The doctrine of part performance is an equitable doctrine that was included to prevent fraud and illicit advantage based on the document’s non-registration. This doctrine is founded on the concept, Equity considers what has been done that should have been done.
Essentially, the doctrine states that the transferor or any person claiming under him is barred from enforcing any right in respect of the property of which the transferee has taken or continued in possession against the transferee and any person claiming under him, unless the right is expressly provided by the contract term.
The doctrine of part performance is enshrined in the provisions of The Transfer of Property Act, 1882.
Section 53-A of the Act, deals with definition of the doctrine and it says:
When 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 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.
Illustration: A contract to transfer his immovable property to B by way of sale and place B in possession of the property prior to the execution of a regular Sale-Deed. If A later refuses to execute a conventional instrument of sale and launches an eviction suit against B, treating B as a trespasser, the contract is said to be partially executed. Then B can argue that A’s claim is unjustified because the transfer contract in his favour has only been partially fulfilled and that A should not be permitted to go back on his promise.
1. The contract must be of immovable property
The contract must be for a monetary value.
The contract must be signed in writing by him or on his behalf.
He or she must meet certain requirements in the contract for the transfer of immovable property.
It is necessary to register the contract or the agreement to sell.
The document’s language must be such that the terms are certain and not ambiguous; they must be reasonable and plain; otherwise, the theory does not apply.
2. The person to whom it is transferred
If the property or a portion of it is already in custody, or if the property is in possession, the same thing will happen.
The act of taking possession must be performed in the deal’s exercise section.
And, in order to facilitate or invoke the contract’s section, the transferee who was still in possession of the contract must take some action to advance it.
3. The person to whom the property is transferred is willing to perform the contract or part of it.
4. Unless the rights were clearly indicated in the contract terms, the person transferring the property or anyone acting on his behalf cannot claim any rights on the property on which the person to whom the property is transferred resides or has possession.
5. If the contract has not been concluded in the manner provided by the statute, the doctrine of part performance cannot be used.
Scope of Doctrine of Part Performance:
Only written and valid contracts are covered by the Part Performance Doctrine. It does not apply to invalid or oral agreements. The transferor must sign the contract and it must be in writing. The transferee has taken ownership of the property as part of a contract, and he must be ready and willing to keep his end of the bargain. This part applies not only to sales contracts, but also to all other types of transfer for consideration contracts. The philosophy is designed to be employed as a shield, not a sword, according to (Jacobs Private Limited vs. Thomas Jacob )
The objective of Doctrine of Part Performance:
1. Both the transferor and the transferee are required by law to complete a transfer. The transferee is normally expected to pay the consideration under the contract’s terms and to conduct the transfer act in the way prescribed by statute; the transferor is responsible for the transferee.
2. Section 53A focuses on preserving the transferee’s right to retain ownership of the property if the transferee is not liable due to the transferor’s failure to complete the convey document in the manner required by statute.
3. Section 53A protects the transferee’s right to keep the property if the transferor fails to complete the convey instrument in the prescribed manner.
4. The transferor has the right to defend himself in order to protect his property.
5. In the Indian legal framework, this section impacts partial equality and partial inclusion of the idea of partial results.
6. This section affects partial equality and partial inclusion of the idea of partial results in the Indian legal framework.
7. The major goal of this clause is to prevent the recipient or parties from claiming title in a way that is detrimental to the interests of the other contracting party who has acted as a result of the agreement.
8. This law allows the accused to keep his property safe from the transferor or those claiming his right under him, such as his heirs, assigned individuals, and legal agents.
9. This clause imposes a contractual bar on the transferor, preventing the transferor from gaining ownership of the property in question. The transferred party is subsequently barred from bringing an action to assert his rights to the land and reclaim ownership based on the asserted title.
10. The transferee may continue to utilize his right as a shield, but he will not be permitted to use it as a separate claim, either as complainants or defendants, because he has met the conditions set forth in this section and does not assert the right under this clause.
This notion is crucial in safeguarding the transferee’s interests. When any type of transfer deed is created, it is apparent that the transferee is responsible for paying the payment in exchange for the property. However, the transferee’s possession should be protected, which is where this doctrine comes into play. Many times, there is just a mutual agreement or a contract signed on a piece of paper or by any other informal means, and in furtherance of that, the buyer does something so that the transferor cannot encroach or ask for eviction at a later stage. Such protection, or defence, must be available to the transferee. This legislative defence has been granted by the courts, although some of its unclear parts require further clarification.
Legal Service India
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