This article is written by Pujari Dharani, a B.A. LL.B. student at Pendekanti Law College, affiliated with Osmania University, Hyderabad. The article talks about Section 53A of the Transfer of Property Act, 1882, including its meaning, ingredients, applicability, and amendment. In addition to this, there is a detailed explanation of its foundational doctrine of part performance and how it originated in English law, the difference between English doctrine and Section 53A, a brief of the Transfer of Property Act, and landmark judgements, among other things.

This article has been published by Sneha Mahawar.​​ 

Introduction

Imagine a situation where A, the buyer, enters into an agreement for sale with B, the seller, to buy B’s flat for Rs. 50 lakhs. A proceeded with the agreement and paid Rs. 7 lakhs in advance to buy the flat from B. After receiving the advance from A, A took possession of B’s flat with the promise to pay the remaining amount within a reasonable time. Here, A is the transferee, and B is the transferor. After a reasonable period of time, the buyer, A, is ready to fulfil his complete performance of the contract and gain full rights over the flat by paying the remaining agreed amount, i.e., Rs. 43 lakhs. But B wants to terminate the agreement with A because he received a better offer from a third party, C, who conveyed his intention of buying his flat for a better rate of Rs. 70 lakhs. Then, B, by using his rights as the owner of the flat, asks A to hand over possession of the flat. 

Here, the reasoning made by B may be a valid one, but don’t you think there is an injustice done to A? Absolutely, yes. Here comes Section 53A of the Transfer of Property Act, 1882, as a saviour. It provides certain protections to the buyer, also considered a “transferee.” Let’s learn what those protections are by analysing Section 53A in depth.

Transfer of Property Act, 1882

The Transfer of Property Act, 1882 (hereinafter referred to as the “Act”) is one of the colonial laws and was enforced on July 1st, 1882. Before the Act, property disputes in India were governed by the British, following English legal principles such as equity, justice, and good conscience, which created uncertainties while dealing with such cases. These issues were recognised by the Privy Council, which ordered the establishment of the Law Commission to codify proper civil laws to make property laws suitable to Indian customs and culture.

This legislation was made to be an exhaustive act that contains rules and regulations concerning the transfer of property between two individuals. It is a regulating law that includes features, elements, and conditions relating to property transfer. The Act was, indeed, based on the provisions of English property law, i.e., the Law of Conveyancing and Property Act, 1881. 

Despite passing a comprehensive Act, there were still many ambiguities in the provisions. Due to this, in 1927, a special committee was formed to draft the Act with a few amendments, which gave rise to the enactment of the Transfer of Property (Amendment) Act, 1929. Before 1929, the application of this English equitable doctrine was neither definite nor consistent. One such amendment is inserting Section 53A to formally recognise the old English equity of part performance or doctrine of part performance and make it retrospective in effect. 

Scope

The scope of the Act is limited. The Act provides for the transfer of property “inter vivos,” i.e., between living persons. Thus, a transfer is said to be valid only if the transaction is done between two living persons. However, there are a few exceptions to this.

The transfer of property can be executed by a living person through two methods. Firstly, through the acts of the parties and secondly, through the operation of law. The Act applies only to the former, not the latter category. 

The word “property” is not defined. Hence, all kinds of property, such as movable and immovable property, are applicable. Indeed, intangible properties, such as copyrights, ownership, and tenancy, can also be described as property. Although provisions of the Act may refer to movable property, most of the provisions deal with immovable property.

Key concepts relating to the transfer of property

To comprehend the concept of the doctrine of past performance stated under Section 53A of the Act, it is essential to comprehend the following key concepts:

Transfer of Property

The transfer of property is governed by the rule of “nemo dat quod non-habet,” which states that the transferor can only transfer those interests that he himself holds to the transferee. According to Section 5 of the Act, a transfer of property means conveying the property by one living person to another living person or persons, or himself and one or more persons. The conveyance can be in the present or future, but the said act should be performed. In addition to this, Section 8 of the Act states that when a transferor transfers an immovable property to a transferee, he also transfers all rights and interests related to the property.

There are various ways to transfer a property. Those are as follows:

• Relinquishment;
• Sale;
• Gift;
• Short-term mortgage;
• Lease; and, 
• Leave and licence agreement

For example, A transferred his property to another party, i.e., B, after receiving consideration at A’s request. Such conveyance is also executed by registering in the name of B. In this case, the transfer of property is valid.

Properties that can be transferred

The term “transfer” refers to a kind of process that converts one estate into another. Transfer conveys a transaction in which one party loses the possession of a property and the other party tasks such possession from the former. There are essential elements that constitute a valid transfer. They are as follows:

• The property in question should be transferable which is defined in Section 6 of the Act. 
• Two or more persons should be parties for transferring the property from one party to another. The person can be a company, an association or a body of individuals, whether incorporated or not. The person who transfers the property is the ‘transferor’ and the other person to whom the transfer is made is the ‘transferee’.
• The person should be competent to transfer the property according to Section 7 of the Act. That is, the transferor should have the competency to perform the said act. Section 7 of the Act states that any person who is competent to contract is eligible to transfer the property in such manner that is prescribed by law for the time being in force. If the person is of sound mind, attains the age of majority, i.e., 18 years and is not disqualified by law, he or she is said to be competent to contract, including transfer of property. However, the same does not apply to a transferee, but he or she should not be disqualified as mentioned in Section 6(h)(3) of the Act.
• Consideration and object of transfer of property must be lawful.
• For a valid transfer of movable property, mere conveying of possession with proper intention, for the same terms, in the same manner, is required. Registration of such transfer is not mandatory under Section 18(d) of the Indian Registration Act, 1908, which also includes instruments like wills, leases of immovable property for less than one year, etc. On the other hand, registration is mandatory for instruments like the gift of immovable property, a few non-testamentary instruments, leases of immovable property for more than one year, certificate of sale by public auction, endorsement on a mortgage-deed, etc, in accordance with Section 17 of the Indian Registration Act, 1908.
• Mere delivery from one person to another does not constitute a valid transfer of immovable property. The said property which values at more than Rs. 100 should compulsorily be registered under the Indian Registration Act, 1908.
• The transfer of property can be made at a future date also. However, at the future date, the property must be present in the name of the transferor. The transfer of future property whose existence is uncertain is not a valid transfer.

Section 53 of the Transfer of Property Act, 1882

In general, the motive of an act is taken into consideration in the eyes of the law while evaluating civil liability. The rule is the opposite when criminal law is applied because mens rea is an essential element to constitute a crime. In civil law, the motive of the parties who are acting is irrelevant. Thus, a wrongful act does not become legal just because the motive of the wrongdoer is fair enough. Likewise, just because an individual has an ulterior motive, the lawful act done by him does not turn out to be illegal. However, this rule has a few exceptions, one of which is Section 53 of the Transfer of Property Act.

This Section talks about the doctrine of fraudulent transfer. It deals with two aspects. One, the transfer of property was made with a motive to defeat or delay the creditors of the transferor, and two, the transfer of property was made with a motive to defraud the subsequent transferee. The section was incorporated to protect the interests of a creditor of the transferor and the subsequent transferee of the property against fraud. 

Every transfer of property with such above-mentioned motives on the part of the transferor is voidable at the option of the party so defeated or defrauded, i.e., the creditor or subsequent transferee. Because of this, the burden of proof is also shifted to the creditor or subsequent transferee.

