TRANSFER OF PROPERTY ACT, 1882

Section 53A - Part performance

SYNOPSIS
1. General
(a) Doctrine of part-performance
(b) Basis of the doctrine of part-performance
(c) What acts amount to part-performance
(d) Payment of rent in advance is not an act of part-
performance
(e) Distinction between entering into and remaining in
possession
(f) Part-performance not inseparable from possession
2. Old law
3. Amendment of the old law by the section
4. Difference between the English law and the rule contained in
this section
5. Whether the section is retrospective?
6. Places where the Act does not apply
7. Object of the section
8. Scope and ambit
9. Nature of right
10. Title
11. Adverse possession and part performance
(a) Principle of presumption forward and presumption
backward
(b) Long time possession does not convert into adverse
possession
12. Applicability of the section
(a) General
(b) Necessary conditions for the application of the section
(c) Application of the section to mortgages
(d) When mortgager agrees to sell mortgaged property
(e) Application of the section to agricultural holdings
(f) Application of the section to leases
(g) No renewal of lease by taking benefit of this section
(h) Application of the section to the void leases
(i) Application of the section to the void leases-Other
agreements
(j) Application of the section in eviction proceedings
(k) Application of the section and effect of the provisions of
A.P.(Telangana Area) Tenancy and Agricultural Lands Act,
1950
(l) Application of section to claim for protection of possession
by agreement holder
(m) Application of section to invalid agreements
(n) Conflict between rival transferees
13. Rule under the section can be availed of only as a defence
(a) General
(b) Defence can be availed not only by defendants but also by
plaintiffs
(c) The equity of part-performance under the section is a
passive equity
(i) General
(ii) Misconceived view
(iii) The proper view
(d) The extent of the defence
(e) In sum
(f) The operation of the section
(g) When part-performance assists a plaintiff?Suits under
Order XXl, Rules 63 and 103
(h) Relief of injunction to plaintiff in a suit for specific
performance
(i) Defendant can claim protection, though his right of specific
performance is barred but it does not confer a right to enforce
specific performance
(j) Suit by transferee in possession against third persons
14. Protection under the section cannot be claimed
15. Person
16. Transferor
17. Contracts to transfer
(a) General
(b) Transfer
(c) Gifts
(d) Contracts to transfer
(e) Effect of a contract which is not binding
(f) Proof of contract to transfer
18. For consideration
19. Any immovable property
20. By writing signed by him or on his behalf
(a) General
(b) The contract must be in writing
(c) A formal agreement is unnecessary
(d) The writing must be signed
21. From which the terms necessary to constitute
the transfer can be ascertained with reasonable certainty
22. In part-performance of the contract
(a) General
(b) Contract infringing a provision of lawPlea of part-
performance cannot be sustained
(c) Acts of part-performance must be in part-performance of
the contract
23. Proof of possession is mandatory
24. Taken possession
25. Property or any part thereof
26. The transferee, being already in possession, continues in
possession in part-performance of the contract
27. Subsequent transferee can retain benefits of transfer
28. And has done some act in furtherance of the contract
29. In furtherance of the contract meaning explained
30. The transferee has performed or is willing to perform his part
of the contract
31. Notwithstanding that the contract, though required to be
registered, has not been registered
32. Or where there is an instrument of transfer
33. The transfer had not been completed in the manner
prescribed therefor by the law for the time being in force
(a) General
(b) Section applies if the contract of transfer is invalid for
want of completion in the prescribed manner
(c) Section does not apply, if the contract of transfer is void
(d) Agreements otherwise invalid
(e) The equity in Walsh v. Lonsdale and this section
34. Persons claiming under
35. Expressions sword and shield
36. Shall be debarred from enforcing, etc
37. Any right in respect of the property
38. Property subject to contract acquired compulsorily rights of
the owner
39. Other than a right expressly provided by the terms of the
contract
40. Proviso
(a) General
(b) Proviso protects only a bona fide transferee for value
(c) Onus rests primarily on person claiming benefit of the
section
(d) What has to be proved? By whom?
41. Transferee guilty of laches
42. Essential facts to be stated in pleadings
43. New plea not allowed to be raised at a late stage
44. Supplementary legislation
(a) General
(b) Section 49, Registration Act
45. Limitation
46. Time when essence of the contract
47. Presumption against time being essence of contract
48. Readiness and willingness to perform
49. Pre-emption
COMMENTS
1. General.--
(a) Doctrine of part-performance.
The doctrine of part-performance by handing over possession is a
recognised doctrine that subscribes to an equitable title statutorily enacted
by Section53A of the Transfer of Property Act. What constitutes a part-
performance would depend on the facts and circumstances available in
each case and particularly upon the intention of the parties. Broadly
speaking, the act of part-performance must be an act done in
performance of the contract as distinct from those acts which are
introductory or ancillary to such performance or merely accommodating
and as such referable to some other arrangement. Well-settled it is that
the act to be in part-performance of a contract must be unequivocally
referable to such contract and conversely must not be referable to any
other contract or any other understanding.
In Hamida v. Humer,
1
it was crisply stated that the doctrine of part
performance is to the effect that equity considers of that as done which
ought to have been done. But before the doctrine could be applied the
intendment of legislature must be complied with, in as much as there
must be a contract totransfer immovable property for consideration. It
must be signed by or on behalf of the transferor, the terms of the same
ought to be ascertained with reasonable certainty from the document
itself and the transferee ought to be put in possession and in case he has
already been put in possession, he must continue in possession and he
must have done some act in furtherance of the contract and also the
transferee must have performed or must be willing to perform his part of
contract.
This principle applies even when properties are taken charge of only; for
the purposes of repairs or improvements and such handing over of
possession for such specific purposes would not, in the very nature of
things, be the possession given in part-performance of the contract. The
position of possession of such type when obtained subsequent to the
agreement and which is not possibly referable to part performance of the
agreement cannot, be regarded as agreement pre-existing, to be treated
to be in part-performance of such an agreement so as to give rise to
equitable entitlement to it.
2
In order to claim the benefit of part
performance, it is essential that the terms of the agreement between the
parties must be reasonably certain or if it is not certain, at least it must be
permissible for the court to make it certain by applying the formula or
machinery provided for in the document.
3

Protection under Section 53A is available as a shield only against the
transferor but is not available against the state acting under Section 5(1),
U.P. Imposition of Ceiling on Land Holdings Act (1) of 1961.
4

Even assuming that tenant is entitled to benefit of Section 53A of Act, his
liability to pay rent does not cease unless the agreement of sale put to an
end to that liability.
5

It would not be proper to place any indefinite embargo on the right of
defendant to exercise his proprietary right with regard to the suit house
and as such he will be at liberty to exercise all his proprietary rights
including regarding alienation.
6

Where the appellants recognised the reversion of his pre-existing rights as
tenant up to the date of compromise, the appellant and respondent both
were bound by relationship of landlord and tenant, therefore, Rent
Controller was entitled to proceed in accordance with law.
7

