SHIELD AGAINST INJUSTICE: SECTION 53A of Transfer of Property Rights 1882

Imagine you have a friend Neha and your friend Neha offers you her apartment for a price lower than the market rate and, as her friend, you agree to purchase it because she is soon moving overseas, you proceed by making a partial payment and start arranging to move into the apartment based on her promise. However, later you discover that Neha, driven by greed, sold the apartment to a third party who offered her the market price. Since you have only made a partial payment and the property is not yet registered in your name, you may wonder how to protect your rights.

In such a situation, Section 53A of the Transfer of Property Act can come to your rescue. This provision enforces the Doctrine of Part-Performance, which protects a buyer who has acted upon the promise of the seller, even if the formalities of registration are not complete.

This article delves into the concept, its legal proof requirement, judicial interpretation and relevance. 

INTRODUCTION TO THE DOCTRINE: 

Legal pronouncement: 

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 or, 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 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 or of the part performance thereof.

History of the doctrine : 

 Before sec 53 A doctrine of part performance was introduced in the transfer of property act , Indian law didn’t recognise the doctrine of part performance.

  • Initially, Indian courts followed the Statute of Frauds, enacted in 1677, which mandated that all agreements related to property matters be in written form, as stated in Section 4 of the Act. While the intention behind the Act was to reduce fraud, its strict application led to serious problems for transferees, particularly those who acted in good faith but did not have a written agreement, thereby causing more hardships than solutions.

In the case of Kurr i veerareddi v. Kurr i Bapireddi (1906) , Madras high court said that the English principle of part performance does not apply to Indian law . 

  • However, in a Privy council case (1914) , Md. Musa v. Aghore Kumar Ganguli , the privy council allowed the use of the English Principle of Doctrine of Part performance , by deciding that the doctrine could apply in India if the doctrine aligns with justice , equity, and good conscience( fairness) . 

Hence , Section 53A was added in 1929 to the Transfer of property Act through an amendment. 

Doctrine of part performance: 

  • The doctrine says that if a person has taken possession of the property based on the contract of sale and has partly performed their obligations, such as making arrangements, moving in, setting up the TV connection, etc., or is willing to perform their part, then the buyer cannot be deprived of their rights to the property on the ground that the sale was unregistered.
  • Sometimes, a buyer may not be aware of the legal implications or may lack an understanding of the doctrine of part performance, and therefore may not know how to respond when they are evicted from their rights to the property. In such cases, the doctrine protects the transferee’s rights, even if the sale is unregistered.
  • The main aim of the doctrine is to prevent fraud and misconduct on the part of the transferor, who may try to take advantage of the transferee’s lack of knowledge or exploit the situation where the sale is unregistered.
  • However, it should be noted that the doctrine of part performance only protects the transferee’s possession rights, meaning it does not confer title to the property. The doctrine provides passive equity, not active equity. In simpler terms, the doctrine of part performance acts as a defense, not as a sword or shield.
  • To simplify, Section 53A only protects the transferee’s possession and does not make the transferee the rightful owner unless the ownership is transferred through a registered deed.
  • The doctrine has its foundations in an equitable maxim “ he who seeks equity must do equity” 

Illustration: A agrees to sell his house to B for ₹10 lakh. B pays ₹5 lakh as an advance and takes possession of the property, planning to move in. However, B later finds out that A has sold the property to C for ₹12 lakh without informing him.

In this situation, the doctrine of part performance and Section 53A come into play. B cannot be evicted from the property just because the sale was unregistered and only a part payment was made. Since B has taken possession and acted on the agreement, his right to stay in the property is protected, even though the sale was not formally completed.

However, it’s important to note that Section 53A doesn’t give B ownership of the property. A remains the rightful owner, and the protection only applies to B’s possession, not to ownership

In the above, we discussed the transferee’s part performance in order to gain the benefits under Section 53A. To learn more about these benefits, let’s first understand the requirements of the section, as follows:

REQUISITES OF SECTION 53A: 

  • A Written contract to transfer : 

There must be a written contract for the transfer of an immovable property, and the contract must be duly executed with all the requirements prescribed under the Indian Contract Act 1872. For example, the parties to the contract must be competent, i.e., they should be majors and of sound mind, among other criteria.

Merely having the contract in writing is not sufficient; the contract for the transfer of immovable property must be properly executed. This means the contract must be signed by the transferor or any authorized person on their behalf and by the transferee. Additionally, there should be a reasonable time limit within which the transferee must provide the agreed consideration to gain ownership.

