Section 53 - A. Part performance:
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 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 therefor 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.
Doctrine under the Act:
By the Amending Act of 1929, a new section, Section 53 - A, has been added. Under this section if the conditions laid down therein are fulfilled, a person in possession of the property can defend his possession although the contract, under which he holds possession, is not registered as required by the law or the instrument of transfer is not completed in the manner required by law. Section 53 - A is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession, but does not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease. This section is only available as a defense to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. (Ibid). After Section 53 A was enacted, the only case in which the English doctrine of equity of part performance can be applied in India is where the requirements of Section 53 - A are satisfied.
The requirements for the section are:-
1.There must be a contract to transfer the property.
2.It must have been partly performed.
3.The transferee should have performed or be willing to perform his part of the contract.
Transferee for value without notice:
As is evident from the proviso, the doctrine of part-performance as embodied in this section cannot affect the right of a transferee for the value without notice of the previous contract of its part-performance. If A contracts to sell his immovable property to B and puts him in possession before any sale- deed is executed, the contract is said to be partly performed and A cannot eject him on the ground that the deed has not been executed. But suppose A, after making the contract with B and putting him in possession sells the property to C, who has no notice of the contract between A and B, B cannot resist C's right to get the possession of the property.
Rabeya Akter Akhi
Department of Land Management & Law
Jagannath University, Dhaka
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