(b) Basis of the doctrine of part-performance.
The basic requirement of Section 53-A is that the transferee has taken
possession of the property in part-performance of the contract, or if he is
already in possession continues so in part-performance of the contract and
has done some act in the furtherance of the contract.
8
Unregistered deed
of exchange can be relied upon when it was followed by delivery of
possession to protect such possession.
9
Even though there was no
instrument in statutory form, yet, if there had been a contract followed by
an act of part-performance, the result in equity is, in effect to exclude the
operation of the statute. Equity recognises that it would be fraudulent for
a defendant to take advantage of the absence of an instrument in the
form required by statute, if he has stood by and allowed the plaintiff
toalter his position for the worse by carrying out acts in performance of
the contract. Thus, if X orally agrees to let premises to Y, and if Y takes
actual possession of and improves them, it would be fraudulent, or at
least inequitable, for X to refuse to implement his contract on the ground
that a proper instrument in the requisite form was lacking.
10
Therefore,
equity grants a decree of specific performance of the contract against X.
But, in decreeing specific performance, equity does not charge him on the
contract itself, but holds him liable upon the equity arising from the
changed position in which Y finds himself.
11
Y has prejudiced himself by
acting on the assumption that X would carry out the contract, and the
fact, that he has been allowed to do this, gives him an undoubted equity
against X. If Y proves his act of part-performance, the Court will grant a
decree ordering X to execute a formal instrument to include the terms
which have been agreed upon.
Person possessing immovable property on the basis of unregistered sale
deed prior to coming into force of the Transfer of Property Act in
erstwhile Rewa State can get benefit of Section 53A of
the Transfer of Property Act and to that extent it will have retrospective
operation.
12

(c) What acts amount to part-performance.
It is necessary that
(1) an act of part-performance must be an act done in
performance of the contract;
Acts introductory to and previous to the contract, that
is, acts preliminary to the completion of a contract are not acts of part-
performance. And evenacts subsequent to the contract, though done
inpursuance of the contract, are not acts of part-performance, unless
done strictly in performance of the contract.
(2) the acts relied on as part-performance must be unequivocal
and referable to no other contract than that alleged
13
;
In order to give rise to the equitable doctrine of part-performance, it is
necessary that the Court should find the parties unequivocally in a
different position from that, in which, according to their legal rights, they
would be, were there no contract.
Change in the possession of immovable property is an act of part-
performance both of the person who gives,
14
and of the person who takes,
possession.
15
There must be a delivery of possession.
16
But payment of
part or even the whole of the purchase money, is not an act of part-
performance, either because payment of money is an equivocal act,
17
or
because mere payment of money does not change the relative position of
the parties, though it may give rise to a claim to recover it back.
18

But in the under mentioned case appropriation of mortgage money as sale
consideration was held to be an act in the furtherance of sale contract.
19

(3) An act of part-performance must be the act of the party
seeking to avail himself of the equity. Acts of the party sought to
be charged are of no avail.
20

Thus, either party to an agreement for a lease may have done several
things which in actual fact amount to part-performance of the agreement,
but it does not follow that such acts will amount to part-performance, as
defined by law. In Maddison v. Alderson,
21
Lord Selborne pointed out that
no actdone in furtherance of the agreement will satisfy the legal
requirements of part-performance unless it is one which unequivocally and
in its own nature demonstrates that some contract relating to the land has
been made. It must be an act, which is intelligible only on the assumption
that some such contract has been made, and if it is explicable on some
other equally good ground, it does not satisfy the test. If, for instance, X
is found to be in actual possession of land which has hitherto been owned
and occupied by Y, the only reasonable explanation of this change of
possession is that the parties have entered into some contract, either of
sale or usufructuary mortgage or lease, with regard to the land : entry
into possession, therefore, is an actof part-performance, and if Y resists a
suit for specific performance, by relying upon the absence of a formal
statutory instrument, X will be permitted to show by oral evidence what
the actual contract was.
22

(d) Payment of rent in advance is not an act of part-performance.
As already stated, payment of rent in advance is not sufficient. The mere
payment of rent in advance, for instance, by an intending tenant, under
an oral agreement, is not sufficient to found an action for specific
performance, even though the rent was paid on the understanding that
the agreement would be carried out.
23
This is so because
(1) payment of money is an equivocal act and, unlike entry into
possession, does not, per se, clearly demonstrate that the parties
must have entered into a contract relating to land;
24

(2) specific performance in a suit, founded on part-performance, is
decreed, because the relative position of the parties has been
irremediably altered, with the result that the party, who has acted
on an informal contract, acquires an equity against the other, but
there is nothing irremediable or prejudicial in the payment of
money; the payer has no equity except the right to recover his
money; and, upon re-payment, he is in the same position as
before.
25

(e) Distinction between entering into and remaining in possession.
The fact of possession is, ordinarily, associated with the doctrine of part-
performance. Therefore, entry into possession is prima facie sufficient.
There is, however, a distinction between
(1) entering into possession, and
(2) remaining in possession.
While the former is sufficient, the latter is not, there are additional
circumstances. Thus, if a tenant is in possession of lands under
a lease which expires on a certain date, the mere fact that he continues
in possession after that date is not sufficiently unequivocal to found a suit
for specific performance of an informal agreement to grant him a
new lease. The possibility, that the landlord has entered into a new
contract relating to the land is certainly one explanation of the tenants
continuance in possession, but it is not the only explanation. There are
others equally good, as, for example, that he refuses to vacate, or that he
has been allowed to continue for a few days more. But if, in addition to
remaining in possession after the proper date, the tenant begins to pay
rent at a higher rate than under the new lease, then the two facts, of
remaining in possession and of beginning to pay rent at a higher rate, will
together constitute an act ofpart-performance
26
because they are
explicable only on the assumption that the landlord has agreed to grant a
new lease. If the act relied upon by the plaintiff clearly refers to the type
of contract that he seeks to prove, the fact that some ingenious mind
might suggest a different explanation will not avail the defendant.
27

(f) Part-performance not inseparable from possession.
Although possession generally forms an element in an act of part-
performance, yet it is not always so. In order to decide whether
an act does, infact, constitute part-performance or not, the correct test is
to consider whether a stranger after learning of the act in question, would
inevitably come to the conclusion that the defendant had acquired some
interest in the land. So, where the defendant entered into an informal
agreement with the plaintiff to take a lease of a flat part of the contract
being that certain alterations should be made by the plaintiff, and during
the progress of the alterations, the defendant frequently visited the flat
and made suggestions as to the manner in which the work should be
done, and her suggestions were carried out, and when, on the completion
of the work, she repudiated the contract, she was adjudged liable in a suit
for specific performance.
28
The facts, that the plaintiff submitted to
interference by the defendant and adopted her suggestions, were plainly
referable to a contract relating to the premises.
The basis of the doctrine of part-performance is that the plaintiff, having
altered his position on the face of the contract, acquires an equity against
the defendant. Therefore, he can sue on the contract.
2. Old law.--
Before the enactment of the section three equities similar to the equity of part-
performance were administered by the Courts in India, namely
(i) the equity of part-performance, as expounded in Maddison v.
Alderson,
29

