INTRODUCTION TO TRANSFER OF

PROPERTY ACT, 1882

Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact
that life, liberty, and property existed beforehand that caused men to make laws in the first place. ~
Frederic Bastiat

By its very existence, society mandates interaction, exchange or transfer. A property, movable or
immovable, is transferred from one person to another under various different situations and
circumstances and for different values. The transfer may be a gift, an inheritance or an asset acquired by
paying full value.

When a movable property is transferred inter-vivos (between two living persons), Sales of Goods Act,
1930 comes into play. When an immovable property is transferred from living person to living person(s),
the Transfer of Property Act, 1882 comes into play. In case, the property is transferred from a dead
person to a living person(s), the law applied will be the Law of succession. Should a person die without
leaving a will (intestate), the law of intestate succession is applicable and in cases where a person dies
leaving a will, the law of testamentary succession is applicable.

BACKGROUND

In India, the personal laws governed the transfer of property assisted by orders of Courts under Civil
Procedure Code before the Transfer of Property Act, 1882 came into existence. Transfer of movable
goods was regulated to an extent by the Indian Contract Act, 1872. For transfer of immovable property,
the Anglo-Indian courts often turned to principles of Justice, Equity and Good Conscience as it prevailed
in England at the time. This rarely did any good due to the vast differences in customs and society of the
two countries. Of course the rapidly growing commerce and infrastructure in the late nineteenth
century lead to more conflicts even in business. Thus, an immediate need was felt for a clear and
pragmatic law regarding property and transfers suited to India and its peculiar problems as well as to
take care of the potential economic problems. The task of drafting such legislation fell upon the First
Law Commission and was later referred to the Second Law Commission.

THE ACT

A Bill, finally presented to the Legislative Council, became a law on the 17th of February 1882 and came
into force from 1st July of the same year. The Transfer of Property Act, 1882 mainly deals with transfer
of immovable property. It does not apply to transfers by the operation of law such as transfer of
immovable property necessitated by Order of Court for insolvency or forfeiture among others. The 137
sections contained within have been divided into 8 chapters.

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Interestingly, nowhere does the Act define ‘What is a transfer of property’. But it does define ‘transfer’
as a standalone in Section 5.

OBJECTIVES

The Transfer of Property Act, 1882 (hereinafter referred to as the ‘T P Act, 1882’) was intended to define
and amend the existing laws and not to introduce any new principle. It applies only to voluntary
transfers. The following may be enumerated as the objectives of the Act:

a) As per the preamble of the Act, the T P Act, 1882 is to amend or regulate the law relating to
transfer of property by the acts of the parties.

b) The Act provides a clear, systematic and uniform law for the transfer of immovable property.

c) The Act completes the Code of Contract since it is an enacted law for transfers that take place in
furtherance of a contract.

d) With provision for inter-vivos transfers, the T P Act, 1882 provides a law parallel to the existing
laws of testamentary and intestate transfers.

e) The Act is not exhaustive and provides scope to apply the principles of Justice, Equity and Good
Conscience if a particular case is not governed by any provision of law.

SCOPE

Since the T P Act, 1882 is not a complete code of transfer of property; we can say its scope is limited.
The Act does not apply to all the transfers taking place in India.

a) Limitation on Transfer: The Act applies to transfer by the act of parties and not by application of
law. Thus, its operations are limited to transfers by act of parties only except in a few cases saved by
Section 2 of the Act.

b) Not Exhaustive: There are various kinds of property and various modes of transfer of property. The
Act does not incorporate rules for all modes of transfer in existence. The Act does not even claim to be a
complete code as apparent from omission of the term ‘consolidate’ from its Preamble.

c) Transfer of Immovable Property: The Act mainly deals with transfer of immovable properties only.

d) Exemption of Muslim Law: In case of a conflict between the T P Act, 1882 and rules of Muslim Law,
the latter will prevail. Section 2 of the Act does not affect inconsistent rules of Muslim Law. Thus, a
settlement made in perpetuity for the benefit of descendants of the settler is a valid wakf (charitable
gift) wherein there is an ultimate gift in favor of a charity.

e) Exemption of Rights and Incidents: Certain incidents of a contract or the essential nature of
property are exemption from the operation of the Act by Section 2. The Act also saves certain property

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rights. For example, the right to partition of immovable property is an incident of property but this right
is not affected by the provisions of the T P Act, 1882.

