This section summarizes Section 53A of the Transfer of Property Act, which deals with part performance of contracts for the transfer of immovable property. It was first enacted in 1929 based on a case in England, and sets at rest uncertainty around part performance in Indian law. For a claim under Section 53A, there must be a written and signed contract to transfer property, the transferee must take possession or perform other acts in furtherance of the contract, and the transferee must perform or offer to perform their obligations. The section protects transferees who have partially performed contracts, even if the full legal transfer was not completed. It was later amended in 2001 and also led to an amendment of the Specific Relief Act regarding
This section summarizes Section 53A of the Transfer of Property Act, which deals with part performance of contracts for the transfer of immovable property. It was first enacted in 1929 based on a case in England, and sets at rest uncertainty around part performance in Indian law. For a claim under Section 53A, there must be a written and signed contract to transfer property, the transferee must take possession or perform other acts in furtherance of the contract, and the transferee must perform or offer to perform their obligations. The section protects transferees who have partially performed contracts, even if the full legal transfer was not completed. It was later amended in 2001 and also led to an amendment of the Specific Relief Act regarding
This section summarizes Section 53A of the Transfer of Property Act, which deals with part performance of contracts for the transfer of immovable property. It was first enacted in 1929 based on a case in England, and sets at rest uncertainty around part performance in Indian law. For a claim under Section 53A, there must be a written and signed contract to transfer property, the transferee must take possession or perform other acts in furtherance of the contract, and the transferee must perform or offer to perform their obligations. The section protects transferees who have partially performed contracts, even if the full legal transfer was not completed. It was later amended in 2001 and also led to an amendment of the Specific Relief Act regarding
This section summarizes Section 53A of the Transfer of Property Act, which deals with part performance of contracts for the transfer of immovable property. It was first enacted in 1929 based on a case in England, and sets at rest uncertainty around part performance in Indian law. For a claim under Section 53A, there must be a written and signed contract to transfer property, the transferee must take possession or perform other acts in furtherance of the contract, and the transferee must perform or offer to perform their obligations. The section protects transferees who have partially performed contracts, even if the full legal transfer was not completed. It was later amended in 2001 and also led to an amendment of the Specific Relief Act regarding
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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 [...]17 where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore 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.
(1) History of the Section
This section was first enacted in 1929 by the Transfer of Property (Amendment) Act 1929, and imports into India a modified form of the equity of part-performance as developed in England in Maddison v Alderson .18 The enactment of the section sets at rest the considerable uncertainty prevailing in Indian law, as can be seen by three decisions of the Privy Council.19 Recently, para 4 of s 53A has been amended by s 10 of the Registration and Other Related Laws (Amendment) Act 2001 (Act 48 of 2001) whereby the words 'the contract, though required to be registered, has not been registered, or' has been omitted.
The following postulates are sine qua non for basing a claim on s 53A of the TP Act: (i) There must be a contract to transfer for consideration any immovable property. (ii) The contract must be in writing, signed by the transferor, or by someone on his behalf. (iii) The writing must be in such words from which the terms necessary to construe the transfer can be ascertained. Page 336 (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. (vi) The transferee must have performed or be willing to perform his part of the contract.21 In view of the amendment by the Amending Act of 2001, another requirement would be that the document containing contract for transfer of immovable property, if executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act 2001, ie, 24 September 2001, has been registered.
Amendment in the Specific Relief Act
The amending Act also inserted a new section, s 27A, in the Specific Relief Act 1881, providing that a party may sue for the specific performance of a contract in writing to lease immovable property, even though it is not registered, if he has acted in part-performance of the agreement. This amendment was wider than s 53A, for the section enacts an equity which is only available as defence.
If a plaintiff was in possession under a lease
(which would otherwise be inadmissible for want of registration), he could put the lease in evidence, and sue upon it for specific performance treating it as a contract, or to show the character and nature of the possession of the defendant.32 Whether a contract could be specifically enforced was not a relevant factor in granting relief under this
section.33Section 27A is not re-enacted in the Specific Relief Act 1963.
Protection of s 53A would be available to the vendee till his suit for specific performance of contract is disposed off finally.34 The amending Act of 2001 has not made any amendments in the Specific Relief Act 1963.
The mortgagee cannot claim a right higher than what is provided in the ultimate document agreed to be executed, by invoking s 53A. In the case of an agreement to execute a mortgage for a definite period under which possession was handed over to the defendant, if the conditions of s 53A are satisfied, he will be entitled to get all the rights under the mortgage which are agreed to be executed, but cannot claim to continue in possession after the expiry of that period relying on s 53A. The general law of mortgages or the rights and liabilities of the mortgagor and mortgagee are not modified by s 53A.57