(ii) the equity in Walsh v. Lansdale;
30
and
(iii) the fiduciary capacity of the vendor.
3. Amendment of the old law by the section.--
The old law was amended by the present section, which is new, and was inserted
by the Transfer of Property (Amendment) Act, XX of 1929. It imports, in a
restricted form, the English equity of part-performance, as explained in Maddison
v. Alderson,
31
and applied by the Privy Council in Mahomed Musa v. Aghore
Kumar.
32

Transfer of possession of lands under an un-registered agreement of sale by
owner to the transferee are added back to the holding of owner, it has to be
established, whether the owner has proved to the contrary that transaction was
not made to defeat the object of Amending Act, 1972.
33

4. Difference between the English law and the rule contained in this section.--
The important points of difference between the English doctrine of part-
performance and the rule contained in this section are :
(1) The English doctrine applies even to oral contracts, but this section
applies only to contracts in(a) writing, and (b) signed by the transferor,
or on his behalf from which the terms necessary to constitute
the transfer can be ascertained.
(2) Under the English law(a) both the transferor and the transferee can
claim as plaintiff that the contract be specifically performed, and (b) each
can resist a suit by the other claiming rights in violation of the contract;
but, under this section, the transferor or any person claiming under him,
is debarred from enforcing against the transferee and persons claiming
under him, any right in respect of the property of which the transferee
has taken possession, other than a right expressly provided by the terms
of the contract, and the transferee cannot sue for any declaration on the
ground of part-performance.
(3) Under the English law, part-performance of a contract gives rise only
to an equity and not to a legal right; but under this section, the part-
performance gives rise to a statutory right of defence; but this right is
only one, which, but for the lack of some formality, the party would have
had under the written agreement. The section gives the party relying upon
it only such rights which for the lack of some formality they would have
had under the written agreement but it does not give any right which the
informal agreement would not give.
34

5. Whether the section is retrospective?--
The section is not one of the sections specified in Section 63 of the
Amending Act XX of 1929, as being not retrospective, It should, therefore, have
retrospective operation. But there is a conflict of decisions on the point. One view
is that it is notretrospective.
35
The other view is that it is retrospective.
36
In
Bachaspatimayum Thambou v. Nandgopal Singh,
37
after Manipur became part of
India, this Act was made applicable in 1957, while the Registration Act was
made applicable in April, 1950. It was held, that there was nothing in this section
to show that it is not retrospective in its application, It was pointed out that the
Indian Courts are not merely Courts of Law, but also Courts of Equity and the
Courts, cannot shut their eyes to the fact of the extension of this Act at the time
when judgment had to be pronounced in the case, It was said, that, even if the
section was not applicable at the time when the suit was filed, the principle
embodied in the section will be applicable, as pointed out in Shankari v. Milkha
Singh.
38

In Maneklal v. Hormusji,
39
the Supreme Court observed that Section 27-A,
Specific Relief Act, applies to contracts executed after 1st April, 1930, and has no
application in the present case, but there can be no manner of doubt, that the
defence under Section 53A is available to a person who has an agreement
oflease in his favour, though no lease has been executed and registered, The
question whether the section has retrospective effect or not, has to be considered
only in reference to the circumstances which bring the provisions thereof into
effect, that is, to the filing of the suit. And it is the date of the filing of the suit,
not of the making of the contract, that is relevant for the purpose, In this sense,
it has retrospective effect and applies to all suits filed after 1st April, 1930,
although the transaction may be of an earlier date.
40

6. Places where the Act does not apply.--
In Shankari v. Milkha Singh,
41
Beckett, J. observed that unless this section can be
taken as embodying some general rule of equity which would prevail in India,
apart from the provisions of the Act, it can have no force in the Punjab. But in
the Full Bench case of Milkha Singh v. Shankari,
42
it was held, that this section is
based on equitable principles and the principles embodied therein are applicable
to Punjab. The mention of this section in the proviso to Section 49,
Registration Act, cannot deprive the province of Punjab of the benefit of the
proviso, simply because the Transfer of Property Act is not in force in that
province.
43
The Sikkim High Court in Bishnu Kala Karki Dhali v. Bishnu Maya
Darjeeni,
44
has held that the doctrine of part-performance enunciated by this
section is not applicable as a principle of equity and justice.
45

If there is delay in enforcing the contract, benefit of Section 53A of
the Act would not be available.
46

7. Object of the section.--
The doctrine of part-performance embodied in Section 53A is an equitable
doctrine. The object of this section is to prevent a transferor or his successor
from taking any advantage on account of the non-registration of the document,
provided the transferee has performed his part of the contract and in pursuance
thereof has taken possession of some immovable property. This right is
available to the transferee as defence in order to protect his possession.
47
This
section applies even when the specific performance of a contract is barred or the
contract is otherwise unenforceable.
48
The section gives effect to the equity of
part-performance. It has introduced partially the doctrine of part-performance
into the statute of India, By furnishing a statutory defence, it enables a party to
maintain possession, when he could not obtain a registered document, although
he had performed his part of the contract. The object of this provision is to debar
the transferor, or persons claiming under him, from asserting a title in derogation
of the rights of the other contracting party who had taken some action in
performance of the contract. This section aims to give a right to the defendant to
protect his possession as against the transferor, or persons who claim under him,
such as his heirs, assigns and legal representatives.
49

The right conferred by this section is a right available only to the defendant to
protect his possession.
50
This right or benefit can only be claimed if the existence
of the pre-conditions mentioned in the section isestablished.
51
The section is so
framed as to impose a statutory bar on the transferor, but it confers no active
title on the transferee.
52
The provisions of this section are available only as a
defence and cannot be invoked for enforcing rights under an
unregistered lease.
53
The provisions of this section apply to a case where there is
a written agreement.
54

Although Section 53A does not either expressly or by necessary implication
indicate that the rights conferred on the transferee there under can only be
invoked as a defendant and not as a plaintiff, but under the section no title
passes to a transferee. He cannot file a suit for a declaration of his title to
the property to seek to recover possession of the same on the basis of any title
conferred to him.
55

The right under this section is to have the transferor or any person claiming
under him debarred from enforcing against the transferee and person claiming
under him any right in respect of the property of which the transferee has taken
or continued in possession. This right can be enforced by the transferee always
as a shield and not as independent claim either in the capacity of plaintiff or
defendants, that is to say, he cannot ask for title basing his claim on the fact that
he has fulfilled the conditions laid down in the section.
56
But the doctrine of part-
performance might act as an estoppel as between the vendors and the
purchasers.
57

8. Scope and ambit.--
A plain reading of the provision under Section 53A of the Act indicates that in
order to avail the protection thereunder a transferee, apart from satisfying other
conditions (i) must in part performance of the contract take possession of
the property or any part thereof; and (ii) must have done some act in
furtherance of the contract.
58