TERRITORIAL LIMITATION

A territorial law is a lex- loci or the law of a particular place and applies to all persons inhabiting the
territory irrespective of their personal status. It is different from personal law that generally follows the
person. The T P Act, 1882 is a territorial law and its operation extends to the whole of India except for
Punjab. It was not enforced throughout the country in one go. It was made applicable to different parts
of the country on different occasions. When the Act was first enforced (1st July 1882), it extended to the
whole of ‘British India’ except Bombay, Burma and Punjab. The Act was extended to the territories of
Bombay from 1st January 1893. In Punjab, the transfer of immovable property by the act of parties is
governed by the rules of Justice, Equity and Good Conscience.

CHANGES MADE BY AMENDMENT ACT OF 1929

a) The ‘Doctrine of Part Performance’ has been statutorily recognized and embodied in Section 53A.

b) After amendments, the T P Act, 1882 is in conformity with provisions of Indian Registration Act.

c) The Act was amended to exclude government grants from its purview.

d) It provided that the procedural rules regarding mortgages were to be governed by Civil Procedure
Code.

e) Sections 60A, 63A, 65A and 67A were included and the stand on mortgages was made clearer. A
mortgagor now had the power to make leases while a mortgagee’s right to compensation for necessary
improvements was recognized.

OTHER CHANGES

Hindus and Buddhist had been formally excluded from the operation of the second Chapter of the Act
relating to transfer of property, whether movable or immovable. By the Amending Act, 1929, the
chapter has been made applicable to Hindus and Buddhists.

As decided in Radhakishan vs. Shridhar AIR 1960 SC 1368, the Muslim law of pre-emption does not over-
ride the provisions of the T P Act, 1882. The transfer of property where this Act applies has to be under
the T P Act, 1882 only and the Muslim Law of transfer of property can not over-ride the statute.

MISCELLANEOUS

Transfer of property is a ‘Concurrent Subject’ (Entry 6 of List III (Concurrent List) of Seventh Schedule to
Constitution). Both Central and State Government can take legislative action in respect of transfer of
property except that relating to agricultural land which is a state subject.

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 ‘Transfer of Property’ means an act by which a living person conveys property, in present or future, to
one or more living persons, or to himself or to himself and one or more other living persons. The
property may be movable or immovable, present or future and the transfer can be made orally, unless
transfer in writing is specifically required under any law. Any person competent to contract and entitled
to transferable property, or authorized to dispose of transferable property on his own, can transfer such
property whether in part or whole, absolutely or conditionally.

The Act outlines transfers of property by act of parties like sales of immovable property, mortgages and
charges, leases of immovable property, exchanges, gifts and actionable claims.

TRANSFER OF PROPERTY ACT, 1882

(PART – II)
INTRODUCTION

The term ‘property’ has not been defined in the Act. When Section 6 of the Act
says ‘property of any kind’ it implies every possible interest or right that can be
possessed and is a subject of ownership. It can be tangible or intangible. It can
be a physical object or something abstract. Property of different kinds is dealt
with differently. The movable property is dealt with under the Sales of Goods
Act, 1930 while the major chunk of the Transfer of Property Act, 1882 deals with
immovable property. Section 3 of the Transfer of the Property Act, 1882 is called
the Interpretation clause for it explains the following terms.

MOVABLE PROPERTY IMMOVABLE PROPERTY

It can be transferred from one It cannot be transferred without causing extensive

place to another.
Registration is optional as per
the Indian Registration Act,
1908.
damage to the property. The damage relates to the
nature of the
property
Registration is compulsory under the Indian
Registration Act, 1908 if the value of the property is
more than Rs. 100.

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The Sales and Central Sales The property needs to be registered at the Sub-
taxes are applied, Registrar’s office.

The appropriate stamp duty and the registration fee

have to be paid.

DEFINITION OF IMMOVABLE PROPERTY

Immovable property is a species of property. Whenever we speak about

immovable property, we always use the ready reference of ‘attached to the
earth’. Whether a thing is permanently attached to the earth, whether it is
capable of separation or not and what is the intention behind the construction
or promoted growth of the property are a few of the points that need to be
looked into.

The definition of immovable property as per the Transfer of Property Act is a

negative definition. The Section 3 reads that “immovable property” does not
include standing timber, growing crops or grass”. Standing timber refers to trees
that are fit for usage in building or repairs. Growing crop includes all such
vegetables, etc that are solely grown only for their produce. Grass is referred to
as fodder.

