ABSTRACT

Property is one of the most important element of the individual life therefore Property law
has become an important branch of civil law. Property is basically a bundle of rights in a
particular things or land. The Transfer of Property Act, 1882 deals with transfer of
immovable property between two living person. Section 53A of the Transfer of Property Act,
1882 protect the right of the transferees by allowing them to hold the possession of the
property against the rights of the transferors, who after the execution of an incomplete
instrument of transfer, fail to complete it in the manner prescribed by law, without there
being any mistake on part of the transferees 1. This section provides a partial importation of
the English Doctrine of Part Performance. It is an important provision which provide
statutory defence to an individual who has no registered title of the property in his name to
maintain his possession. The aim of the research is to study Doctrine of Part Performance in
India and England and the major difference between them.
1. INTRODUCTION
The Doctrine of Part Performance traced it history under the concept of Equitable rule of Part
Performance which the Court of Chancery developed under the English law. The first case
where the Doctrine of Part Performance was implemented by the Court of Chancery was
Foxcroft v. Lester2, in this case it was observed by Lord Redesdale that, “It was against the
conscience to suffer the party who had entered and expended his money on the faith of a
parole agreement to be treated as a trespasser and the other party to enjoy the advantage of
the money he had laid out”.
This doctrine afterwards added into the Transfer of Property Act, 1882 under Section 53A by
the Amendment Act of 1929. The section 53A protects the right of the transferees in order to
enable them to maintain the possession of the property against the transferors who execute an
incomplete instrument of transfer and later fail to complete it in the manner prescribed by the
law without there being any fault on part of the transferee. The Privy Council and the
Supreme Court has described section 53A as partial importation of the equitable doctrine of
part performance. Like in England, this section does not stipulate for equity through part
performance, it’s only available as a statutory right. In two aspects this right is more
restricted under section 53A as compared to the Equitable Doctrine of England:3
(1) There must be a written contract under Indian law whereas in the English doctrine it
provides for both oral and written contracts.
(2) It is only act as a defence under Indian law but the same can be used as a method of
offence in England. It was clearly expressed in the case of Hamida v. Humer4 that, the
doctrine of part performance works on the principle of equity and it considers something as
done which ought to have been done.

1
Poonam Pradhan Saxena’s, Property Law 253 (2nd Edition, 2013).
2
Foxcroft v. Lester, Colles’ P.C. 108 (PC: 1701).
3
Dr. Avatar Singh, The Transfer of Property Act 156 (4th ed. 2016).
4
Hamida v. Humer, AIR 346 (All.HC:1992).

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1.1 RESEARCH METHODOLOGY
The research here is secondary in nature. The materials that are written here is taken from
different sources like books and internet. Every part of the topic is not covered in complete
detailed because the subject is every vast. The research type is descriptive in nature. Doctrinal
method is used for this research as it is impossible to study by experimental.
1.2 RESEARCH QUSETIONS
a) What is doctrine of part performance?
b) What are the difference between doctrine of part performance in India and England?
2. DOCTRINE OF PART PERFORMANCE
The Doctrine of Part Performance is also known as equity of part performance. It state that if
a person has taken possession of an immovable property on the basis of contract of sale or
consideration 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 the
legal title has not been transferred to him5.
The main objective of the doctrine is to protect an ignorant and innocent purchaser who takes
possession or spend money in improvements relying on documents which are ineffective as
transfers or on contract which cannot be proved for want of registration. Sometimes, the
seller may become greedy if another offer more price so the seller want to repudiate the
original contract entered into with the prior purchaser who has already performed certain
portion of the contract. The doctrine protect such prior purchaser. The doctrine of part
performance is a defence. It is a shield. It also prevent fraud. 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
Co v. Basrurkar6 case. But it should be noted that the party can either be the plaintiff or the
defendant in a suit for a particular case.
3. THE ENGLISH DOCTRINE OF PART PERFORMANCE
The doctrine of part performance was evolved by Court of Equity in England. In 1677, a
statute was enacted in England called Statue of Frauds, 1677 to prevent perpetuation of fraud
in the transfers of land. The Statue of Frauds 1677 required all contract in writing to prevent
fraud at the transfer of land. Section 4 of the act speaks about part performance which is as
follows:
“No action shall be brought whereby to charge any executor or administrator upon any
special promise to answer damages out of his own estate or whereby to charge the defendant
upon any special promise to answer for the debt default or miscarriages of another person or
to charge any person upon any agreement made upon consideration of marriage or upon any
contract or sale of lands tenements or here determents or any interest in or concerning them
or upon any agreement that is not to be performed within the space of one year from the
making thereof unless the agreement upon which such action shall be brought or some
memorandum or note thereof shall be in writing and signed by the parties to be charged
therewith or some other person thereunto by him lawfully authorised”7.
5
Singh, supra, at 155.
6
Delhi Motor Co v. Basrurkar, AIR 794 (1968).
7
Statue of Frauds, 1677, § 4.