Illustration: A agrees to sell his land to B for ₹1 crore. B pays ₹40 lakh as part of the consideration to take possession of the land and promises to pay the remaining ₹60 lakh later. However, even after one year and multiple attempts by A to recover the balance amount, B fails to pay and continues to provide excuses.

In this scenario, A, the transferor, becomes the plaintiff, and B, the transferee, becomes the defendant. A is within his rights to sell the property to a third party without informing B, as a reasonable time has already passed for B to fulfill his obligation. This is a key requirement under Section 53A. Since B failed to pay the remaining amount, the doctrine of part performance will not protect him. This is because the doctrine is based on principles of equity and good conscience, and it would be unfair to A if B continued to retain possession without fulfilling his part of the agreement.

Hence the doctrine doesn’t allow the transferee to exploit the doctrine the wrong way .

When the sale deed is incomplete: 

An incomplete contract can still be considered to provide protection under section 53A. An oral agreement however will not be sufficient to invoke the protection under the section 

In Banerji v. Kuchwar Lime & Stone Co., the company leased a quarry and entered into an agreement to sell the rights to someone else. However, the company failed to complete the sale by properly executing a sale deed.

Later, the lease was forfeited by the Secretary of State. The company argued that the agreement to sell the lease was sufficient under Section 53A for the sale to be considered complete.

The Privy Council disagreed, concluding that Section 53A only protects the possession rights of the transferee against the transferor. It does not grant the transferee full ownership title. Since the company’s sale was not fully completed, the argument failed, and the case was dismissed.

  • Possession by the Transferee:  

To fulfill the obligation of part performance under the Act, the transferee must either acquire full or partial possession of the property or, if already in possession, must continue performing their part of the contract while retaining possession. For example, this could include actions such as constructing new structures, setting up a cable connection, etc.

However, if the possession is threatened, only an injunction suit can be filed by the person claiming the benefit under the section.

  • Willingness to Perform:


The principle of equity is based on the maxim, “He who seeks equity must do equity.” Therefore, to claim the benefits under Section 53A, the transferee must perform their part of the contract. This includes actions such as paying bills, setting up electricity connections, or other agreed-upon obligations. Alternatively, they must demonstrate a willingness to fulfill these obligations.

If the transferee refuses to meet the requirements or fails to perform their part of the contract, they will not be entitled to protection under Section 53A. Additionally, possession must have been obtained in accordance with the terms of the contract, i.e., through lawful means. Thus, the willingness to perform must be absolute and unconditional.

Exception: The doctrine under Section 53A does not affect a subsequent buyer who is unaware of or has no knowledge of the terms of the contract or the part performance.

In simple terms, if a transferee buys a property without knowing that someone else is already in possession, the subsequent buyer’s rights take precedence.

In hemraj v. Rustomji 1952 , The rights of a third party who buys the property in good faith are protected, as they had no knowledge of the prior unregistered agreement between the earlier transferor and transferee. Although the contract between the earlier parties was unregistered, Section 53A provides protection to the transferee who has taken possession and performed part of the contract. However, since the sale deed is still unregistered, it cannot be used for public records, and the third party (the new buyer) who purchases the property in good faith, without knowledge of the prior agreement, will not be bound by the unregistered contract.

Conclusion: Section 53A of the Transfer of Property Act, 1882, protects the rights of a transferee who has taken possession and partly performed the obligations related to an immovable property as per the contract, even if the contract is not fully registered. The aim is to prevent the transferor from evicting the transferee and to ensure fairness in property transactions.

Especially in a country like India, where many people remain unaware of the legislation that protects their rights, uneducated transferees often become easy targets for fraud. Therefore, to safeguard the rights of transferees, Section 53A is crucial, as it provides protection to those who have taken possession and performed part of the contract, even in the absence of a registered deed.

FAQ: 

Q. Is the doctrine of part performance applicable to every type of contract?
Ans. No, the doctrine of part performance will only be applicable to contracts where the property in question is immovable.

Q. Can a transferee get protection under Section 53A if they have not paid any part of the consideration?
Ans. No, in order to receive the benefits under the section, all the requirements of the act must be completed, and paying consideration is one of the essential requirements.

Q. If a contract is not registered, can the transferee still get protection under Section 53A?
Ans. Yes, as long as the transferee has performed part of the contract and taken possession.

Name : Archita Sharma 

College : Government law college, Mumbai. 

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