Part performance is an important provision in property law that protects the interest of the buyer or transferee. The Doctrine of Part Performance is mentioned in Section 53A of the Transfer of Property Act (TPA) of 1882. It safeguards the rights of the transferee even if the property is not formally registered.
The Transfer of Property Act 1882 governs transactions related to property transfer in India. It establishes fairness and transparency in property transactions, ensuring equal distribution of legal power. It has various provisions and sections that imply various conditions to safeguard the rights of involved parties. One of its key sections is Section 53A, which introduces part performance in property law.
What is the doctrine of part performance in the Transfer of Property Act?
The doctrine of part performance in property law enables a person to protect property possession even if the contract has not been registered or formalised. Hence, transferees (the person receiving the property) who have taken possession or made improvements based on an oral agreement or an unregistered agreement can safeguard their right to remain in possession of the property.
Section 53A of the Transfer of Property Act (TPA)
Some of the key provisions under Section 53A of the Transfer of Property Act (TPA) are:
- A written contract is necessary for the transfer of immovable property.
- The transferee must have taken possession of the property or already be in and continue in possession.
- The transferee must conduct some act in furtherance of the contract.
- The transferee should be willing to perform their part of the contract.
Difference between part performance and specific performance
| Aspect | Part Performance | Specific Performance |
| Nature of remedy | Defensive right of the property buyer | Proactive right of the individual |
| Objective | Protects property possession of the transferee | Compels the transferor to complete the transaction |
| Legal provision | Section 53A of the Transfer of Property Act | Specific Relief Act, 1963 |
| Purpose | Written contract, possession by transferee, act in furtherance, willingness to perform | Valid contract and failure of one party to perform |
| Primary use | Prevents transferor from evicting the transferee | Enforces the fulfilment of the contractual obligations |
| Possession | Protects possession already taken | Not necessarily concerned with possession |
Elements of the doctrine of part performance
- Existence of an agreement: A valid agreement is mandatory between the parties for property transfer, even if it is not in writing or registered.
- Payment of consideration: The transferee must have paid or agreed to pay the consideration, either fully or in part, as per the terms of the agreement.
- Taking possession or making improvements: The transferee should have taken possession or done substantial acts of improvement on the property based on the agreement.
Landmark judgment by Supreme Court on part performance
In a landmark case of Saradamani Kandappan vs S Rajalakshmi (2011), the Supreme Court gave a judgement in favour of the doctrine of part performance.
The case was related to an oral agreement for the sale of immovable property between Saradamani Kandappan and S Rajalakshmi. Despite the agreement being informal and unregistered, the Supreme Court ruled to protect the rights of the transferee. It ruled that the transferee had the right to protection under Section 53A of the TPA, 1882. This provision ensures that even if a property agreement is not formalised or registered, the transferee can defend their possession if they have acted on the agreement.
Housing.com News Viewpoint
The doctrine of part performance in property law under Section 53A of TPA brings transparency in property transactions. It gives legal security to the property buyer, known as the transferee, in case the transferor backs out and does not comply with the written agreement. When engaging in such property transactions, one should conduct a background check and inspection to prevent legal disputes.
FAQs
As per the doctrine of priority, when multiple transfers of the same property take place, the first transfer is prioritised.
The doctrine of part performance is mentioned under Section 53A of the Transfer of Property Act. What is the doctrine of priority in the Transfer of Property Act?
What is the section of part performance in the Transfer of Property Act?
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