Section 3(26) of the GENERAL CLAUSES ACT, 1897 is not an exhaustive

definition. It says that “Immovable property shall include land, benefits arising
out of land and things attached to the earth, or permanently fastened to
anything attached to the earth.” It specifies the following as immovable
property.
a) LAND. It encompasses the upper as well as the lower surface of the earth. Any
interest in the same will be treated as that of immovable property. It would
include wells, streams etc.
b) BENEFITS ARISING OUT OF LAND. This category includes everything dealing
with rights and interests in land as defined above. Right to collect rent or
zamindari rights are two examples.
c) THINGS ATTACHED TO EARTH. The nature of attachment is important.
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This clause is explained with reference to the following three points:
a) Things rooted in the earth like trees, shrubs but not including standing timber,
growing crops and grass. Jamun trees are treated as immovable properties.
b) Things embedded in the earth like buildings, minerals etc. By ‘embedded’ we
refer to things that have their foundations laid well below the surface of the
earth. An anchor of a ship is not immovable property in its normal usage.
c) Things that have been permanently fastened to anything embedded in the
earth for the purpose of permanent enjoyment. For example, ceiling fans, doors
and windows. If the objects that have been attached are merely transitory or
not permanent and do not contribute to the value and purpose of the thing
attached to, they are not immovable properties.

To determine whether a fixture is permanent or not, the following points need

to be considered:
a) Mode of Annexation: Temporary, standing on its own weight or dug in to the
earth, etc.
b) Purpose or Object of Annexation:

Trade fixtures are to be treated in association with the business and not the
land as the fixtures are attached in connection with the business. Such fixtures
are to be treated as accessory to the business and not as annexation. The
position is different if the person attaching the fixtures in a business place is the
owner himself.
When it is a machinery in the factory, the court has to see the object and
purpose of such installation. The beneficial enjoyment of the machinery itself,
the degree and the manner of attachment or annexation on to the earth are
other points for consideration.

The Section 2(9) of the INDIAN REGISTRATION ACT, 1908 gives out the physical
aspects of property in the definition present in the said Act. The definition
under the Act is as follows, “Immovable Property includes land, buildings,
hereditary allowances, rights of ways, lights, ferries, fisheries or any other
benefit arising out of land and things attached to the earth but not standing
timber, standing crops or grass.”

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CONCLUSION OF VARIOUS DEFINITIONS OF IMMOVABLE PROPERTY

All the definitions read together can give us a clear idea what is included or
excluded from being an immovable property. They do not define immovable
property per Se. A clear idea can be obtained by creating a common definition
by mixing these three.

Immovable Property means lands, benefits arising of the lands and the things
attached to the earth or permanently fastened to anything attached to the
earth. Other than the physical aspect, every benefit arising from and every
interest in the property is also included in the definition. It excludes three
things, namely, standing timber, growing crops and grass.

STANDING TIMBER, GROWING CROPS AND GRASS

Whether a tree is timber or not depends on the category of the tree and the
common purpose of such category. All the statutory definitions have excluded
standing timber, growing crops and grass from the purview of an immovable
property. Here the intention is of great importance. If the transaction is the
immediate, the objects will be movable. But if the contract regarding such
objects extends to many a year or if the owner of the trees is interested in
further vegetative growth, then they will be treated as immovable property.
The transfer of trees standing on land does not amount to the transfer of the
land also.

For example, mangoes are treated as movable property for the intention is to
pluck them seasonally and sell them. On the other hand, when a person has a
right to fish from a particular lake, it is a benefit arising of an immovable
property, namely, the lake. Hence, it will be an immovable property.

MARSHALL vs. GREEN — It was held that if only a right to cut and enjoy the tress
as timber was sold, it is an interest in a movable property. If such a right is to
extend over many years, it will be treated as an interest in immovable property.

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WHAT IS INCLUDED IN IMMOVABLE WHAT IS NOT INCLUDED IN IMMOVABLE
PROPERTY PROPERTY

1) A right to collect rent from an 1) A right to worship;

immovable property; 2) A copyright;
2) A right to receive future rents and 3) The interest of a partner in a partnership
profits of land; firm;
3) A tenancy right; 4) A right to get maintenance;
4) Coal mines; 5) A right to obtain the specific performance
5) A borewell that has been fastened of an agreement to sell;
in a permanent way to the earth; 6) Government promissory notes; and
6) Hereditary Offices; and 7) A machinery that is not permanently
7) Right to use water of a perennial attached to the earth and can be shifted from
stream. one Dlace to another.

The real test if whether a property is immovable or immovable is the intention behind the transfer and
the transferability of the property. For example, generally a mango tree will be treated as an immovable
property but it will be treated as movable property if it is to be cut and used to build a house.

