• Doctrine of part performance

Please explain the doctrine of part  performance as applied under the transfer of property Act, 1882.
Asked 4 years ago in Property Law from Gorakhpur, Uttar Pradesh
Read a commentary on Transfer of Property Act.
Ashish Davessar
Advocate, Jaipur
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The general ground upon which the doctrine is based is prevention of fraud. It is said that where one party has executed his part of the agreement in the confidence that the other party would do the same, it is obvious that, if the latter should refuse, it would be a fraud upon the former to suffer this refusal to work to his prejudice

The Doctrine of Part Performance is a very important provision under the Transfer of Property Act. According to the statutory provisions, a person must have contracted to transfer immovable property for a consideration. The transfer should be in writing and duly signed by either the transferor or his agent. From the terms of the document, it should be reasonably certain that the intent of the parties is to transfer the immovable property from the transferor to the transferee.

In addition, the transferee must have, in part performance of the contract, taken possession of the property or any part of the property. In case the transferee is already in possession of the property, he should continue in possession in part performance of the contract and must have also done some act in furtherance of the contract. Also, the transferee must either have performed his part of the contract or must be willing to do so.

If these conditions are satisfied, the transferor is debarred from enforcing any right in respect of the property against the transferee. He can only enforce a right expressly provided by the terms of the contract entered into between the parties.

This is despite the fact that a contract may not be registered and completed in the manner as prescribed by law. These provisions have been enacted to give equity. The objective is to prevent a transferor or his successor from taking advantage of the fact that the document is not registered, provided the transferee has performed his part of the contract.

These provisions tend to furnish a statutory defence to a person who has no registered title deed in his favour to maintain his possession, if he can prove that a written and signed contract in his favour has already been executed. Also, he must have completed his part of that contract.

In order to be eligible for protection under the Doctrine of Part Performance, it must be shown that there is a contract to transfer property for a consideration.

Further, the contract must be in writing, signed by the person sought to be bound by it, and the terms necessary to constitute the transfer should be ascertainable with reasonable certainty from it. These are the pre-requisites to invoke the provisions of Section 53A of the Transfer of Property Act.
Ajay Sethi
Advocate, Mumbai
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