Part Performance under the Transfer of Property Act : The Law

Justice V.K. Jain
Delhi High Court

The Delhi High Court in a recent decision in Panchi Devi v. Omwati has discussed the broad principles of 'Part Performance' under S. 53 A of the Transfer of Property Act. While discussing the law and authorities on the subject, Justice V.K. Jain has held that an oral Agreement to Sell cannot be enforced under S. 53 A of the Transfer of Property Act. The relevant text of the judgment is reproduced hereunder; 

7. As regards the oral Agreement to Sell, pleaded by the defendant, the law does not protect the possession of a person who claims to have obtained it under an oral Agreement to Sell in his favour. Section 53A of Transfer of Property Act reads as under:-

"53A. 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 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 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 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]." It would be seen that the possession of a person is protected under Section 53A of the Act only if he claims it under a written contract to transfer the property to him for consideration. Unless a written agreement is set up, the provisions of Section 53A of the Act do not come into play and consequently, the person claiming possession under the oral agreement is not entitled to defend his possession.

8. In Nathulal v. Phool Chand 1970 2SCR 854, Supreme Court while interpreting Section 53-A culled out the following conditions to be fulfilled for making out the defence of part performance to an action in ejectment by the owner, as under:-

(i) that the transferor has contracted 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;

(ii) that 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;

(iii) that the transferee has done some act in furtherance of the contract; and

(iv) that the transferee has performed or is willing to perform his part of the contract.

In Sardar Govindrao Mahadik v. Devi Sahai 1982 2SCR 186, it was reiterated that to qualify for the protection of the doctrine of part performance it must be shown that there is an agreement to transfer of immovable property for consideration and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.

Supreme Court in Rambahu Namdeo Gajre v. Narayan Bapuji (2004) 8 SCC 614, held that the doctrine of part performance aims at protecting the possession of such transferee provided certain conditions contemplated by Section 53-A are fulfilled. These conditions are: 

(i) there must be a contract for transfer for consideration of any immovable property,

(ii) the contract must be in writing, signed by the transferor or someone on his behalf,

(iii) the writing must be in such words from which the terms necessary to construe the transfer may be ascertained,

(iv) the transferee must in part performance of the contract take possession of the property, or of any part thereof,

(v) the transferee must have done some act in furtherance of the contract, and

(vi) the transferee must have performed or be willing to perform his part of the contract.

9. Thus, if the plea taken by the plaintiff is accepted, the possession of the defendant is unauthorized, her tenancy have been terminated. If the plea set up by the defendant is accepted, her possession is still unauthorized since she is not claiming a written agreement in her favour and the possession under an oral agreement is not protected by Section 53A of the Act.