For instance, a fraudulent transfer takes place when A transfers her property to B without giving possession and ownership of the said property to B to keep it out of the reach of her creditor. Here, the said transfer is voidable at the option of B.

A civil suit may result from a fraudulent transfer of property. At the request of the aggrieved creditor, the court may declare the said transfer of property void. 

What is Section 53A

Although the concept of “part performance” has its roots in English law, Section 53A of the Transfer of Property Act, 1882, has provided legal recognition to that doctrine in India. As already stated, Section 53A was added in 1929 to the Act via amendment. Thus, the doctrine of part performance retrospectively came into force in India. 

Object of Section 53A

The object of the addition of this Section to the Act via amendment in 1929 was to adopt the English doctrine of part performance, which is an equitable doctrine. The other major aim is to prevent fraud and misbehaviour on the part of the transferor, who tries to take unlawful benefit from a situation where the registration of documents is not done. By incorporating Section 53A in the Act, the fundamental aim of safeguarding the transferee’s right to property in incidents where the transferor acts maliciously and dishonestly by denying to perform his part of the contract is achieved.

Also, the Section aims to prevent injustice caused to the transferee. If the transferee, who fulfilled his or her obligations under the contract in the hope that the other party would do the same, was denied any recourse, it would be a grave injustice. The Section gives a defence measure to the transferee to preserve his rightful possession of the property.

Explanation of Section 53A

Section 53A provides that the transferor is expressly barred from enforcing any right pertaining to the transferred property other than that granted under the terms of the contract against the transferee. This bar imposed on the transferor applies only when the transferee takes possession of the immovable property in part performance of a written contract and he has either already executed or is willing to perform his part of the contract. In these circumstances, the transferor cannot eject the transferee from the property on the mere claim that the absence of the legal formalities in evidence, such as the contract of sale or transfer, is not registered or completed as prescribed by law and that the legal title of the property has not been transferred to the transferee yet. Thus, the claim of title by the transferor is barred or estopped by Section 53A, giving the transferee the right to defend his or her possession and ownership of the property. However, the contract should at least be signed or stamped. 

When we consider the phrase “part performance of a written contract,”  it means those acts that have been partly performed to execute a contract, not those acts that are preparatory, incidental, merely accommodating, or any other arrangements. Let’s take an example where the buyer, A, agrees to the offer made by the seller, B, regarding the purchase of a flat in his apartment where the agreed consideration is Rs. 30 lakhs. One day, A withdrew Rs. 15 lakhs from his bank account and took that to his digital locker at home. This act by A is not said to be part performance. But if A, instead of keeping Rs. 15 lakhs in the locker, gave it to the seller, B, it will be considered an “act of part performance”. The rationale based on this conclusion is that a contractual obligation of A is to pay Rs. 30 lakhs to B, for which, in return, A will obtain possession, ownership, and all other rights to the immovable property from B by registering the property in A’s name. A paid B Rs. 15 lakhs outside of Rs. 30 lakhs, which is just a part of his total performance. So, in this case, A has done part performance of his contractual duty.

Origin of the doctrine of part performance in English law

We frequently encounter many legal provisions that cannot be completely understood unless and until we look into their root or origin and intended use. One of those provisions is Section 53A, which requires examining how it was created before the core of the issue can be understood.

Flaws in Statute of Frauds, 1677

The principle of equity and the doctrine of part performance have their roots in English law. It was developed by the Court of Equity, which is also referred to as the “Courts of Chancery,” under its equity jurisdiction. Once the egalitarian legal concept of the part performance was recognised by the Courts of Chancery, the concept was incorporated into English laws. 

It was recognised in response to the harsh restrictions imposed by the Statute of Frauds, 1677. According to Section 4 of the Statute of Frauds, 1677, all contracts relating to the transfer of immovable property must be in writing. Since Section 4 explains that it is unlawful to transfer immovable property by oral agreement, the transferee is prohibited from acquiring any title to the property. Even though the statute aims to combat fraud in property transactions based on oral agreements, the strict application of the statute disadvantaged the transferee a lot. In this way, a genuine transferee, who performed his contractual duties by paying the price or consideration, whether in part or full and taking possession of the property as part of the agreement, was unable to obtain title or ownership of the property just because of the lack of legalities. Such transferees were left defenceless and harassed. 

Then, the principle of equity came into the picture to provide help to them. Equity, thus, protected those transferees who had bought the immovable property based on oral agreements and had fulfilled their obligations as per the terms of the agreement. Since that time, the equity of part performance has developed and gone through several stages to protect and preserve the interests of transferees who had diligently performed their part of the promises in the contract and were being troubled by the transfer due to the technical fault in the contract.

The two landmark cases that helped to develop the doctrine of part performance were Maddison v. Alderson (1883) and Walsh v. Lonsdale (1882). Apart from this, we can conceptualise the doctrine of part performance with the judicial interpretation of the following cases:

Maddison v. Alderson (1883)

This is the case that established the current interpretation of the doctrine of part performance. Maddison, i.e., the plaintiff in the present case, claimed the entire property of the deceased Alderson, i.e., the defendant. Maddison alleged that there was a verbal agreement between her and the deceased where the latter agreed to transfer his life estate by making a will in exchange for Maddison’s housekeeping services to the deceased for years without any wages. Maddison accepted Alderson’s offer and performed his part of the promise diligently. Subsequently, Alderson made a will to leave his entire property to Maddison. However, the written will, in which Maddison is the beneficiary, is invalid because it was not duly attested.

According to the plaintiff’s claims, she worked as a housekeeper to carry out the verbal agreement and to partially complete the contract. Lord Selborne, in the judgement, held that for the rule to be applicable, the conduct indicated in the claim for part performance must always be related to the alleged oral agreement. 

Lord Selborne delivered an undoubtedly historic ruling in the case of Maddison v. Alderson (1883), explaining the significance of the doctrine of part performance. The Court stated that the defendant is actually charged upon the equities arising from the acts done in the execution of the contract and not (within the meaning of the legislation) upon the contract itself. It further noted that if these equities were disregarded, there would be an injustice of such a nature that it is impossible to imagine what the legislation had in mind.

The judge further noted that the part performance could result in the equity that ultimately terminates the agreement, thereby protecting and preserving the transferee’s interests. 

Mahomed Musa v. Aghore Kumar Ganguli (1914)

In the case of Mahomed Musa v. Aghore Kumar Ganguli (1914), the application of the doctrine of part performance in India has been raised. The Privy Council, in this case, held that the equity of past performance may be used in the Indian cases in the same way that it was being used in English cases.

In the present case, a compromise deed was made in writing but not registered by the parties. However, the terms of the deed stated that the respective lands of the parties were divided among them in compliance with the compromise deed, and then both parties took possession of their respective lands. This deed was undisputed for many years. But, after forty years, the heirs of the parties challenged the compromise deed on the grounds that it was not registered. 

The Privy Council ruled that even if the deed was not registered, the fact that it was not written demonstrated that it was a legitimate document and so could not be rejected. It was observed that applying the principle of part performance, in the current case, would be acceptable. This judgement gave rise to debates as this was in direct violation of the provisions in the Indian Registration Act, 1908, which mandates that written documents related to an immovable property be registered to be legally acceptable.