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The owner of the property could induce another person to act upon his promise and that other
person on the basis of promise not only had performed his part of the contract, but had acted
on it and then the owner can repudiate his promise on the ground that it was not reduced to
writing.
The doctrine was firmly established in England in a case Maddison v. Alderson8. The fact of
the case is as follows, A was an employee and B was A servant. A had promised B a certain
property as life estate, which means B could enjoy the property during his life time. B served
A for years upon his promised life estate. The will bequeathing such interest and property to
B had failed proper attestation. After A died, one of his legal heirs brought action to recover
the property from B. The question arose that whether B can seek defence under doctrine of
part performance. It was held that the act of part performance could not be proof of the
contract because the performance was a condition precedent without the fulfilment of which
the contract could not arise at all. Hence later the heir of A was able to recover the said
property.
In a case Walsh v. Lonsdale9, the House of Lords gave judgment in favour of Lonsdale. The
principles laid down were:
1) Walsh was only a lessee in equity even though the agreement of lease was not signed. By
part performance i.e. running the cotton mill, Walsh admitted the fact that he was a lessee.
The part performance itself was an evidence of his consent.
2) Lonsdale was a lessor in equity and he had right to specific performance.
3) An agreement to sell or transfer of property does not create any title in favour of the
purchaser. It only gives rise to sue and to damages to both the parties against the other party
if damage is caused by the other party.
4) The equitable principle laid down in this case can be applied only in cases where contract
is admissible in evidence and in respect of the suit for specific performance is allowed.
4. DOCTRINE OF PART PERFORMANCE IN INDIA BEFORE 1929
Until the amendment act 1929, the law regarding part performance in India was same as that
of England. The application of the act was neither certain nor uniform. In some cases it was
applied and in some it was not applied.
In a case, Mohamed Musa v. Aghore Kumar Ganguli10, there was a dispute between the
mortgagee and mortgagor regarding the mortgaged properties. Both of them came to
compromise and got it Razinamah. According to the razinamah the properties were divided
equally between the two and each them partitioned and retained the property as per their
razinamah. The razinamah was not registered. A written conveyance of razinamah was not
required according to the law force at that time. After 40 years, the heirs of the mortgagor
sued for redemption of the properties which were left with the mortgagee under razinamah.
The Privy Council dismissed the suit and held that although the compromise deed was
unregistered therefore a valid instrument which could not be repudiated.

8
Maddison v. Alderson, 8 AC 467 (AC: 1883).
9
Walsh v. Lonsdale, 21 Ch.D.9 (ChD:1882).
10
Mahomed Musa v. Aghore Kumar Ganguli, 42 Ind App 1, AIR 27 (PC: 1914).

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In Ariff v. Jadu Nath Majumdar11, the appellant have verbally agreed with the respondent to
grant him a permanent lease of a plot of land at Rs. 80 per month. Later the respondent with
the knowledge and approval of the appellant erected structures on the land at cost of about
Rs. 10,000. In December 1918, the appellant refused to grant respondent the agreed lease. In
1923, the appellant sued to eject him after a month notice. The court did not apply the
Doctrine of Part Performance in India. The Privy Council gave two grounds:
1) The agreement for lease was oral sand not written.
2) Express violation of the provision of statutory law of transfer of property act.
5. DOCTRINE OF PART PERFORMANCE IN INDIA AFTER 1929
Section 53A of the Transfer of Property Act, 1882 as inserted by the Transfer of Property
(Amendment) Act 1929 stipulates the following:
“Where any person contracts to transfer for consideration any immovable 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 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: 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.”12
ESSENTIALS:
The Honourable High Court of Kerala in case Bhargavi v. Lakshmi held that there must be a
lawful and enforceable contract to avail the benefits of Section 53A. Sections 53A of the
Transfer of Property Act, the following postulates are 13:
(i) A contract to transfer any immovable property for consideration should be there:
The right of the transferor is determined with respect to the kind of property. The section only
talk about immovable property. Immovable property is defined under section 3 of the
Transfer of Property Act, 1882. Immovable properties include land, houses, flat etc. the
section do not include gifts, partition etc. Immovable property include things attached to earth
but not standing timber, growing crops and grass14.