TRANSFER OF PROPERTY ACT –

UNBORN CHILD
Section 13 of the Act refers to ‘Transfer for benefit of unborn person’. This Section is an
attempt to import into India what used to be known in England, “The rule of Double
Possibilities”. The rule is that a person disposing of property to another shall not fetter the
free disposition of that property in the hands of more than one generation. As we have read
earlier that both the parties to a transfer of property must be living persons (including juristic
person), but Section 13 is an exception to the general rule of transfer inter vivos.S.13 is a
transfer by born to the unborn. A property can be transferred to a child in the mother’s
womb but not to one who’s not in the mother’s womb.

Unborn Person: He is one who is not in existence as of now or who will come into existence in
future at any time or who is in the womb of the mother. He is basically, a person not yet
born.
Prior Interest: Prior interest is not affected by reason of the subsequent interest being

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rendered void by this rule. It is neither enlarged or extinguished (MOHAMED SHAH V.
OFFICIAL TRUSTEE OF BENGAL, 190936 CAL 431).
Limited Interest: Limited interest can-not be created for the benefit of an unborn person even
though it is subject to a prior interest in favour of a living person.

PRE-REOUISITES FOR A VALID TRANSFER OF PROPERTY TO AN UNBORN PERSON

i) No transfer. The transfer of property can be done by way of trusts but not directly. In the
absence of trust the property must be created in favour of a living person and then to the
minor.
ii) Prior Interest. Life interest can be enjoyed by person(s) until the unborn comes into
existence.
iii) Before the death of last life estate holder. The unborn person must come into existence
before the death of the last life estate holder. It is not necessary that he should be born, even
if he is in the mother’s womb, its enough. A child in ventre sa mere is equal to child in essence
meaning a child in the mother’s womb is equal to a child in existence.
iv) Immediate transfer of rights. All the rights should vest in the unborn child as soon as he
comes into existence. He will the absolute owner of the property vested in him.
It should be noted that the transfer can be made to an unborn person but not to the issue of
an unborn person. Where the gift made in favour of the unborn grand children was not in
respect of the whole interest in the property, the gift was held to be a valid document
(ISSAC NISSIN V. OFFICIAL TRUSTEE,BENGAL,A.LR. 1957 CAL 118(119)).

Under Muslim Law: This Section does not apply to Mohammedans. A gift to an unborn person
is void except in case of Wakf (ABDUL KHADUR V. TURNER, ILR 9B 158).
Under Hindu Law: A gift or bequest in favour of an unborn person is void but now under
T.P.Act it is valid (Section l3 of the T.P.Act).

RULE AGAINST PERPETUITY

Perpetuity means an uncertain period or time or indefinite period. There are people who
want to retain their property in their own families from generations to generations. This will
be a loss to the society because it will be deprived of any benefit arising out of that property.
Free and frequent circulation is important and the policy of the law is to prevent the creation
of such perpetuity.
Origin: Perpetuity may arise in two ways- (a) By taking away the power of alienation from the
transferor (b) By creating a remote interest in the future property.

A condition restraining the transferee’s power of alienation is void as per S.1O of the Act. And
a disposition to create a future remote interest is prohibited under S.14 of the Act.
Object: As discussed earlier, it is important to ensure free and active circulation of property
both for trade and commerce as well as for the betterment of the property that ultimately is
good for the society. Thus, the object of this section is to see that the property is not tied- up
and to prevent creation of perpetuity.

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Following conditions must be satisfied to attract Section 14:
1. There must be transfer of property.
2. The transfer should be to create an interest in favour of an unborn person.
3. Interest created must take effect after the lifetime of one or more persons living at the
date of such a transfer and during the minority of the unborn person.
4. The unborn person must be in existence at the expiration of the interest of the living
persons.
5. The vesting of the interest in favour of the ultimate beneficiary may be postponed only
up to the life or lives of living persons plus the minority of the ultimate beneficiary but not
beyond that.

EXTENT OF PERPETUITY PERIOD

Position in India – Life or any number of lives in being + period of gestation + minority period
of the unborn beneficiary.
English Law – Life or lives in being +period of gestation +minority period.

Difference between Indian and English Law:

1. The minority period in India is 18 years whereas it is 21 years under English law.
2. The period of gestation should be an actual period under Indian Law but it is a gross
period under English law.
3. Under Indian law, property should be given absolutely to the unborn person whereas in
English law, need not be absolutely given.
4. The unborn person must come into existence before the death of the last life estate
holder as per Indian law whereas he must come into existence within 21 years of the death
of the last life estate holder in case of English law.