A specified property was agreed to be sold, for a specified consideration to a
specified person. The terms were agreed upon before the mediators. The mere
contemplation of execution of another document with some more terms would
not invalidate the terms already agreed. If prima facie all ingredients required
under Section 53A are present then the transferee would be entitled to enforce
his rights under Section 53A of the Act.
59

Where essential ingredients of a contract are not fulfilled in an agreement for
sale, the court is not required to consider the plea of Section 53A of the Act.
60

The benefits of Section 53A of the Act would be available to the transferee who
has paid half of the sale consideration regarding property in question and was in
possession thereof.
61

Under the provision of Section 53A of the Act, the protection on part
performance of contract is available only against transferor or any person
claiming under him.
62

Transferee in possession, whether as a plaintiff or defendant can seek protection
of his right under Section 53-A by satisfying all the conditions of Section53A.
63

The doctrine of part performance is based on equity. It is available as protection
only to such a transferee, who has demonstrated equitable foundation for
continuation of his possession.
64

The plea of part performance based on oral contract is not maintainable, as
Section 53A contemplates a contract in writing.
65

The provision under Section 53A seeks to protect possession of defendant even
where the right to obtain specific performance is barred by time.
66

Part performance of contract does not mean that vendee absolved from other
obligations. It requires that vendee should show his readiness and willingness to
perform his obligation. It only protects possession of vendee.
67

The protection provided under Section 53A of the Act to the proposed transferee
is a shield only against the transferor. It disentitles the transferor from disturbing
the possession of the proposed transferee who is put in possession in pursuance
to such an agreement. Such a right to protect possession against the proposed
vendor cannot be pressed in service against a third party.
68

Transferee in possession under agreement to sell, can protect his possession
even if he has not filed suit for specific performance of the contract and hence
disabled himself for acquiring legal title.
69

A person can defend his possession under the provisions of Section 53A of
the Act whose possession is based on agreement to sell and payment of part of
sale consideration.
70

An agreement of sale of property was executed and the purchaser put in
possession of property. The owner filed a suit for possession and the purchaser
pleaded ingredients of Section 53A in WS but failed to specifically claim benefits
of Section 53A. The failure would not be fatal.
71

The provision under Section 53A of the Act protects the possession of the person
who may have acted on a contract of sale but in whose favour no legally valid
sale deed may have been executed or registered.
72

Section 53A presupposes existence of lawful contract between the parties.
73

Continuity of possession of transferee contemplated in the section must be
agreed upon as a term of contract, then alone would possession be attributable
to part performance of contract.
74

Section 53A imposes a statutory bar on the transferor to seek possession of the
immovable property from the transferee in possession. Such a statutory bar
cannot impose on the third party who is not a party to agreement to sell and/or
contract between the transferor and transferee. Therefore, a suit by proposed
transferee against the third party to the contract/agreement to sell, for
enforcement of the bar created by Section 53A shall not be maintainable against
the third party to the contract/agreement to sell.
75

9. Nature of right.--
The right guaranteed under Section 53A is statutory right and cannot be denied
on the ground of laches.
76

The provision under Section 53 A of the Act creates a statutory right and cannot
be whistled down on ground of latches or implied limitation. Where a suit for
specific performance of contract becomes time barred, right of the transferee of
immovable property under Section 53A is not lost.
77

10. Title.--
The equity on which this section and the doctrine of part-performance rests
confers no title. The section cannot be utilised for perfecting the title.
78
Until the
person in possession perfects his title, either by obtaining it by completing
the transfer, in the manner prescribed therefor by the law for the time being in
force, or by a suit for specific performance he cannot maintain a suit on
title.
79
Nevertheless the equity confers an interest which is attachable and
saleable, and it is not open to him to say that he has no saleable interest.
80

The right conferred by Section 53A of the Transfer of Property Act is a right
available only to the transferee to protect his possession, and the section is so
framed as to impose a statutory bar on the transferor, but it confers no active
title on the transferee, The interest which a person has in the property by virtue
of Section 53A of the Transfer of Property Act, does not amount to ownership
of property, and hence no claim on his behalf with respect to
suchproperty would be entertained to which he would become entitled only after
a registered sale-deed has been executed. Part-performance does not convey
title to the transferee.
81
Such statutory protection cannot be availed if
such transfer is not genuine but fraudulent.
82

The section gives a defendant the right to defend his possession, if he holds
under an unregistered deed or contract, though it does not confer title.
83
But this
section, or the doctrine of part-performance, does not support a suit on title.
84

The section does not operate to create a form of transfer of property which is
exempt from registration, it creates no real right. It merely creates rights of
estoppel between the proposed transferee and transferor, which have no
operation against third persons, not claiming under those persons.
85

The opening words of Section 53A make it clear that its provision are applicable
both to an agreement or transfer as well as to a contract of transfer.
86

An act to be in part-performance of the contract under Section 53A must flow
out of the agreement as it were and must be referable clearly to that agreement,
with reference to which alone an act in part-performance can lay the foundation
for the defence under Section 53A.
87

11. Adverse possession and part performance.--
The plea of adverse possession and part performance are mutually destructive.
One cannot be allowed to say that on one side, he admits the title of the plaintiff
for the purpose of Section 53A and at the same time, asserts title in his own
self.
88

(a) Principle of presumption forward and presumption backward.
The adverse possession is bound to commence at a particular point of
time and must continue till it metamorphosis's into title. If it suffers any
breaks before it had ripened into a title, whole of its effect stands
neutralized. If the same person, who pleads adverse possession in respect
of an item ofproperty, enters into an agreement of sale with the owner,
the character of the possession ceases to be adverse. Here the principle of
presumption forward and presumption backward operates.
89

(b) Long time possession does not convert into adverse possession.
Mere possession for a long time does not result to converting permissive
possession into adverse possession.
91