11
Ariff v. Jadu Nath Majumdar, 58 Ind App 91, AIR 79 (PC: 1931).
12
The Transfer of Property Act, 1882, § 53A.
13
Vijayalekshmi Omana, Part Performance: Contract: Essentials, Sense of Law, (13/10/2019, 8:35 PM),
https://senseoflaw.blogspot.com/2010/11/part-performance-contract-essentials.html.
14
Ankita Singh, The Doctrine of Part Performance, Academike, (6/10/2019, 8:40 PM),
https://www.lawctopus.com/academike/doctrine-of-part-performance/.

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In case S.D.P Sabha Baijnath Co-operative Multipurpose Society Ltd v. State of Himachal
Pradesh15 held that gift is a transfer without consideration, therefore does not comes under
doctrine of part performance.
(ii) The contract must be in written form (cannot be oral), and the transferor must sign
the same or someone on his behalf must.
The second condition is that it should be written. The contract must also have signed by the
person claiming to recover possession. In a case Yadav Motors v. Hitendra Kumar Ahuja 16
there was no written agreement between the landlord and the tenant, therefore the payment of
sale consideration by the tenant so not proved in the court. Hence the tenant could not get the
benefit under section 53A.
(iii) The terms necessary for the purpose of construing the transfer much be clearly
ascertainable from the writing in the contract.
In Govind Prasad Dubey v. Chandra Mohan Agnihotri17 the court held that the terms of the
contract can be ascertained with reasonable certainty. In a case Bobba Suramma v.
Peddireddi Chandramma18 held that, If the term regarding transfer cannot be ascertained with
reasonable certainty then it cannot be enforced.
(iv) The possession of the property or of any part thereof must have been taken by the
transferee in part performance of the said contract.
The important requirement is that the transferee either have the possession of the property or
must have taken the possession after the contract is made. The right of transferee over the
property which under taken or continued in possession is dealt in detail as to their differences
and requirements and what right do the transferee have when the property is in the possession
of him or under any other person claiming under him.
(v) Some act to further the contract must have been done by the transferee.
(vi) The transferee have performed or be willing to perform his part of the contract19.
It is essential condition that the transferee must be willing to perform his part of contract.in
case Jacob Private Ltd v. Thomas Jacob20, the Kerala High Court held that willingness of
section 53A must be absolute and unconditional.
When the above given requirement are fulfilled, the transferee is entitled to claim under the
section 53A.
EXCEPTION:
Section 53A lays down an exception. A transferee for consideration having no notice of the
contract or its performance is not affected by the Doctrine of Part Performance. The proviso

15
S.D.P. Sabha Baijnath Co- operative Multipurpose Society Ltd v. State of Himachal Pradesh, 67 AIR NOC
(HP.HC:1984).
16
Yadav Motors v. Hitendra Kumar Ahuja, 6 ALT 575, AIR 144 (All.HC:2006).
17
Govind Prasad Dubey v. Chandra Mohan Agnihotri, 4 MPHT 26, AIR 159 (MP.HC: 2009).
18
Bobba Suramma v. Peddireddi Chandramma, Andh LT 743, 2 Andh WR 357, AIR 568 (AP.HC:1959).
19
Sadashiv Chander Bhamgare v. Eknath Pandharinath Nangude, 4 CTC 465, 3 MhLj 1131, AIR 378
(BOM.HC:2004).
20
Jacob Private Ltd v. Thomas Jacob, AIR 249 (Ker.HC:1995).

