regards the Supreme Court decision in Delhi Motor
Co. v. U.A. Basrurkar2^ it has been already pointed out that it has expressly
left this question open.
It may not, therefore, be too much to say that the learned judge has
drawn a broader ratio than what the Privy Council or the Supreme Court
intended to lay down in the cases referred to above. Even the learned
judge himself does not appear to stick to the broad proposition laid down
by him in the above quotation. For, at another place after adverting to
the decision of the Oudh Chief Court in Ewaz Ali v. Firdous Jehan (already
referred above) with facts, he observed : 26

We may note that in this case the plaintiff was, for all practical
purposes defending her possession against the transferee who
was claiming under the transferor. The law debarred the
purchaser from enforcing any right against her and all that
she wanted to achieve by the Court's help was to see that the
estoppel against the purchaser from the transferor created by
Sec. 53-A was enforced against him. She was not complain-
ing against any infringement of a right in property vested in
her.

A consideration of the foregoing cases leads us to the conclusion

that the equitable doctrine of part performance enacted in section 53 A
can be availed of by a transferee only as a defence and not as a weapon
of attack. Again "defence" and defensive use of the equity do not

25. Supra note 10.

26. Supra note 22 at 128.

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616 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : i

necessarily require the transferee, to appear in a court or law only ai

a defendant. The transferee, even if he appears in a court as plaintif
can get protection of section 53 A provided, of course, he uses it as i
shield and not as a sword. Equally a defendent will not be entitled tc
avail of the provisions of section 53 A if he uses them as a weapon o]
attack.
A.K. Srivastava and Bal Kishna**

* LL.M., Lecturer in Law, University of Lucknow.

•* M. Com., LL.M., Lecturer in Law, University of Lucknow.

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