12. Applicability of the section.--
(a) General.
The section introduces in limited form the doctrine of the equity of part-
performance.
91
The section is only meant to bring about a bar against
enforcement of rights by a transferor in respect of property for which the
transferee had already taken possession, but does not give any right to
the transferee to claim possession or to claim any other right on the basis
of an unregistered transfer, The section is only available as a defence to
a transferee and not as conferring a right on the basis of which the
transferee can claim rights against the transferor.
92
Section 53-A may
come into operation only when a suit for possession is filed by the
plaintiffs. Whether the respondent has committed breach of the contract
or he was not prepared to fulfil the contract may be relevant at the time
of the trial of the suit. The petitioners were not successful in proving
prima facie case of possession and therefore the petition for temporary
injunction was rightly dismissed by the lower Courts.
93
The rights and
benefits which the transferee acquires on part-performance of a contract
can only be claimed if the existence of the pre-conditions mentioned in the
section is established. The provisions of this section apply to a case where
there is a written agreement. In the absence of the written agreement the
terms necessary to constitute the transfercannot be ascertained with
reasonable certainty.
94
The section requires that(1) there should be a
contract in writing signed by the transferor or on his behalf from which the
terms necessary to constitute the transfer can be ascertained with
reasonable certainty, and (2) the transferee must, in part-performance of
the contract, have taken possession of the property or any part thereof,
or the transferee being already in possession must have continued in
possession in part-performance of the contract and have done something
in furtherance of the contract.
95
There must be a real nexus between the
contract and the acts done in pursuance of the contract, or in furtherance
of the contract and must be unequivocally referable to the
contract.
96
Where, in fact, there has been no contract
to transfer immovable property, the question of part-performance of the
contract does no arise.
97
The section applies in cases where there is an
instrument of transfer but the transfer has not been completed in the
manner prescribed by law. If there is no instrument of transfer, the
section can have no application.
98
Even if the plaintiffs remedy for specific
performance is barred by limitation, he has still the right to invoke the
protection of this section.
99
In construing this section, Courts should try to
give effect to the equitable object underlying it, and, therefore, should put
a liberal construction on the words therein.
100

Where the property is sold before its attachment in a decree, it can be
brought to sale subject to the rights of the purchaser.
101

Where a mortgagor, who having executed a usufructuary mortgage,
subsequently takes a fresh loan from the mortgagee and stipulates that
on future of the repayment of the loan within the stipulated period the
mortgagor would sell the mortgaged property to the mortgagee. Such an
agreement in respect of the loan being unregistered the mortgagors right
to redeem would not be extinguished and this section will have no
application.
102

But the doctrine of part-performance cannot be stretched to apply to
cases not falling within the four corners of the section.
103

Unless the defendant pleads that he has performed or was willing to
perform his part of contract, provisions of Section 53-A of the Act would
not be attracted.
104

Doctrine of lis pendens apply to auction sale held by the executing court of
any immovable property to judgment debtor which was subject of
dispute in a pending suit.
105

Where a tenure-holder enters into agreement to sell some of his lands and
transferred possession to proposed vendees, then the lands in question
are includable in his holdings for computation of his ceiling area and
Section 53A of Transfer of Property Act is not attracted.
106

An act of part-performance by taking possession is only protected if
contract is in writing and not otherwise, as the contract in writing is sine
quo non for applicability of provisions of Act.
107

(b) Necessary conditions for the application of the section.
The necessary conditions for the application of the section are
(1) there must be a contract to transfer for consideration any
immovable property;
(2) the contract must be in writing, signed by the transferor, or by
someone on his behalf;
(3) the writing must be in such words from which the terms
necessary to construe the transfer canbe ascertained with
reasonable certainty;
(4) the transferee must, in part-performance of the contract, take
possession, of the property, or of any par thereof, or if the
transferee is already in possession, he must continue in possession
inpart-performance of the contract;
(5) the transferee must have done some act in furtherance of the
contract;
(6) the transferee must have performed, or be willing to perform,
his part of the contract.
Where strict compliance of agreement is not done by the plaintiff and
readiness and willingness on his part was also not and specifically proved,
relief of specific performance cannot be granted.
108

To attract the provision of this section, the transferor must be the owner,
there should be an agreement to transfer by sale to the transferee for
consideration and the possession of the transferee should be in pursuance
of that agreement and the transferee must have done something more in
furtherance of the agreement and he should be ready and willing to
perform his part of the agreement from the date of the agreement.
109

The provisions of Section 53A of the Act are not attracted where there is
neither a concluded agreement between parties nor the petitioner had
been willing to perform his part of contract.
110

To claim benefit of Section 53A of the Act the party must show not only
readiness and willingness to pay consideration agreed upon at later stage
but should have paid consideration at time of agreement and be ready
and willing to pay current market price.
111

If the aforesaid conditions are fulfilled, the transferor, or any person
claiming under him shall be debarred from enforcing against the
transferee, and person claiming under him, any right in respect of
that property.
112
The requirements of the section should be satisfied
before relief can be granted on the basis of this section.
113
A transferee
cannot claim the benefit of this section, if he was inducted into
possession, when his transferor had no right in law to induct him in
possession.
114

The section applies only when the transferee seeks to debar the transferor
from enforcing his right against the transferee in the property which he
has transferred for consideration and has parted with possession but has
not executed a registered document.
115

The section does not say that the transferee should be in possession on
the date when the transferor seeks to enforce his right against
the property. The essential condition for invoking the aid of the section is
that he should have taken possession of the property in part-
performance of the contract and have done some act in furtherance of the
contract. Where the transferee is proved to have been put in possession,
the fact that subsequently he lost possession cannot deprive him of his
rights which he is entitled to under the section, Again, if the conditions
laid down in the section are complied with, it enables the transferee to
defend his possession if the transferor seeks to enforce his rights against
the property. This statutory right he can avail himself both as a plaintiff
and as defendant, provided he is using his right as a shield and notas a
sword. He cannot seek to enforce his title, but he can resist the attack
made by the transferor.
116

It is not necessary that the deed of transfer should have been obtained
by a party before he can invoke the aid of this section. The conditions laid
down in the section are fulfilled, even though a contract to transfer alone
for consideration is obtained. The moment possession is taken or
continued under the contract of transfer, the original relationship ceases
to exist and the promisor cannot ignore the contract, and if the promisee
has performed, or is willing to perform, his part of the contract, the
transferor is debarred from enforcing against the transferee any right on
foot of the old relationship in respect of the property. Thus, after a lessee
has continued in possession under the contract of sale, the original
relationship of landlord and tenant ceases to exist, and the landlord
cannot take advantage of any statutory provision for evicting the
defendant.
117

It is open to a purchaser to assign his rights under an agreement of sale.
In such a case, the assignee claims under the assignor. The assignee can
rely upon his possession and raise the plea of part-performance only, if his
possession is referable either to an agreement of sale, or to an
assignment of rights under that agreement of sale.
118

(c) Application of the section to mortgages.
The section is applicable to all sorts of contracts to transfer any
immovable property for consideration. It, therefore extends not only to
sales but also to mortgages and exchanges. Where all the ingredients of
the section are present the defendant is entitled to invoke the benefit of
the section.
119
In the above noted case the appellant instituted a suit for
redemption of a mortgage executed on 14th December, 1927. By the
mortgage-deed a house was conditionally sold to the respondent on
condition that if the consideration was repaid within six years,
the property would be reconveyed to the vendor. After the expiry of six
years on 16th December, 1933, the respondent served a notice on
appellant saying that, as the condition of repurchase had been broken, he
had become the full owner of the property. On 1st February, 1935, the
respondent paid a further sum, in lieu whereof the vendor relinquished all
rights in the property in favour of the respondent, but the document was
not registered, although the respondent continued all along in possession.
It was held that by the document of 1st February, 1935, the appellant
must be deemed to have given up whatever rights he had, When he
unconditionally surrendered to the other party, all his outstanding rights in
the property, he could not thereafter be heard to say that he parted only
with one such right and not the other of which he was not then aware :
and that, as all the ingredients of this section were satisfied, the
respondent mortgagee was entitled to invoke the benefit of this section for
resisting plaintiffs suit for redemption.
It does not apply to the case of a mortgagee in possession.
120