EXCEPTIONS
i) Transfer for public benefit. Where property is transferred for the benefit of the people in
general, then it is not void under this rule. e.g. for the advancement of knowledge, religion,
health, commerce or anything beneficial to mankind.
ii) Covenants of Redemption. This rule does not offend the covenants of redemption in
mortgage.
iii) Personal Agreements. Agreements that do not create any interest in the property are not
affected by this rule. This rule applies only to transfers where there i transfer of interest.
iv) Pre-emption. In this there is an option of purchasing a land and there’s no question of any
kind of interest in the property, so this rule does not apply.
v) Perpetual Lease. It is not applicable to the contracts of perpetual renewal of leases. vi)
Mortgages. This rule is not applicable to mortgages because there is no creation of future
interest.

RULE AGAINST ACCUMULATION

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Section 17 of the Act speaks about the “Accumulation of Income of property or Direction for
Accumulation”. A direction for the accumulation of income of property amounts to limiting
the beneficial enjoyment of property. Such direction is void as per S.11 of the Act but S.17 is
an exception.S.11 is applicable where there are absolute transfers whereas S.17 applies to all
kinds of transfer. e.g., A settler by deed directs accumulation for 25 years and himself lives for
40 years, from the date of transfer. The accumulation for 25 years is good.
This Section is akin to Section 117 of Indian Succession Act, 1925.

Permissible period for Accumulation is as per law:

i) Life of the transferor; or
ii) Period of 18 years, whichever is longer. Any condition beyond this period is void and not
operative. The direction can be for the whole or part of the income.
Illustration: X transfers his property to Z with a direction that the income of the said
properties shall accumulate during X’s life and shall be given to M. The direction here is valid
only up to the life of Z and not after his death.
EXCEPTIONS
1. Payment of Debts. This rule is not applicable where the purpose for accumulation is the
payment of debts incurred by the transferor or any other person having an interest in the
transfer.
2. Accumulation for raising portions. It means providing a share of the income for
maintenance. It does not apply to cases where accumulation of income is for providing
portions to children or for some remote issue of the transferor or any other person
interested in the transfer.
3. Maintenance of property. Accumulation for the proper maintenance and preservation of
the property shall not be void even if it exceeds the life of the transferor or 18 years
from the date of transfer.
SAVINGS OUT OF INCOME: These are not within the operation of the section and therefore
Trustees are not prevented by reason of this section from making accumulations on
savings (TA7TERSALL V. PEEL, IN RE. PEEL, 1936 1 CH.161).

TRANSFER OF PROPERTY ACT, 1882 –

PART PERFORMANCE
He who seeks equity must do equity

DOCTRINE OF PART PERFORMANCE

The Doctrine of Past Performance, based on principle of equity, developed in

England and was subsequently added to the Transfer of Property Act, 1882 via

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the Amendment Act of 1929. In law of contracts (for e.g., a contract for sale), no
rights pass to another till the sale is complete But if a person after entering into
a contract performs his part or does any act in furtherance of the contract, he is
entitled to reimbursement or performance in case the other party drags its feet.

Section 53A says that if a person makes a agreement with another and lets the
other person act on the behalf of the contract; such a person creates an equity
himself that can not be resisted on the mere grounds of absence of formality in
the evidence or contract of such a transfer. Thus, if the contract has not been
registered or completed in the prescribed manner, the transferor can still not go
against the transferee or anyone claiming under him. However, the deed should
not be unsigned or unstamped. Nothing in this section affects the rights of a
transferee for consideration even if he had no notice of contract of part
performance.

Illustration: A contracts with B to sell his plot for X amount of money. A accepts
the advance from B towards the sale of the plot and hands over the possession
of the said plot to B. After some time, B is ready to pay the remaining sale
amount but A refuses to accept the same. Further A asks B to hand over the plot
back to him.

Here B is ready to perform his part of the contract but A is not. In such a case, B
can bring a case requiring specific performance from A. It does not matter that
the sale was not registered.

As per law, a transfer of immovable property valued over Rs. 100 has to be
registered. But it was believed that strict compliance may lead to extreme
hardships especially where one party has already performed his part in the
confidence that the other party will honor the agreement. If such registration or
other formalities have not taken place, the doctrine of part performance will be
applicable. If such a transferee takes possession of the property, he can not be
evicted due to an unregistered contract.