G.F.C. Ariff v. Rai Jadunath Majumdar Bahadur (1931)

In the case of G.F.C. Ariff v. Rai Jadunath Majumdar Bahadur (1931), the Privy Council later changed its mind, deciding that the doctrine of part performance could not be applied to circumvent the explicit terms of the Indian Registration Act and the Transfer of Property Act in India (ex-post facto law, i.e., retrospectively applicable law). In the current case, an oral agreement that was not registered was in dispute.

Following the Mohammad Musa judgement, the defendant in the present case, who had already occupied the land, initially won the case in the Calcutta High Court. However, later, the Privy Council turned the judgement in favour of the plaintiff.

The Privy Council held, “Whether an English equitable doctrine should, in any particular circumstance, be applied to modify the impact of an Indian Statute may well be questioned; however, it is suggested that English equitable doctrine affecting the clauses of an English Statute (of Frauds) relating to the right to file suit upon a contract be applied by analogy to such a statute as the Transfer of Property Act and with such a result as to create, without any writing, an interest which the statute itself contemplates.”

The arrival of the doctrine of part performance in India

Although the doctrine, developed by the English Courts, was frequently applied in Indian cases after the Mohammud Musa case, there was still a significant amount of ambiguity and controversy regarding the applicability of the doctrine of part performance in India due to the lack of legislative recognition. These judicial interpretations by the Privy Council in various cases make it clear that the development of the doctrine of part performance was difficult in India because the majority of the colonial rulers adhered to the idea that there could not be any room for evolution unless strict restrictions were imposed. However, a special committee was established in 1927 to decide the applicability of the English doctrine of part performance in India, as mentioned in the case of Mahadeo Nathuji Patil v. Surjabai Khushalchand Lakkad (1993). 

Findings of the special committee and its result

The committee looked into the pros and cons of the concept of part performance as it developed in England, and in less than three months, it submitted its report, which contained its findings of demerits and recommendations for addressing them. It also gave suggestions for reforming the Act via amendments. The special committee concluded that ignorant and uninformed transferees could perform their duties and fulfil their promises as part of an agreement between the transferee and the transferor of immovable property, even before being taken advantage of by transferors. The committee further found that labelling a transferee as a trespasser when they take control of an estate via diligence and in accordance with the commercial agreement is unfair and unjust. 

The committee also took into account how the principle of part performance would be affected if the limitation period expired. The committee suggested that the lapse of the limitation period would have had no bearing on the relationship between the transferor and transferee in this case and, thus, no impact on the protections and safeguards provided by the doctrine of part performance. This was agreed to by the Supreme Court of India in the case of Mahadeva and Ors. v. Tanabai (2004).

Later, its legislation was passed in 1929 with a few minor amendments. To formally recognise and give legal status to the old English equity of part performance, sometimes known as the doctrine of the principle of part performance, Section 53A was added to the Transfer of Property Act, 1882, as per the suggestions of the special committee. Also, the statements made under the headings of reasons and objects of the Amendment Act (Act No. XX of 1929) highlight that the amendments made to the Act have their basis in the findings of the special committee.

The doctrine of part performance under Section 53A

This doctrine has its basis in the principles of equity, justice, and good conscience. The doctrine has its foundation in an equitable maxim, i.e., “qui aequitatem quaereret, aequitatem agendum est,” which means “He who seeks equity must do equity.” In relation to Section 53A of the Act, this maxim is defined by Ballentine’s Law Dictionary as allowing the party requesting the cancellation of an agreement to give the defendant the same position that it had before the transaction was sought to be voided.

In the law of contract, no rights have flowed from one party to another until the contract is complete, i.e., only when the performance is completely fulfilled. But, the doctrine of part performance is based on the notion that when two living persons enter into an agreement and one party to the agreement permits the other party to act in pursuit of the agreement, that other party willfully creates equity, i.e., fairness, with the belief that the other party will also perform the terms of the agreement. And the first party is ineligible to object to the performance of the agreement in the future on the grounds that all legal formalities were not met. In instances where the transferor might be acting fraudulently by refusing to fulfil his part of the promise as per the agreement, the doctrine of part performance comes as a saviour to protect the interests and rights of the transferee and safeguard his or her possession of the transferred property. Thus, the doctrine ensures that the transferee is entitled to either reimbursement or the performance of the contract in cases where the transferor drags its feet.

Consider a case where A, the transferor, and B, the transferee, signed a contract relating to the transfer of immovable property. Additionally, B obtained possession of the property from A in accordance with the terms of the contract. However, despite the aforementioned happenings, A dishonestly rejects the first contract made with B and enters into another contract with C, a third party, to transfer the immovable property. In this way, A put the first contract aside without performing his part of the promise. 

The doctrine of part performance right predicts and recognises the potential of happening of the above-mentioned instances and attempts to safeguard the genuine transferee who despite creating equity suffered the loss. As already stated, despite having its foundation in English law, the doctrine of part performance received legal as well as statutory recognition in 1929 with the insertion of Section 53A into the Transfer of Property Act, 1882.

Comparative analysis between the English doctrine of part performance and its Indian counterpart 

Even if Section 53A was added to the Act to adopt the English doctrine of part performance, there are still many vital differences between the English principle of part performance and Section 53A of the Act. As noted by G.M. Sen in his journal article titled “The Doctrine of Part Performance,” the scope of Section 53A of the Act is significantly limited, compared to the corresponding principle of part performance in English law.

Ingredients of Section 53A

In instances where the transferor wishes to expel the transferee from an immovable property that is transferred to him, Section 53A of the Act is concerned with defending the transferee. But, the protection from Section 53A is given only when a few ingredients are satisfied, as stated in Madan Mohan v. Gauri Shanker and Anr. (1987). Therefore, to get relief by virtue of Section 53A, the mere initiation of an action for part performance by the transferee is not sufficient; rather, a few requirements should be fulfilled to make the legal action effective. Even the Bombay High Court in the case of Smt. Kamalabai Laxman Pathak v. Onkar Parsharam Patil and Ors. (1994) has laid down importance to the ingredients of Section 53A of the Act.

Section 53A and various judicial pronouncements clearly laid down the following ingredients or essential elements that are necessary to fulfil.

Contract for transfer of an immovable property

Before all ingredients, the most fundamental ingredient is that there must be a contract between two parties to transfer an immovable property. If there is no such contract in the first place, then there will be no room for dispute. Even if someone disputes in court, Section 53A of the Act does not apply if no contract is made between the parties to the suit.

Just merely entering into the contract is also not sufficient. The fulfilment of a few essentials is necessary. Let’s look at what they are, especially in relation to the applicability of Section 53A.

Contract in writing

The contract should always be in writing to make the transfer of an immovable property legally valid, and only then is the application of Section 53A possible. Otherwise, the transferee cannot avail himself of the protection that is provided by Section 53A of the Act.

The Supreme Court held that the use of the equitable doctrine of part performance necessitates a written agreement for the transfer of property in the case of Mool Chand Bakhru and Anr. v. Rohan and Ors. (2002). But the Supreme Court decided that the communications of the seller could not be interpreted as a sale agreement. The Court ruled that for a party to avail itself of the benefits of the doctrine of part performance as a defence, the contract must be one of the transfers of specific immovable properties.

If the transfer of immovable property results from an oral contract, Section 53A is not applicable. It was held in V.R. Sudhakara Rao and Ors. v. T.V. Kameswari (2007) that a person who is in possession of property solely based on an oral agreement of sale is not eligible for the protection of Section 53A. Additionally, the judges have explicitly said in Smt. Kalawati Tripathi and Ors. v. Smt. Damyanti Devi and Anr. (1993), that verbal agreements in India are not covered by the doctrine of part performance.

