Introduction:
The title ‘part performance’ itself suggests that a section of a contract has been performed by a party and also the rule aims upon conserving the interest of the party who has executed some part of his contract. The doctrine of Part Performance has been accepted in Indian Law from the Common Law. Section 53A of Transfer of Property Act, 1882 embodies the Rule of part Performance.[1]
Section 53A of the Transfer of Property Act, 1882 seeks to guard the potential transferees by permitting them to recollect the custody over the property, against the rights of the transferors, who after the execution of an incomplete tool of transfer, fails to finish it within the method given by law, while without there being any fault on a part of the transferee.[2]
In order to reach and analyse the given phrase, it is necessary to dig into the simply preceding phrase that is “the transferrer or someone claiming on the underside of him shall be prohibited as of enforcing against the transferee and the persons claiming under him .”
While recognizing the involved phrase, it is vital to understand the meaning of “any right”, “property” and “taken or continued in possession”, regarding which the project will be dealing about. As Of the preceding phrase, it is evident that the “any right” is communicated regarding in respect of the transferrer or someone claiming on the underside of him to not to have his rights unavoidable against the rights of the transferee and someone claiming under the transferee. Hence, the project can deal with “any right of the transferrer.”
Requirements of Section 53A [3]
- An individual enters into a contract to transfer an immovable property
- for consideration
- put in writing and it should be signed by him or on his behalf
- the conditions of the contract should be sure.
- The transferee, moreover, takes over the possession of the property or to some extent a part of the property or if already in possession, continues the same.
- The act of occupancy is completed within the half execution of the contract.
- Act of securing possession is performed in the part performance of the contract
- Then the transferee who already stayed in possession before the contract Dose some act in furtherance of the contract.
- The transferee is ready to perform or already he has performed his part of the contract
- The transferrer or anyone claiming on the underside of him cannot enforce any right within the property that the transferee is in or else remains to stay in possession of, or not in favour of the transferee, except the rights has been expressly provided by the terms of the contract.
- Furthermore, the method of transfer has not been completed within the method specified by law.
The condition to the Section gives that: The Section won’t have an effect on the rights of a real transferrer except for the conditions that-- The transfer happened for consideration and
- The transferee got no notice of the previous contract or it is part performance
The section won’t be affected by an effect on the rights of such transfer
Statutes Referred
Section 53A, Transfer of Property Act, 1882[4]
The construct of part performance has been taken from English Law. This principle though is associated with English doctrine, however, in the Asian countries, it is been incorporated with some variations. Thus, the land doctrine of part performance and also the Indian doctrine of part performance are completely separate in some facets. This principle was generated by the modification created within the Transfer of Property Act. Prior To the modification, the land doctrine was applied to the cases of part performance. “This doctrine might be a hailfall importation of land doctrine of part performance. It furnishes a statutory defence to an individual who has no registered title in his favour to keep up possession.”
For applying the doctrine of part performance, there are sure conditions that require to be consummated that are as follows:
- that the transferee has partly performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession partly performance of the contract and has done some act in furtherance of the contract,
- that the transferee has performed or is willing to perform a part of the contract, and
- that the plea of half performance isn’t obtainable to be raised not in favour of a transferee for thought who has no notice of the contract or of the half performance thereof.
Also, this doctrine, that may be a statutory right, can’t be denied on the bottom of laches. This can be obtainable solely as a defence for the transferee counter to the transferrer. The transferor’s rights, if there happens the defence of part performance, cannot invoke any of his rights to urge the property. Though’ the right is out there to the transferee against the transferrer, which it protects the rights of the transferee of possession over the property, it doesn’t offer any claim to the transferee. It solely offers the right to stay or get possession over the property by the transferee.
Section 3, Transfer of Property Act, 1882[5]
“Immovable property” does not include standing timber, growing crops or grass.
Section 3(26), General Clauses Act, 1897[6]
“Immovable property” shall incorporate land, benefits to arise out of land, and things connected to Earth or forever fastened to something attached to the Earth.
Section 2(6), Registration Act, 1908
“Immovable property” includes land, buildings, hereditary allowances, right to ways, lights, ferries, fisheries, or any other help to arise out of land, and things attached to Earth, or eternally fastened to anything which is attached to Earth, but not standing timber, growing crops nor grass.
Case Study
Srimant Shamrao Suryavanshi and Anr. V. Prahlad Bhairoba Suryavanshi, (2002) 3 SCC 676 [7]
Facts– Within the present day case, the respondents implemented an agreement of sale of agricultural land in approval of the appellant. The appellants in pursuance of the agreement got the ownership of the property. As soon as the execution of the agreement, the appellant appeared to understand that the respondent is cooperating with another respondent that the appellant filed a suit. The appellant filed for an injunction and an injunction order was passed in advance of the appellant. However, the respondent sold the land through a registered sale deed. The transferee didn’t bring in any suit among the limitation amount for specific relief.
Issue- Whether or not the appellant will defend his control across the land by the manner of half Performance underneath Transfer of Property Act just as when the suit for performance for a contract to sale is prohibited by limitation?
Held- If the limitation amount was over, an individual will acquire control of property partly execution of a contract to sale; the transferee will protect his control just in the case filed by the transferrer. However, this will solely be accomplished that the transferee is able to fairly prove that he has accomplished certain act in furtherance of the agreement or the contractor is ready to execute a portion of the act in furtherance of the contract. This was understood thus as there wasn’t expressly same that the request of half performance cannot be taken as soon as the closing date for filing a suit for performance is terminated.
As per this case, all necessities of half Performance has complied with and also the transferee stayed ready to prove that he was keen to do a part of the contract that accomplishes the importance of performing arts some act in furtherance of a contract, either in taken control or in continuing control of the property.
During this case, the court allowed the attractiveness because it wasn’t controversial that the appellants have being ready to perform a part of the contract.
During this case, The court has justifiably used the doctrine. At this point, the appellant was ready to show the temperament to execute a portion of the contract that is a crucial essential. Since together with this demand all alternative needs were conjointly proven. Hence, it absolutely was the correct of the appellant to own the defence of the doctrine that the court provided.
Conclusion
Therefore, the doctrine of part performance is unbiased doctrine. It is essential to prevent a fraudster from taking benefit on account of non-registration of the document. It is centred on the doctrine: Equity looks at the intention rather than form.
References:
[1] Ina Pant, RULE OF PART PERFORMANCE, March 14/2020, legal bite law &beyond.
[2] Kanchi , The Doctrine of Part Performance , feb 14/2015 , Academike
[3] Ina Pant, RULE OF PART PERFORMANCE, March 14/2020, legal bite law &beyond.
[4] Poonam Pradhan, Property Law ,2nd Edition, 2013, LexisNexis 253
[5] AIR 1964 SC 877,1964 ,1 SCJ 109.
[6] 1959, 2 Mad LJ 502 /506
[7] Kanchi , The Doctrine of Part Performance , feb 14/2015 , Academike
0 Comments