(d) When mortgagor agrees to sell mortgaged property.
When mortgagor/vendee agrees to sell mortgaged property to the
mortgagee/putative vendee in possession, the mortgagees status is ??
merged in his rights as putative vendee under Section 53A of
the Act against the transferor, provided that the preconditions of
Section 53A are fulfilled.
121

(e) Application of the section to agricultural holdings.
The general provisions of the Transfer of Property Act such as Section
53-A of the said Act can be extended to agricultural properties or
agricultural holdings.
122
The provision in Section 53-A of the Act which is
meant to protect a defendant from eviction when he has entered into
possession in part-performance of an unregistered deed
of transfer should not be available to the transferee of an occupancy
holding who has obtained a deed of transferbut not got it registered, as
required by Section 26-C of the Bengal Tenancy Act.
123

But the provision of this section cannot be invoked against proceeding
under Section 32-R of Bombay Tenancy Act.
124

A person in possession of immovable property in Agency tract by virtue
of a transfer made in contravention of Section 3(1)(a) of the A.P.
Scheduled Areas Land Transfer Regulation, 1959, as amended by
Regulations, 1963 and 1970 would not be entitled to claim the benefit of
Section 53-A of this Actwhether it conforms to the relevant provisions of
this Act, Registration Act, or the Hyderabad Tenancy and Agricultural
Lands Act.
125

(f) Application of the section to leases.
The equity has been applied to agreements of lease, which do not create
a present demise although no registered deed has been executed.
126

In a suit for possession by a lessor, the applicant / defendant who was
admittedly in possession by virtue of the unregistered lease deed, could
take shelter to protect his possession under Section 53-A of
the Transfer of Property Act.
127
So far a tenant already in possession
with a covenant for renewal in his favour can resist his eviction by the
landlord without filing a suit for specific performance if he has validly
exercised his option and if the suit for specific performance of the
agreement for renewal is not barred by limitation on the date of landlords
suit, on the equitable principle of part performance recognised under
the Transfer of Property Act.
128

But where the compromise-decree created a valuable right and interest in
the lessor whose legitimate claim for eviction of his lessee was resisted by
the appellant and postponed under that long-drawn litigation. The
existence of a legal right in the lessor was an admitted position and it was
sought by the appellant to be assailed rather, superseded by setting up an
oral agreement of sub-lease. The occupation of the plot by the appellant
under the decree was not that of a lessee. He was merely permitted to
remain in possession on payment of a sum which was termed as
compensation for use. and occupation. The appellant obviously cannot
invoke the provisions of Section 53-A, Transfer of Property Act.
129

In Lal Behari v. Kanakkanti,
130
B executed a patta for 25 years in favour of
K on a monthly rental, The patta was not signed by K but K went into
possession and effected improvements in terms of the patta. B sued K for
arrears of rent and eviction before the expiry of the patta. It was held,
that there was no implied tenancy from month to month, but the doctrine
of part-performance was applicable, It was said, that from patta the terms
necessary to constitute a transfer can be ascertained with reasonable
certainty, that the appellant in part-performance of the contract has taken
possession of the subject of the contract, that is, the disputed premises,
that he has been performing his part of the contract, and that, on these
premises, the transferor is debarred from enforcing against K any right
other than the right expressly provided by the terms of the contract; and
that, as it is expressly provided that K shall remain in the premises
undisturbed by B, this section does come to the aid of K.
This section has no application to a case where the document upon which
a party relies is not a contract of transfer by the lessor but is a Kabuli at
executed by the lessee.
131

An unregistered lease is admissible for defending possession obtained in
part performance of agreement of lease. Where the lease is for period
beyond one year and has been created by unregistered instrument, it
would be a monthly and not yearly lease. The lessee cannot rely upon
terms of leaserelating to thirty years lease period and take advantage of
Section 53A to protect his possession for 30 years.
132

(g) No renewal of lease by taking benefit of this section.
The lessee would not be entitled to renewal of lease by taking benefits of
Section 53A where he used property in question for different purpose, in
violation of Section 108 of the Act.
133

(h) Application of the section to the void leases.
It is well settled that Section 53-A of the Act confers no active title on the
transferee in possession, it only impose a statutory bar on the
transferor.
134

Thus a person who is let into possession on the strength of
void lease does not acquire any interest in the property but gets under
Section 53A only a right to defend his possession. As the section says,
this rightis subject to the condition that the transferee has performed or is
willing to perform his part of the contract.
135

This does not mean however that there cannot be a relationship of
landlord and tenant in any case where the transferee has taken
possession of theproperty under void lease or in part-performance of a
contract and is entitled to protection under Section 53A of
the Transfer of Property Act. Such a view would be incorrect and
encourage attempts to circumvent the protection of the Rents Act given
to the tenants. Whether the relationship of landlord and tenant exists
between the parties depends on whether parties intended to create a
tenancy, and the intention, has to be gathered from theacts and
circumstances of the case. It is possible to find on the facts of a given
case that payments made by a transferee in possession were really not in
terms of the contract but independent of it, and this might justify an
inference of tenancy in his favour,
136

(i) Application of the section to the void leasesOther agreements.
The equity has been applied to
(1) agreements to transfer property,
137
where an instrument is
not registered as required by law, if the agreement is performed in
part.
(2) also to agreements of sale, where the transferee had taken
possession without a registered conveyance.
138

(3) agreements to release under-tenures;
139

(4) usufructuary mortgages, where the intended mortgagee
entered into possession without a mortgage-deed being executed
and registered,
140

(5) compromises.
141

(j) Application of the section in eviction proceedings.
In Annamalai Goundan v. Venkatasami Naidu,
142
Ganpatia Pillai, J.,
considered the application of the provisions of Section 53A in the
proceedings for eviction instituted by a landlord under Act XXV of 1955
and observed that the moment possession is taken or continued under
the contract of sale the original relationship of landlord and tenant ceases
to exist and the landlord cannot take advantage of the provisions
of Act XXV of 1955 to file an application for eviction. He further held that
after the date of the contract of sale and after it was performed in part by
consideration being paid for the contract and the landlord allowing the
tenant to remain in possession by reason of the new statute created under
the contract, it was no longer open to the landlord to contend that the
right of possession claimed by the vendee was referable to the contract
of lease and the conditions laid down in Section 53A are fulfilled even
though a contract to sell alone was obtained. If the conditions stipulated
in the section are fulfilled, it cannot be denied that the landlord would be
helpless in a Civil Court if he resorted to that Court for evicting the
petitioners. In Chinna Thevar v. Gnanaprakasi Ammal,
143
there was no
dispute that the contract for sale has been performed in part and that it
was supported by consideration. The petitioner was also allowed to
continue in possession of the property. However, at the time when the
contract of sale was entered into, the term of the lease had expired and
the landlord was free to enforce his claim for possession subject to the
provisions of the Madras Cultivating Tenants Protection Act. It is obvious
that till the contract of sale was entered into the petitioner only occupied
the position of lessee. But after the date of the contract and after it was
performed in part by consideration being paid for the contract and the
landlord allowing the tenant to remain in possession by reason of the new
status created under the contract, it was no longer open to landlord to
contend that the right of possession claimed by the petitioner was
referable to the contract of lease. There was no doubt that the condition
laid down in Section 53-A are fulfilled.
In an eviction suit the tenant pleaded that he was put in possession of suit
premises in part performance of agreement to sell by vendor of landlord,
so the jural relationship of landlord and tenant came to an end, is
untenable. The relationship of landlord and tenant exists between the
parties.
144