Duly execution of the contract

Making a contract in writing is not sufficient by itself. A properly executed contract is also required. It means the contract must be signed by the transferor or any other authorised person on his behalf. The person who wishes to regain possession of the property must also sign the contract, either personally or through an authorised agent. 

The Court determined, in Sh. Ashok Indoria v. Smt. Vidyawanti (2014), that the legitimacy of the written contract could not be questioned solely based on a dispute regarding the consideration, particularly in light of the fact that the transferor and his witnesses reportedly signed the document.

According to the judgement in M/s. Yadav Motors Rithani, Meerut, and Anr. v. Hitendra Kumar Ahuja and Ors. (2006), the transferee must sign the contract himself or any other third party to the contract on behalf of him who has received formal authorisation from the transferee. In this case, an affidavit by the owner of a property claiming that he had contracted to sell a portion of his property was not taken into account by the Supreme Court of India while determining whether or not the conditions of the Section had been met. 

It is not necessary to put all the minor details in writing while drafting a contract. Unfinished contracts of transfer, such as those that are not registered or attested, are also regarded as written contracts, provided the signatures of the transferor or his authorised agent are mandatory. 

Unregistered documents affecting an immovable property that must be registered under the Transfer of Property Act or the Indian Registration Act are allowed to be used as proof in case of an action for specific performance, as evidence to prove the part performance of a contract for attaining the benefits of Section 53A of the Act or to prove a collateral transaction not required by a registration instrument.

Reasonable certainty

When the contract is in writing and signed by the transferor, it is not said to be considered for application of Section 53A of the Act. The other criterion is the contents of the contract should make sure of being reasonably and strongly certain.  The ability to determine the terms of a written contract with a reasonable degree of clarity is one of the ingredients of Section 53A, as decided by the Allahabad High Court in the case of Smt. Hamida v. Smt. Humer and Ors. (1992). In other words, the terms and conditions of a contract required to form a transfer must be reasonably certain and expressly stated, that is, there should not be any vague or ambiguous terms or phrases. 

Section 53A is not considered applicable to those contracts where the clauses are unclear and difficult to understand. Hence, while drafting the contract, the parties should ensure that all the clauses, contents, and terms are easily comprehensible and clear enough and should not create any confusion for the person who is interpreting it. This was similarly stated and reaffirmed in the case of Govind Prasad Dubey v. Chandra Mohan Agnihotri and Anr. (2009).

In addition, as was observed in Mool Chand Bakhru and Anr. v. Rohan and Ors. (2002), the judge must reasonably be able to identify the contract’s clauses when establishing the precise nature of the agreement. The transferee’s argument would be undermined by the deal’s vagueness and uncertainty.

Valid contract

Apart from the above-stated conditions, it should be underlined that Section 53A applies only when the contract relating to the transfer of immovable property is valid in every reasonable way. That means all the essential elements of a valid contract should be met. In short, the contract in question should be legally enforceable under the Indian Contract Act, 1872.

If there is no agreement in the first place or the consent given is not free in the eyes of the law, then those agreements are considered void agreements. And Section 53A cannot be applied to void agreements. If parties to the contract execute an unregistered sale deed without even getting consent from the appropriate authority, the transaction is said to be void, and Section 53A of the Act is not applied.

Immovable property

As already stated, the Transfer of Property Act mostly deals with immovable properties. This statement directly conveys that Section 53A of the Act covers and applies to only those cases where the transfer of immovable property is dealt with. Even though it was backed by consideration, it does not apply to a contract for the transfer of movable property or goods. 

Even in the case of Hameed v. Jayabharat Credit and Investment Co. Ltd. and Ors. (1985), any clause permitting the owner to recover a vehicle leased under a hire purchase agreement for failure to pay instalments will not be covered by Section 53A of the Act. It was also held that the defence of part performance is not applicable to the possession and transfer of movable property.

The contract to transfer the property must be legal and for consideration

Even if all the above-stated ingredients are present, it is still not acceptable if either the consideration is absent from the contract or the consideration is illegal. The written contract pertaining to the transfer of immovable property must be backed by consideration because the presence of consideration is one of the essential elements of a valid contract, as expressly stated by Section 10 of the Indian Contract Act, 1872. This Act also states that “an agreement without consideration is void” in Section 25. As already stated, Section 53A is not applicable to void agreements; hence, it does not apply to those agreements where there is an absence of consideration.

The gift deeds, which are those contracts where consideration is not present, are excluded under the doctrine of part performance as embodied under Section 53A of the Act because the Section expressly states that it is reserved to only those contracts made to transfer property “for consideration.” The same is noted in the case of Piru Charan Pal and Anr. v. Minor Sunil Moy Nemo and Anr. (1972).

Only when the immovable property is transferred for consideration in accordance with the contract Section 53A does provide protection to the transferee. During partition, joint family property is justly divided among coparceners. In this case, Section 53A does not apply because partition is not a transfer of property due to the fact that the property is not transferred in exchange for a price or other consideration. The other example is a gift, for instance, which is transferred without consideration; this Section will not apply to those situations.

Transfer of or continuance in possession 

Besides all the previously mentioned ingredients, Section 53A of the Act itself evidently states that the transferee must have obtained possession of the immovable property in accordance with the terms of the written contract. In other words, to make Section 53A applicable to a case, the transferee, in order to fulfil his or her obligation under the written contract, must either acquire possession of the entire or a portion of the property or, if the transferee is currently in possession of the said property, must continue the possession while fulfilling his or her part of the obligation as per the conditions of the contract. The same is reaffirmed in the case of A.M.A. Sultan (deceased by LRs) and Ors. v. Seydu Zohra Beevi (1989).

In accordance with the judgement in Sardar Kamaljit Singh v. Suresh Chand (2010), this condition will not be applicable if the transferee has not yet taken possession of the property. According to the ruling in the case of Yenugu Achayya v. Eranki Venkata Subba Rao (1956), the transferee’s right under Section 53A is not affected by the fact that he had possession at first but later lost it.

Besides this, the court, in the crucial case of Durga Prasad and Ors. v. Kanhiyalal and Ors. (1979) made it clear that the transferee need not have total possession of an immovable property specified in the contract in order to avail himself of the benefits and remedies of Section 53A of the Act. 

Here, it is pertinent to note that the transfer or continuation of possession should be in compliance with a contract. As already stated, firstly, a contract between the transferor and the transferee is a must. Secondly, possession of the property is with the transferee in accordance with the terms of the contract. The transferor has transferred possession of the property as part of the fulfilment of the contract’s stipulations. If the contract or agreement of transferring or continuing possession is not made between parties, then the possession of the transferee is not viewed as an act of the performance of a contract.

Act of part performance by the transferee

The contract had to be partially fulfilled. There is no place in Section 53A for confusion regarding what might qualify as a “part performance” in accordance with the Section. According to this provision, the transferee must have acquired possession of the immovable property in question, either entirely or partially, from the transferor as a result of the contract. In cases where the transferee already holds possession of the property, retains the possession while performing a part of the contract, and takes action to further the contract, such as by making structural changes, building new structures, paying additional money, etc.

