The doctrine of Part performance rest on the principle that of a men has made bargain with an other, and allowed that person act upon it, he will create an equity against himself, which he can’t resist by setup of want of formality…………………of the control out of which the equity infact arises,
The doctrine of Part performance plays an important role in protecting the possession of purchaser subject to the fulfillment of terms and conditions by him. One can Say it creates an equitable title in favour of the transferee who has been indcuted in the immovable property by the transferor in part performance of the contract.
The Doctrine of part performance also known as ‘Equity of Part Performance “ which postulates that if a person has taken a possession of an immovable property On the basis of contract of sale and has either perform or 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 the Legal title has not been transferred to him, The doctrine of Part performance is based also on the principle of Justice, Equity and Good Conscious. This doctrine has been incorporated u/s 53 (a) which does not merely give rights to Equity but it creates a statutory rights.
Inorder to attracts the Section 53(a) the following conditions are necessary.
1. There must be a contract which must be in an express manner.
Section 53 (a) precludes oral contracts or agreements. And the agreement or contract in a written form must be signed by the transferor or on his behalf by a duly authorize person.
2. The contract must be in respect of Immovable property only.
3. The contract must be based on consideration. Where the transfer is without consideration this sec will not be applicable. For E.g Gift is a transfer without consideration, Therefore this section will not come in for protection.
4. The terms and Conditions must be an assertaible that is to say that the contract must be enforceable in law it must not be in violation to any statutory provisions of law, the terms and conditions can easily be understood, One can say clearity of the stipulations is the whole mark to attract section 53(a). For E.g. Description of the property, Total consideration, how much earnest money is paid, when the balance consideration paid with must be mention with reasonable certainltity.
5. The transferor in part performance of the contract must have given possession to the transferee. Other the requirements of this section is that the transferee wither must have taken the possession of property after the contract has been made or if he is already in the possession of property he must have continued with the possession, it is necessary that the possession taken or continued must have been in pursuance of the contract, if the transferee has not been taken the possession of property this section is non applicable, if the transferer has once taken the possession but has subsequently lost it this fact will not deprive him of his right of protection u/s 53 (a), it is not necessary that the transferee should take the possession of whole property, if a Transferee take possession or continues in possession even on a part of property it is sufficient for availing the benefit of this section, the only precondition is that the transferee must have obtained in law meaning.
6. The transferee must do some act in furtherance of the contract,there must be a direct co relationship between the contract and act done in furtherance done of the contract taking possession is not only the method of part performance of the contract where the transferee is already in possession of the property he must do some act or perform his obligation in furtherance of the contract for E.g to pay the remaining balance consideration by way of instalment or he must pay half the property or Pay for renovation work of the property.
Case Law.
2021 YLR 1476 ( Anjum Ara vs Shabbir Halai)
2017 SCMR 316.
Readiness and Willingness of the Transferee.
The last condition so as to attract of this section is that the readiness and Willingness of the transferee must be proved or esblished, it is also necessary that the willingness to perform the part must be absolute and unconditional, if the willingness is louded with the conditions it can be termed as a willingness in the case of Jacob Private LTD vs.thomas Jacob (AIR 1995 Kerala 249) The court held that when the Wendy company willingness to pay the amount provide md the plaintiffs clears his Income tax arrears Wich was not the part of the contract m, there is no complete willingness and it is not sufficient for the protection of Section 53(a).
Exception.
Section 53(a) Provides an exception in favor the transferee for consideration who has no notice of the contract or it’s performance by way of part performance in other words any right with the transferee may have against the transferor under this sec would not be of any avail against the bonafided transferee for value having no notice Of the transaction.
Nature of this Doctrine.
Section 53(a) is used only as a defence, it doesn’t gives any right of action to the transferee the transferee Can only Defend Eviction in case of filled the conditions of this sec, the equity of part performance is passive, it can be used only as a shield and not as a sword.
Difference b/w English law
Under English even and oral agreement is sufficient to attract this doctrine of Part Performance where as u/s 53 (a) it applies to the agreements which are reduced in writing and signed by the transferor.
Under English Law this doctrine can be used by both as a sword and as a shield that is to say it can used both for enforcing the rights as well as defending the rights, however us 53(a) it can be used a shield to defend the right of transferee.
In English law doctor of part performance gives rights to an Equity under the common law, but under the provisions of the T.P Act by Virtue of Section 53(a), it gives rise to a statutory right of defence.