Benefit of part performance cannot be claimed by lessee to resist his
eviction.
145

(k) Application of the section and effect of the provisions of A.P. (Telangana Area)
Tenancy and Agricultural Lands Act, 1950.
In C.V. Narayan Reddy v. Katanguru Raghava Reddy,
146
the question for
determination was whether in Telangana Area, the contracts of sale
followed by possession given to the alienee or transferee are valid and
lawful in view of Sections 47 and 50-B of the Andhra Pradesh (Telangana
Area) Tenancy and Agricultural Lands Act. 1950, without obtaining any
permission under Section 47 or without any certificate of validation under
Section 50B of the said Actand thereby enables the alienee or transferee
to avail the provisions of Section 53A of
the Transfer of Property Act and was thus liable for inclusion in the land
held by the alienee or transferee for the purpose of declaration under the
Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act,
1973. Indubitably Section 47 of the Tenancy Act no permanent alienation
and no other transfer of agricultural land shall be valid unless it has been
made with the previous permission of the Tehsildar. This position
continued up to 1969. Despite the existence of this provision on the
statute book thousands of cases of alienations, under agreements of sale
were brought about and the Legislature having noticed this fact amended
the Act in 1964 by inserting Section 50B making a provision for validation
of certain alienations and other transfers of agricultural lands. Thereafter
by Act 12 of 1969, the said Section 47 along with other sections was
deleted while retaining this enabling Section 50B the benefit of which was
extended eventually up to 31-3-1972. Though time and again extension of
the benefit of Section 50-B was made and the final one being up to 31-3-
1972 yet thousands of cases remained without availing the procedure of
validation under Section 50B. However, subsequent to 1969 no permission
for alienation of agricultural lands was required and the alienees and
transferees have been enjoying by being in possession of these lands ever
since. It was held by the Andhra Pradesh High Court
147
that subsequent to
the deletion Section 47 it was needless to establish for the purpose of
availing Section 53A of the Transfer ofProperty Act that the contracts
of sale entered into during the period when Section 47 was in force were
with permission. Since it stood deleted, it is no more imperative to show
that any such permission was obtained, nor the absence would invalidate
either the transaction or the possession of the land in the hands of the
alienee or transferee.
148

The Supreme Court in Nathulal v. Phool Chand,
149
in an analogous
circumstance arising under the provisions of the Madhya Bharat Land
Revenue and Tenancy Act, held that any agreement of sale entered into
even without making a condition therein contrary to Section 70(4) of the
said Act which enacted that prior permission before effecting the
registration of the sale deed was necessary, held that the said permission
was implied and the agreement entered into is not vitiated. The
permission could still be obtained before finally registering the sale-deed
and the parties could avail the benefit of Section 53A of
the Transfer of Property Act. The same is the view expressed by the
Supreme Court in Chandnee Widyavati v. Dr. C.L. Katial.
150

(l) Application of section to claim for protection of possession by agreement
holder.
If the agreement holder under Section 53A of the Act fulfills the
conditions to defend or protect his/her possession under Section 53A of
the Act can protect even if the suit for specific performance of agreement
is barred by time subject to fulfilment of the following necessary
conditions. 1. There must be a contract to transfer for consideration any
immovable property; 2. the contract must be in writing, signed by the
transferor, or by someone on his behalf 3. the writing must be in such
words from which the terms necessary to construe the transfer can be
ascertained; 4. the transferee must in part performance of the contract
take possession of the property, or of any part thereof; 5. the transferee
must have done some act in furtherance of the contract; and, 6. the
transferee must have performed or be willing to perform his part of
contract.
151

(m) Application of section to invalid agreements.
When the contract itself is illegal, the doctrine enunciated under this
section cannot be invoked. The doctrine can only be invoked and applied
to agreements which are invalid for want of registration. The section
cannot be invoked to validate other agreements. An agreement which is
invalid under any other law falls outside the scope of the doctrine and
neither the section nor the doctrine of equity on which the section is
founded can validate an agreement which the law says is invalid.
152
If the
contract is otherwise valid this section protects the possession of
the transferee, notwithstanding the fact that the contract is not registered.
But if the contract is invalid under any other law, this section obviously
cannot validate that which the law says invalid.
153

Where suit for specific performance failed, the holder of agreement of sale
can still take shelter under Section 53A of the Act.
154

Merely because a suit for specific performance at the instance of vendee
has become barred by limitation, that by itself is not enough to deny the
benefit of the plea of part performance of agreement of sale to the person
in possession.
155

(n) Conflict between rival transferees.
The contention of the counsel for the appellant was that even though
conveyance deed is unregistered, the appellants are entitled to take
advantage of the same under Section 53A of
the Transfer of Property Act. The objection of the respondents counsel
was that the appellants being plaintiffs were not entitled to invoke the
provisions of Section 53A of the Transfer of Property Act. To meet this
objection the appellants counsel relied upon the case of Pandit Ram
Chander
v. Pandit Maharaj Kanwar.
156
In that case the plaintiff was lessee of a
house under registered lease which was defective as it was not signed by
both the parties as required by Section 107 of
the Transfer of Property Act. The plaintiff instituted a suit against the
subsequent purchaser of the house for an injunction restraining him from
demolishing the house or otherwise interfering with his right as lessee. It
was held that although the lease was defective and inoperative, the
provisions of Section 53A of the Transfer of Property Act applied to the
case and that the plaintiff had a right of suit.
The transferee from a co-owner of an undivided property cannot claim
any exclusive possession on the basis of the transfer till partition takes
place. Resultantly, he can claim the benefit of Section 53A of the Act.
157

No protection is available under Section 53A of the Act where the
possession of the property or part thereof was obtained illegally or by
force.
158

Where the transferor himself signed the document in question and the
transferee paid half of sale consideration regarding the property in
question and was in possession thereof, the benefit of Section 53A of
the Act would be available to him to defend his possession.
159

Where the plaintiffs were put in possession prior to execution of sale deed
and they had constructed their house on two bighas of land, they were
entitled for protection under Section 53A of the Act.
160