Transferring the possession of the property is not the only way to partially fulfil a contract. In the case of Nathulal v. Phoolchand (1969), it was explained that if the transferee is already in possession of the property while signing the contract for the transfer, the transferee should also engage in another additional conduct, called an “act of part performance,”  after signing the contract for the transfer to demonstrate that he or she has the commitment to uphold the contract and hence to make Section 53A applicable. 

If the transferee is simply maintaining the property of which he or she has received possession from the transferor, this is not sufficient to fulfil the ingredient of “part performance” as provided under the contract. The transferee is required to take some action to execute the contract. The contract should be clearly ascertainable, and there must be a genuine connection between the contract and the actions taken by the transferee to further the contract. In another case, Pannalal v. Labhchand (1954), the Court ruled that a contract can be advanced only through the distinguished conduct of the parties.

In the case of D. S. Parvathamma v. A. Srinivasan (2003), the tenant claimed ongoing possession of the property and sought part performance. The suit for a specific performance, however, was rejected by the Court. The Supreme Court held that because the tenant failed to provide any evidence of acts taken to carry out the agreement, the operation of Section 53-A would not be permissible.

Willingness to perform his part of the contract by transferee

The equity principle, which was reaffirmed in the case of B. Paramashivaiah and Anr. v. M. K. Shankar Prasad and Anr. (2008), states that “he who seeks equity must do equity.” This principle of equity is also the basis for the doctrine of part performance. To comply with this principle, the transferee must act responsibly and willingly uphold their part of the promise in the contract. It was established in the case of Andhra Graphite (P) Ltd., Marripalem, Visakhapatnam v. Jobbing Syndicate, Visakhapatnam (2010) that the transferee must fulfil his or her contractual responsibilities to make use of Section 53A of the Act. The transferee must also be ready and competent to carry out the contractual duties. 

In the case of Rani Sambhi and Ors. v. Lt. Col. (Retd.) R.L. Vashisht (2003), it was ruled that protection under Section 53A is an individual right. A person executing a part of the agreement is granted benefits and relief under Section 53A only if it can be proven that he was ready and well-prepared to perform his part of the agreement. It is necessary that the transferee be completely and unconditionally ready and willing. A person who refuses to uphold his contractual commitments cannot receive the benefits of the provision, i.e., Section 53A of the Act, according to the judgement delivered in the case of Chinnaraj v. Sheik Davood Nachiar (2002).

This is the last, but very crucial ingredient to be fulfilled for establishing protection under Section 53A of the Act. If the transferee does not claim that he or she performed the terms of the contract and is unable to convince the Hon’ble Court that he or she is willing to fulfil the obligation as provided under the contract, then the doctrine of part performance as embodied under Section 53A of the Act is not applied, as asserted under the judgement of Sohan Singh and Anr. v. Gulzari (1996).

Amendment to Section 53A and its consequences

Until 2001, Indian law allowed for the addition of unregistered documents as sufficient proof for seeking protection under the doctrine of part performance. The Registration and Other Related Laws (Amendment) Act, 2001 amended Section 53A of the Act along with other provisions of complementary statutes such as the Specific Relief Act, 1908, and the Indian Stamp Act, 1899. After the enactment of the amendment, Section 53A contains the phrase “the document, though needed to be registered, has not been registered.” It had a significant effect on the legal implications with respect to granting protection and remedies under Section 53A of the Act. Because of this, a person claiming safeguards under the Section may rely on such unregistered deeds to support their claim. However, the aforementioned clause was removed from the provision by virtue of an amendment in 2001. It is vital to detail the evolution of the history of such a requirement to fully comprehend the implications of his development.

Section 49 of the Registration Act, 1908, made it quite clear that any unregistered documentation relating to immovable property was inadmissible as proof of title until 1929. As a result, any documentation that is relied upon must always be registered to claim any title or benefit in relation to immovable property. Section 49 of the Registration Act, 1908, which addresses this matter, was revised in 1929 to include unregistered documents in requests for immovable property. Similarly, when Section 53A of the Act was initially included in 1929, documents were not required to be registered in order to be covered by the Section.   Unregistered documents, including an unregistered sale deed, were a valid form of evidence supporting the claim of Section 53A privilege. 

Afterwards, in 2001, the Act was amended to remove the statement that allowed unregistered documents to be accepted. Additionally, a similar provision, i.e., Section 49 of the Registration Act, 1908, underwent revision in 2001. Consequently, the situation became the same as it was before 1929 when any claim involving immovable property needed to be supported by a registered document. Thus, the 2001 Amendment allows only registered documents to be acknowledged for application of Section 53A of the Act. With this, if the deeds or documents are not registered, then a buyer or transferee could not preserve possession of the immovable property against a seller or a transferor. From this, we can witness a significant change between before 2001 and after 2001. Before the amendment, a Court might have admitted even an unregistered and unstamped agreement as evidence to execute a sale. However, the legal scenario changed when reading the changed Section 53A of the Act along with the amended Sections 17 and 49 of the Registration Act. However, the amendment is not retrospective. On the other hand, only contracts that have been partially executed are subject to the doctrine of part performance.

A registered sale contract also indicates that the entire transaction has been carried out. Contrarily, a written contract to sell property does not necessarily suggest that the parties have reached a deal. As a result, the transferee may claim part performance through the use of documents, such as a registered property transfer agreement. The application of Section 53A of the Act was significantly narrowed by the amendment. Despite this, the clause will still apply to other legal violations in addition to improper registration.

Applicability of doctrine of part performance under Section 53A

The vision of the doctrine of part performance under Section 53A is to protect the transferee in circumstances where the transferor may act improperly and try to take possession of the property from the transferee. The fair ideals of equity and morality serve as a theoretical foundation for the doctrine of part performance. 

However, the privilege granted to the transferee is limited in scope according to Indian law. In Probodh Kumar Das v. The Dantamara Tea Co. Ltd. (1939), the majority of judges concluded that the transferee’s interest might be limited to preserving his or her possession of the property under Section 53A of the Act. The doctrine of part performance can be applied only for the purpose of protecting the interests of the transferee, as observed in the case of Yenugu Achayya v. Eranki Venkata Subba Rao (1953). It basically says that a person may only object to eviction under Section 53A of the Act.

The Supreme Court said unequivocally, in Technicians Studio Private Ltd. v. Lila Ghosh and Anr. (1977), that Section 53A does not grant a proactive title to the transferee at all but rather simply acts as a deterrent to a claimant alleging possession of the property. A transferee can be either a complainant or a respondent while claiming Section 53A obligations, despite the fact that there is still substantial disagreement concerning whether the transferee must be a respondent in the Section 53A suit.

Conditions that need to be fulfilled 

The transferee would be able to enforce his rights under the provision of Section 53A if, prima facie, all the necessary conditions required by the Section were present, as underlined in Balaraja and Anr. v. Syed Masood Rowther and Anr. (1998). Let’s look into those conditions that must be fulfilled in order to make the doctrine of part performance applicable to the legal action.

• The defendant can rely on the doctrine only when the parties to the contract fulfil all the essentials of a valid contract and make it legally valid. And Section 53A is applicable to those contracts or agreements which are void ab initio.
• Proper registration of the contract must be established.
• Oral agreements or contracts do not fall under the applicability of Section 53A.
• The Section provides protection to a subsequent genuine transferee for consideration without notice of the original contract.
• While performing the act of the part performance of the contract, the transferee must have taken possession of the immovable property.
• The transferee must be prepared and willing to fulfil his promise as per the contract.
• The provision is applied to all such contracts where the transfer of property is made for consideration as agreed by both parties, not just for a transfer.