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to section saves the right of a transferee for consideration 21. Any right which the transferee
under the unregistered document may have on the strength of the part performance of the
contract against the transferor would not be of any avail against a bona fide transferee for
value having no notice of the previous transaction held by the Supreme Court in the case
Hemraj v. Rustomji22. However the exception is subject notice as explained under
Explanation Ⅱ to section 3 that is the transferee should have made all reasonable and possible
enquires regarding the properties, encumbrance, possession, etc.
NATURE OF TRANSFEREE’S RIGHT UNDER SECTION 53A:
The transferee’s right under section 53A are as follows23:
1. No title or interest in property: The section does not affect the ownership right of the
transferor who remains full owner of the lands till they are legally transferred by the sale
deed to the transferee.
2. Passive equity: Section 53A provides a right of defence which can be used only as a
shield not as a sword in India. The scope of the section is limited because no right of
action is available to transferee.
In a case Prabodh Kumar Das v. Dantamara Tea Co. Ltd 24, the Privy Council held that in
India the equity of part performance was not an active equity. It do not give any right to
the transferee who is in possession of the property under an unregistered contract of sale.
6. DIFFERENCE BETWEEN THE ENGLISH LAW AND INDIAN LAW
The important points of difference between the English equitable doctrine and Indian law are
as follows25:
1. The English doctrine applies to oral and written contracts, but in Indian law it is restricted
to be applied only to contracts which is written or signed by the transferor or on his behalf
from which the terms necessary to constitute the transfer can be ascertained.
2. Under the English law both the transferor and the transferee can claim as plaintiff that the
contract be specifically performed and even anyone of them can resist a suit by stating that
his right has been infringed due to violation of the contract but under Indian law the
transferor is debarred from enforcing against the transferee any right with respect to the
property of which the transferee has taken possession other than a right expressly provided in
the terms of the contract and the transferee cannot sue for any declaration on the ground of
part-performance.
3. Under the English law, part-performance of a contract gives rise to an equity but under
section 53A the part-performance gives rise to a statutory right of defence. The Indian law
gives the party to relying upon it only if there is some lack of formality in their written
agreement or document.
4. The Doctrine of part performance under English law can be used as shield as well as sword
where as in Indian law it can be used as only shield.
21
Singh, supra, at 163.
22
Hemraj v. Rustomji, AIR 503 (1953).
23
Urwashi Ahuja, Doctrine of Part Performance, Law Times Journal, (9/10/2019, 14:25 PM),
http://lawtimesjournal.in/__trashed/#_edn9.
24
Prabodh Kumar Das v. Dantamara Tea Co. Ltd, 1 ILR 250 (Cal.HC:1939).
25
Singh, supra, at 168.

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 7. CONCLUSION
To conclude, The phrase part performance is a misnomer. The doctrine of part performance is
an equitable doctrine which is embodied in section 53A of the Transfer of Property Act,
1882. This section focuses on the objective of stopping a transferor or its legal heirs from
taking advantage of transferee due to the presence of unregistered document. This section
gives effect to the equity of part performance and has introduced the doctrine of part
performance into the Indian law. The section furnishes statutory defence in order to enable a
party to maintain possession in presence of an unregistered document even though the
transferee had performed his part of the contract. This section imposes a statutory bar on the
transferor but it does not confer any title over the property in question on the transferee. Thus,
the transferee cannot file a suit in order to declare his title to the property and recover
possession on the basis of the title so claimed. The right given by this section can be enforced
by the transferee only as shield a under the Indian law. The transferee cannot claim title under
this section just because of the fact that he has fulfilled the conditions as laid down under this
section.

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 8. BIBLIOGRAPHY
Books referred:
1. Dr. Avtar Singh, The Transfer of Property Act (4th edition, 2016).
2. Poonam Pradhan Saxena’s, Property Law (2nd Edition, 2013).
3. Transfer of Property Act, 1882.
Online sources:
1. Case mine, www.casemine.com
2. Indiankanoon, www.Indiankanoon.com
3. Urwashi Ahuja, Doctrine Of Part Performance, Law times journal,
http://lawtimesjournal.in/__trashed/#_edn9.
4. Ankita Singh, The Doctrine of Part Performance, Academike,
https://www.lawctopus.com/academike/doctrine-of-part-performance/.
5. Vijayalekshmi Omana, Part Performance: Contract: Essentials, Sense of Law,
https://senseoflaw.blogspot.com/2010/11/part-performance-contract-essentials.html

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