The section is a defense as well as a right that helps protect the possession
against any challenge. It tries to prevent fraud on the mere basis of ineffective
evidence of the transfer. The section does not confer a title upon the transferee
in possession but it imposes a statutory bar on the transferor.

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Equity looks to the intent rather than to the form

ESSENTIALS OF THE DOCTRINE OF PART PERFORMANCE

a) There must be a written contract for transfer of an immovable property
signed by or on behalf of the transferor. The doctrine can not be applied if there
is a void agreement or no agreement.
b) There must be consideration;
c) The contracts should give out the terms of the transfer with reasonable
certainty;
d) The transferee must have taken possession as a result of this contract or
continued in possession if he was already in possession of the property;
e) The transferee must have done some act in furtherance of the contract. Acts
done prior to the agreement or independent of it can not be deemed to be part
performance of the contract; and
f) The transferee should have performed his part of the deal or be willing to
perform it.

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WALSH vs. LONGSDALE and MADDISON vs. ALDERSON are two of the major
cases that have helped develop the doctrine of part performance in England. In
India, this doctrine has been enacted with a few modifications.

MADDISON vs. ALDERSON 1888

B was A’s servant. A had promised B a certain property as life estate, meaning B
could enjoy the property during his life time. B served A for years upon this
promised life estate. The will bequeathing such interest and property to B failed
due to want for proper attestation. After A died, one of his heirs brought action
to recover the property from B.
It was held that the act of part performance could not be proof of the contract
since the performance was a condition precedent to the contract. The heir of A
was able to recover the said property.

WALSH vs. LONGSDALE 1882 21 Ch d 9

Walsh took a cotton mill on lease for 7 years from Longsdale, the owner of the
mill. The agreement was prepared but not signed. In the meantime, rent arrears
started to accumulate as Walsh could not keep up with the quarterly payments

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of rent. An advance of one year’s rent could be demanded by Longsdale as per
the contract. Lonsdale demanded the advance rent for one year and seized
some goods of Walsh when he defaulted. Walsh sued for damages.

The House of Lords decided in favor of Lonsdale stating that by running the mill,
Walsh had admitted he was a lessee and evidence of his consent to the
unsigned lease deed.

The rule laid down in Walsh vs. Longsdale is not applicable in India – as it did
not constitute the doctrine of part performance.

Prior to the enactment of the Transfer of Property Act, 1882, the English law of
Part Performance was applied. Before Section 53A was inserted in the Transfer
of Property Act, 1882, there were different views upon such application. After
the Transfer of Property Act, 1882 came into force, some thought that Sections
54 and 59 which required registered documents were necessary for sale of
immovable property or regarding mortgage respectively. While others argued
that requiring strict compliance would be detrimental to the rights of the
impoverished masses of India who could be duped by scrupulous individuals
taking advantage of the law.

The Privy Council in MOHD MUSA vs. AGHOR KUMAR GANGULI AIR 1914 PC 27
(30) held that doctrine of part performance is applicable in India. There were
divergent views a few years later stating that doctrine can not be used to
override statutory provisions. Finally in 1929, the Transfer of Property Act was
amended and the English law of part performance became a part of Indian Laws
though a little modified.

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Equity on that as done as which ought to have been done.

Section 53A of the Transfer of Property Act, 1882

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

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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 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 terms of the contract.

The proviso is an exception of sorts stating that the interests and rights of a
subsequent transferee for consideration will be protected as long as he had no
notice of the contract leading to the part performance due or the part
performance thereof.

In India, the doctrine is used only as a shield and not to enforce rights as laid
down by the Supreme Court in Delhi Motors case. But it must be noted that the
aggrieved party can either be the plaintiff or the defendant in a suit as the case
maybe.

ENGLISH AND INDIAN LAW

The English Law of Part Performance

1) The contract need not be written or signed by the transferor
2 The right under the doctrine is an equitable right
3) It can be used for enforcing the right as well as defending the right; and
4) It creates a title in the transferee.

The Indian Law of Part Performance

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1) Section 53A deals with the Doctrine and state that the contract has to be
written as well as signed by the transferor

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2) It is a statutory right;
3) It can only be used to defend the possession of the transferee; and
4) It does not create a title in the transferee.

After 2001 amendment to Section 53A, the application of the section has seen
dilution – it no longer serves as a ‘substitute’ for registration. It should still hold
good for defects other than registration. But, registration of sale of immovable
property is compulsory and Section 53A has been amended to incorporate the
same.

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