Exception

The doctrine stipulated under Section 53A does not apply to or have any impact on the rights of a subsequent transferee for consideration who is unaware of or has no knowledge about the terms of the contract or its part performance. In other words, the doctrine of part performance does not apply to those cases where the transferee who made a contract for the transfer of immovable property for consideration has no knowledge, neither actual nor constructive notice, of the contract or its part performance.

Any claim the transferee would have against the transferor under the provisions of Section 53A of the Act would be useless if the recipient of the transfer is a genuine transferee for consideration who was unaware of the transaction.

In the case of Hemraj v. Rustomji (1952), the Supreme Court ruled that the Proviso to Section 53A protects and preserves the right of a bonafide transferee for consideration. This means that any rights the transferee under the unregistered document may have on the basis of the transferor’s partial performance of the contract would be useless against a bona fide transferee for value who had no knowledge of the prior transaction. The party claiming the benefit of part performance is required to demonstrate that the subsequent transferee received notice.

The right under Section 53A is not negated, according to the Supreme Court, even if the lawsuit to enforce the terms of the sale contract has expired or the claim that the title was acquired by adverse possession was rejected because the possession was unlawful.

Employing Section 53A only as a defensive shield

The transferee typically invokes Section 53A of the Act as a defence and a shield to safeguard and protect their possession of the property. The judgement in Delhi Motor Co. and Ors. v. U.A. Basrurkar and Ors. (1968) says that it can only be used as a defence by the transferee; he or she neither can use the Section to their advantage and claim possession nor does it grant the transferee any rights that they can seek against the transferor. The transferee is not permitted to assert a claim on his own behalf, indicating that he is not permitted to request a title on the grounds that all the ingredients of Section 53A were met. 

A significant ruling on the nature of transferee rights under Section 53-A was made in the case of Probodh Kumar Das v. The Dantmara Tea Co. Ltd. (1939). According to the Court, a transferee in possession under an unregistered contract of sale did not receive any rights of action as a result of the legislative amendment caused by the passage of Section 53A. Their Hon’ble Court concurred with Mr. Justice Mitter’s assertion made in the High Court that the defendant is the only person who has the right to preserve his possession under Section 53A. This case had a significant impact on the interpretation of Section 53A, which only served to further its concretisation. With this,  the Privy Council said, the concept used in India was not active equity.

As a result, Section 53A of the Act restricts the transferor’s ability to enforce any rights other than those expressly granted in the contract, whereas this is not the case under English law. The right is only admissible as a defence to secure possession of the property against the transferor. The protection is available to the transferee as a plaintiff and defendant as long as he uses it as a shield, not a sword.

Above all, according to the ruling made by the Kerala High Court in the case of Jacobs Private Limited v. Thomas Jacob (1994), the doctrine of part performance must be employed as a shield rather than a weapon. Therefore, it was generally established that Section 53A only allows for “defence or protection.”

Landmark judgements 

Delhi Motor Co. v. U.A. Basrurkar (1968)

As far as it attempts to provide an authoritative and comprehensible explanation of the doctrine of part performance in Indian law, Delhi Motor Co. and Ors. v. U.A. Basrurkar and Ors. (1968) is a landmark judgement of the Supreme Court of India from recent years. 

Facts of the case

In this case, the first appellant was a partnership firm named “Delhi Motor Company,” and another four appellants were partners in the said firm. On the other hand, the primary respondent is a private limited company named “New Garage Ltd.”, and one of the respondents, i.e., U.A. Basrurkar, served as the managing director of the said company. Besides this, the other respondents to the suit served as members of the board of directors. Based on the contentions made by the appellants, three unregistered documents that were presented before the Court indicated that there had been a sublease agreement and a real sublease executed in accordance with it. K.S. Bhatnagar, the appellant, and U.A. Basrurkar, who served as the managing director of New Garage Ltd., engaged in a leasing agreement by representing Delhi Motors Company and New Garage Ltd., respectively. On February 22, 1950, they reached an agreement. At that time, the managing director had no authority to act on behalf of the company; hence, the board of directors adopted a resolution on March 22, 1950, allowing him to represent the company while entering into any transaction. Then after, the firm, ultimately, came into ownership of two parts, out of three that were actually leased, from which the business started operating on April 1, 1950. Additionally, it was argued that when Messrs. Kanwar Brothers Ltd. vacated the other part of the premises, which was also covered by the sublease, the respondents failed to give possession of it to the appellants. Instead, they started to prevent the appellants from using the two pieces that were handed to them, and eventually, it led to a situation where they were totally taken away. In this case, the main request was the delivery of possession for each of the three parts covered by the sublease. 

Issues of the case

The issue of the case is whether a fake, unregistered sublease deed of the disputed property that the respondents to the present case allegedly signed in favour of the appellants and allegedly gave possession of the property is acceptable to support their claims and seek relief under Section 53A of the Act. 

Observation

Here, it is important to note that the arguments of the appellants are based on the provisions, namely Section 53A of the Transfer of Property Act, 1882, and Section 27A of the Specific Relief Act, 1877, and the interpretation of the law by the Supreme Court, which rejected the arguments made by the appellants and denied the remedy requested under these sections. The Supreme Court appears to have outlined the general idea behind Section 53A in the following manner: 

“The firm argued that even though this agreement to lease had not been registered, the firm could still claim possession under it in light of the provisions of Section 53 A of the Transfer of Property Act since this Company would be prohibited from executing any rights in respect of that property, which included a portion of the balcony and the Show-Room. This argument, in our opinion, is based on an improper interpretation of Section 53 A, which does not grant the lessee any rights to possession or any other rights based on an unregistered lease agreement, but only serves to prevent the lessor from enforcing rights over the property of which the lessee had already taken possession. Section 53A only allows lessees to use it as a defence; it does not grant them any rights that they can use to sue the lessor.”

Judgement

The judgement in the present case was in favour of the plaintiffs (now appellants, i.e., Delhi Motor Company).

On appeal, the High Court of Punjab decided that the appellants, the initial plaintiffs, were not entitled to a judgement because the three documents, which were presented before the Court, were unregistered and hence did not meet the requirements of Section 2(I)(7) of the Indian Registration Act, 1908. 

Through a Special Leave Petition, the Delhi Motors Company filed an appeal with the Supreme Court of India. The appellants made the claim that they could also be entitled to remedy under Section 27A of the Specific Relief Act, 1877, or Section 53A of the Transfer of Property Act, 1882. The Supreme Court upholds the judgement of the High Court of Punjab on the grounds of non-consideration and the non-enforceability of unregistered documents.

Srimant Shamrao Suryavanshi and Anr. v. Prahlad Bhairoba Suryavanshi (D) by LRs. and Ors. (2002)

The doctrine of part performance was correctly applied by the Hon’ble Supreme Court of India in the case of Shrimant Shamrao Suryavanshi and Anr. v. Pralhad Bhairoba Suryavanshi (D) by LRs. and Ors. (2002).

Facts of the case

In the current case, the respondents signed a sale agreement for agricultural land in favour of the appellant. According to the agreement, the appellants received possession of the property. The appellant filed a suit after learning that the respondent was in sale negotiations with another respondent following the completion of the agreement. The respondent transferred the property through a registered sale deed despite the fact that the appellant had applied for an injunction and received a favourable injunction decision. The transferee failed to file a suit for particular relief within the limitation period.

Issues of the case

Do the provisions of Section 53A of the Transfer of Property Act allow the transferee to retain possession of the property even after the limitation period has elapsed on the suit for the specific performance of a contract to sell?

Observation

The transferee was able to demonstrate that he was prepared to carry out his obligation under the contract in this instance, which satisfies the condition of carrying out some action in support of a contract, whether in taking possession of the property or continuing to do so. As it was apparent that the appellants were willing to fulfil their obligations under the contract, the court in this instance accepted the appeal.

Judgement

Although the limitation period had passed, the Court held the transferee could still take possession of the property in accordance with a contract of sale, and the transferee could also defend his rights in the event the transferor was the plaintiff. However, the court further stated that this could only be possible if the transferee can establish that he has taken some action to further the agreement or contract or that he is ready to carry out his part of the contractual duty. This was so because it was not explicitly stated that the plea of partial performance could not be used after the deadline for bringing a suit for specific performance had passed.

Here, the Court also observed that the appellant was able to demonstrate his willingness to fulfil his obligation under the contract, which is a crucial requirement. All other requirements, in addition to this one, were also demonstrated. As a result, the court granted the appellant a right to defend under the doctrine of part performance as embodied under Section 53A of the Act.

Santram Dewangan v. Shivprasad (2016)

The case of Santram Dewangan v. Shivprasad (2016) is another significant one that addressed a few issues in relation to the application of Section 53A of the Act.

Facts of the case

The plaintiff, Shivprasad, entered into a sale agreement with the defendant, Santram Dewangan, which was signed on July 16, 1997, and the defendant received possession after paying the advance payment of Rs.12,000/-.

The plaintiff initiated a proceeding to recover possession, claiming, among other things, that although he is the owner of the property in dispute, he gave the defendant possession of it in accordance with an agreement to sell. However, the defendant failed to take any action to register the sale deed within the allotted time period, and as a result, the defendant’s possession of the property has since become void and his capacity has been negatively affected.

In 2011, the trial court dismissed the suit filed by the plaintiff by its judgement and decree on the grounds that the plaintiff had already received the full amount of the purchase price and that the defendant already owned the property. Also, since the deed is not executed, the Court ordered the plaintiff to register the sale deed in favour of the defendant. However, a second appeal has been filed against the ruling of the first appellate court before the High Court, which set aside the verdict and decree of the trial court in favour of the appellant, Shivprasad.

The respondent, Santram Dewangan, approached the Supreme Court of India by appeal and argued that he has been in possession in accordance with the agreement to sell for more than 12 years and has, therefore, confirmed his title through adverse possession. Besides this, the plaintiff himself gave possession of the property to the defendant in accordance with the agreement to sell, which is considered part of the performance of the agreement and is safeguarded under Section 53A of the Act. He further argued that the decision rendered in favour of the appellant is unjust and must be decided in this appeal.

Issues of the case

The main issue of the case is whether the defendant has the right to claim adverse possession of the property when he lost the rights under the agreement to sell by the dismissal of the case. 

Observation

In the case of Mohan Lal (Deceased), through his LRs. Kachru and Ors. v. Mirza Abdul Gaffar and Anr. (1995), the Supreme Court’s learned judge ruled that the party in possession due to the agreement to sell does not have the right to claim adverse possession and ruled as follows:

“It was acknowledged that the specific performance case had been rejected and came to a conclusion. The next issue is whether he has a right to do so under the agreement in accordance with Section 53A. It would be contradictory and incompatible with his right to continue being in possession under the agreement if he lost his right under it by having the case dismissed. No title or interest in the property is created by the agreement. His willingness to carry out his obligation under the contract does not arise because the agreement resulted in the dismissal of the lawsuit.”

Judgement

As a result of the aforementioned legal position, the defendant, who obtained possession of the suit land through a purchase agreement, cannot assert adverse possession. As a result, there is no illegality in the contested judgement and decree, and no such significant legal issue is raised in this second appeal. Based on the discussion above, it is determined that the second appeal lacks substance and is rejected as a result. However, the defendant is free to take legal action to collect the advance payment made to the plaintiff.

Thus, the ruling of the trial court was upheld, and the orders issued by the first appellate court and the High Court were overturned. Therefore, the appeal was granted by the Supreme Court of India.

Union of India and Anr. v. M/s K.C.Sharma and Co. (2020)

The case of Union of India and Anr. v. M/s K.C.Sharma and Co. (2020) is a landmark judgement addressing the issue of whether the bona fide transferee can be protected under Section 53A of the Act, even if he has no registered documents to support his claims. The Supreme Court rightly gave its decision by saying that the registered deeds are not required to receive the safeguards under Section 53A, and when the transferee has possession and has done some acts in furtherance of the contract, he will be recognised as the owner or lessee, as the case may be.

Facts of the case

The government started procedures in accordance with the Land Acquisition Act, 1894, to obtain the property measuring 36 bighas and 11 biswas that was located in Khasra Luhar Heri, Delhi. The government also ensured that those acquisitions of property are used for public purposes as per Section 6 of the Land Acquisition Act, 1894, by way of issuing public notice.

The respondent argued in the case that they were entitled to compensation since they were in possession of the land when it was acquired by the government and that it had been leased to them for the removal of “Shora” so that Goan Saba might cultivate it. The said proceedings were in reference to Sections 30 and 31 of the Land Acquisition Act of 1894. After hearing the case, the Civil Court delivered a judgement and decree in favour of the respondents in 1989, stating that the respondents were entitled to compensation in the amount of 87% and that the remaining 12% must be given to the Panchayat.

A few villagers, who are dissatisfied with the above judgement, filed a writ petition in the High Court, about three years after the delivery of the verdict. The petitioners contended that the respondents were not the lessees of the property in dispute as they claimed to be and made a compensation claim in collusion with the former panchayat pradhan of Goan Sabha.

By order, the High Court gave the Additional District Magistrate permission to take part in the proceedings under Section 18 of the Land Acquisition Act, 1894, and present any relevant evidence or facts to support their position before the Court. Additionally, the legal heir of the actual lessee was given the opportunity to defend their claims regarding the actual lessee and the value of the mentioned property.

Thus, by following the aforementioned procedure in the writ petition, Goan Sabha submitted its application as per Order 1 Rule 10 of the Civil Procedure Code, 1908, and it was determined that the panchayat was only permitted to request an increase in compensation of up to 13% of the share.

As a response to the High Court order regarding the intervention of the Additional District Magistrate, in 2005, the appellant, i.e., the Union of India, again approached the High Court of Delhi, which later transferred to the court of the Additional District Judge due to pecuniary jurisdiction, claiming that the decree and judgement of the Civil Court in 1989 were obtained by fraud. The Additional District Judge held in favour of the appellant. However, the respondents went for an appeal to the Delhi High Court, which decided, by reversing the decision of the trial court, that the claims of fraud were not proven due to the lack of sufficient evidence.

Furthermore, the matter went to the Supreme Court of India. 

Issues of the case

• Does a party in possession of the property have recourse under Section 53A of the Transfer of the Property Act even if a lease agreement hasn’t been registered in his or her favour?
• Was the proper procedure followed while allocating the land lessee?

Arguments

In the Supreme Court of India, the appellants argued that the compensation granted by the Civil Court was obtained due to fraud because there was no lease agreement or contract. They further contended that, because of the absence of lease documents, it could not be considered a lease and, hence, the granting of compensation is not valid.

On the other hand, respondents argued that the presented evidence clearly indicates the intentions of the Goan Sabha and the subsequent approval of the Deputy Director Panchayat. The learned Senior Counsel further asserted that the respondents are authorised to take such possession of the property under Section 53A of the Transfer of Property Act, 1882, relying on the doctrine of part performance, although no lease agreement was executed or registered.

Judgement

The 1989 compensation judgement of the Trial Court was upheld, and the said appeal was dismissed.

As per Section 53A of the Act, the respondents were given possession of the land through a lease; therefore, whether or not a lease document existed is immaterial because an agreement existed between the parties and their intentions were evident. The board of directors also gave its approval to the leasing of the property.

Because of this, the Court ruled that parties whose actions were based on a genuine sale of contract but lacked a registered document in their favour would still be able to keep their right to possession by virtue of Section 53A of the Act.

Therefore, under Section 53A of the Transfer of Property Act, 1882, the transferee has the right to protect his possession from the transferor, whether or not there is a registered or signed instrument.

Joginder Tuli v. State NCT of Delhi and Ors. (2022)

The case of Joginder Tuli v. State NCT of Delhi and Ors (2022) is an important judgement that addressed the issue of whether the transferee can receive benefits under Section 53A of the Act, even if he has no registered documents to support his claims. 

Facts of the case

In 2003, the petitioner, Joginder Tuli, entered into a Memorandum of Understanding (MoU) with Ravinder Kumar Chugh, who has since passed away, to purchase his property, where a chemist shop named “M/s R K Pharma” is situated, for a consideration of Rs. 7,20,000/-. It was stated in the said MoU that possession of the property in question was given to the petitioner and is unregistered. However, the petitioner claimed that the possession of the property was not handed over to him due to the fact that the family of the deceased person contracted with a builder, M/s Rock Contractors Private Limited, for the purpose of construction on the premises of the stated property. Due to the failure of construction by the builder, the deceased Ravinder Kumar signed an MoU with the petitioner in 2003.

Later, the petitioner spotted a person named Arvinder Singh at the premises of the said property. After that, the police arrived at the scene of the dispute, where the parties were quarrelling with each other over the alleged part of the land. Upon the arrival of the police, they established peace and requested the petitioner to produce relevant title papers for the property. Thereafter, the petitioner gave the police the title paperwork to prove that he had acquired the property from Ravinder Singh Chugh via an MoU. The petitioner stated that he is in possession of the sealed part of the land, which was de-sealed in 2008 by the decision of the Municipal Corporation of Delhi (MCD) and sealed as per the directives of the monitoring committee established by the Hon. Supreme Court. Despite giving the petitioner all the paperwork proving a legitimate title over the disputed property, the police have not acted on the petitioner’s concerns. Rather than taking action against the accused, the police sealed the property that the petitioner was in possession of. 

On the other hand, in 2008, K.S. Bakshi, Managing Director of M/s Rock Contractors Private Limited, began negotiating with the petitioner to purchase the property in question, which was already in his possession in accordance with the MOU. Additionally, the petitioner also claimed that, at the police station, he had been threatened, treated disrespectfully, and spoken to in an abusive manner by the agents of K.S. Bakshi. 

Therefore, the petitioner has requested a vigilance investigation of the police officers in his complaint to the Delhi Police Commissioner. He also sought the permission of the commissioner of police to file an FIR under Sections 294, 504, and 506 of the Indian Penal Code (IPC), 1860, against agents of K.S. Bakshi for their derogatory statements towards the petitioner.

Since the police had not responded to the complaints, the petitioner, Joginder Tuli, approached the Delhi High Court by filing the current writ petition.

Issues of the case

The main issue in the present case is whether the transferee should register the legal documents as mandatory to receive the benefits and protections provided under Section 53A of the Act.

Arguments

The respondents argued that the petitioner, instead of only producing relevant legal documents to the police officer, came to the police station of his own free will and also filed a complaint. Besides this, the respondents also contended that the documents produced by the petitioner were on undated stamp paper. And, that MoU is said to have no witnesses. Also, there is no documentation of any payments made to the deceased person, Ravinder Kumar, in relation to the disputed property.

Ms. Richa Kapoor, a learned Additional Solicitor Council, also stated the above arguments before the court, along with the fact that there is no possession from the MCD, which would confirm that the MCD had given the petitioner possession of the disputed property. She adds that the petitioner has not provided evidence of his possession of the property, such as MCD tax receipts, utility bills, information on the monthly rent payments by the tenant, etc. She further stated that Arvinder Singh, agent of Infinity Buildwell Pvt. Ltd., submitted all necessary legal documents proving the legal title over the property in question.

Additionally, the amount of consideration received is not specified in the MoU. The MoU is ambiguous. The description of the property whose possession was transferred has also not been indicated in the MOU, which does not have a schedule attached.

Judgement

The court held that, in the absence of any paperwork or other tangible evidence demonstrating that the petitioner was in possession, the petitioner is unable to rely on Section 53A of the Transfer of Property Act for defence or protection.

It is widely accepted that the document cited must be a registered document in order to confer the protections of Section 53A of the Transfer of Property Act. According to Section 17(e)(1A) read with Section 49 of the Registration Act, no unregistered document may be examined by the court or used as evidence. As a result, the respondent may have received the advantages of Section 53A if and only if the claimed agreement for sale complied with Section 17(e)(1A) of the Registration Act.

The writ petition is rejected since the petitioner has not produced any registered documents that can establish possession of the property in dispute.

Conclusion

Given the preceding analysis, it is essential to point out that the enactment of the Registration and Other Related Laws (Amendment) Act, 2001, proves to be a barrier in the pursuit of Section 53A protection, causing it to lose the significance it once held as a safeguard for the transferee before the amendment. The Amendment Act of 2001 made the registration and proper stamping of contracts requirements. Before the amendment, even documents that were not registered or properly stamped might be used as evidence in legal proceedings, which made it simpler for the transferee to establish and validate the legality of their transfer agreement to qualify for protection under Section 53A and use it as a defence against the transferor’s request for possession. 

In a country like India, where a major section of the population is ignorant of the relevant legislation and the legal formalities that must be met in particular circumstances, it happens frequently that misinformed and uneducated transferees are easily manipulated. The amendment that removed the exemption allowing the use of registration documents for Section 53A purposes could certainly defeat the main objective of the provision given the social and economic position of the Indian population. 

To protect the interests and rights of the transferee, Section 53A is essential. When any kind of transfer deed is made, it is frequently only a consensual agreement or contract that is written on paper or by any other informal method, but not registered. To support that, the transferee takes some action to prevent further encroachment or eviction requests from the transferor. The transferee must be eligible for this defence or protection. Therefore, it would benefit the transferee if the problem was fixed as soon as possible.

References 

• https://www.ijlsi.com/wp-content/uploads/The-Crystallization-of-Section-53-A-of-the-Transfer-of-Property-Act-and-the-Role-of-Laws-of-Equity-in-doing-so.pdf
• https://lawlegum.com/doctrine-of-part-performance-section-53a-tpa/
• https://bnblegal.com/article/the-doctrine-of-part-performance-part-performance-under-transfer-of-property-act/

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