A contract of sale of immovable property does not of itself create any
interest in or charge on such property but where a contract of sale was
not a mere agreement to sell but more than that, such contract of sale
definite creates an interest in the property. Such interest has been
protected under Section 53A of the Act.
161

Where appellants in possession of suit property under the agreement of
sale were willing and ready to perform their part of contract, the refusal of
benefit of part performance to them was held to be improper.
162

Where basic ingredients of Section 53A of the Act are fulfilled by the
transferee, he would be entitled to protect his possession.
163

A tenant would not be entitled to protection under Section 53A of the Act,
where he was not willing to pay balance consideration.
164

The protection under Section 53A is available to purchaser even if suit for
the specific performance of contract has become time-barred.
165

Where the transferee acquired possession of suit shop in part performance
of agreement, he at the most can avail benefit of Section 53A only as a
shield and not as sword.
166

The bona fide purchasers for value who had no knowledge of any defect in
the title of seller are protected by provisions of Section 53A of
the Act and sale deed in their favour cannot be void.
167

13. Rule under the section can be availed of only as a defence.--
(a) General.
Normally, the right conferred by this section is only available to a
defendant to protect his possession.
168
The transferee cannot take the
benefit of this section if he files a suit to establish his right as owner of
the property.
169

The appellant cannot claim the benefit of part-performance under the Act,
as doctrine of part-performance is equitable doctrine which cannot
override the specific provisions of Section 49 of Registration Act and
create a title in favour of appellants.
170

Where there is denial of contract, benefit under the Act cannot be
extended to defendant.
171

In Probodh Kumar v. Dantmara Tea Co., Ltd.,
172
plaintiffs, who were in
possession of the property under an unregistered document form the
previous owner relying on Section 53A filed a suit against a subsequent
transferee by a registered instrument from the same owners for a
declaration that the subsequent transferee has no right or title and were
debarred from enforcing any right. The suit was dismissed on the ground
that the plaintiff did not acquire any title and, therefore, could not rely on
Section 53A as they could not as for the relief of declaration. Relying on
this ruling, the Punjab High Court in similar facts held that the plaintiff can
take benefit of this Section 53A only in suit in which he is defendant.
173
In
the latter case similar view by Rajasthan High Court in Motilal v. Jaswant
Singh,
174
were approved. The views of Pandit Ram Chandra v. Maharaj
Kunwar
175
and Yenugu Achayya v. Ernaki Venkata Subba Rao
176
referred.
The above view of the Punjab High Court does not appear to be sound and
appears to be based on misconception of the rulings relied on by it.
For the contrary view, see the next note (b).
(b) Defence can be availed not only by defendants but also by plaintiffs.
The use of the word transferee in Section 53-A of
the Transfer of Property Act does not, in any way, limit the applicability
of this section only to a defendant. The transferee may be a plaintiff also
who is defending his possession on the basis of a contract in writing where
the deed, though required registration, has not been registered and he
can defend such a right. If this right under Section 53A of
the Transfer of Property Act is limited to a defendant only then it would
mean that any strong and powerful transferor can force a transferee in
possession to go to law Courts and thereby force him to lose
the property in spite of the provisions of the aforesaid section. This was
not the intention of the Legislature. The Legislature did not intend to
discriminate between a plaintiff and defendant so long as they used this
provision as a shield and not as a weapon of attack.
177
The plea available
to defendant because he files a suit for specific performance or the decree
becomes barred. Non-execution of the decree within the limitation cannot
extinguish the right under the agreement.
178

But there must the something on record to show that the plaintiff was
willing to perform his part of the contract.
179

A prospective vendee in a suit for specific performance cannot claim
temporary injunction to protect his possession.
180

The provisions of Section 53A can be used as a shield and not as a sword.
But protection is available to the transferee both as a plaintiff and as a
defendant so long as he uses it as a shield. Therefore the plaintiffs who
reclaimed certain land and remained in its cultivating possession can come
to Court to establish title on the basis of the Court of Wards records
agreeing to lease out the land to the plaintiffs on the payment of salami
to the Court of Wards, but before patta could be granted the Court of
Wards terminated.
The plaintiffs were entitled to lay their claim in the suit on the basis of
their arrangement made with the ex-proprietor of the Sukinda Estate
while that estate was under the management of the Court of Wards.
181

In a written agreement the plaintiff undertook to transfer disputed land
in favour of defendant against acknowledged receipt of consideration. The
defendant claimed to be in established possession of suit property as a
result of part performance of contract. The same could be good defence
by the defendant.
182

An objector who is in possession in part-performance of an agreement of
sale can object to the attachment of the property.
183

(c) The equity of part-performance under the section is a passive equity.
(i) General.
Under the English law, the equity of part-performance is an active
equity, which a plaintiff in possession may enforce by an
independent suit or proceeding, as by a suit for specific
performance or for an injunction to restrain dispossession. Before
the insertion of this section, in Hiralal v. Shankar,
184
the defendant
agreed to sell his land to the plaintiff; the latter paid the price and
was put in possession of the land, the contract was inwriting but
was lost; it was not stamped and could not be proved by secondary
evidence; but, as plaintiff had taken possession under the contract
his suit to compel execution of a registered conveyance was
decreed under the doctrine of part-performance. Such a case would
not now be covered by this section. because the right conferred by
this section is a passive right available only to the defendant to
protect his possession; and the section while it imposes a statutory
bar on the transferor, it does not confer any active title or right on
the transferee. Therefore, it is not possible for a person who is
entitled to the benefit of the section to bring a suit as plaintiff for
the purpose of enforcing his right to the property.
185
Plaintiff,
therefore, cannot claim injunction basing his claim on this
section.
186
But see Ashiq Ali v. Khalil,
187
in which a different view
has been taken. It has been said that an injunction can be
claimed. The right, which Section 53-A confers, is available only as
a defence to protect possession against the transferor, It imposes a
bar on the transferor from enforcing any right other than that
expressly provided under the contract. The right conveyed under
the section can be relied upon only as a shield and not as a sword
but the protection is available to the transferee both as a plaintiff
and as a defendant so long as he uses it as a shield.
188
Therefore
an objector cannot maintain the claim or objection under Order
XXI, Rule 58 of the Civil Procedure Code.
189

(ii) Misconceived view.
A misconception, in regard to the limited application of the section,
had crept in some decisions. In Ajabsing v. Jhabbulal,
190
a mistake
had been made in the deed regarding the survey number of the
land agreed to be sold. Possession, however, was delivered. It was
held, that, in the absence of a registered deed, no title could pass.
In such cases, the promisee cannot take advantage of the doctrine
of part-performance, if his suit for specific performance of the
contract, or for rectification of the instrument, gets time-barred.
But the limited scope of the section was not recognised.
In Suleman v. Patell,
191
a lease-deed for a period of five years was
reduced to writing signed by both parties but not registered.
Subsequently, the lessee took possession of the premises and
remained inoccupation. and later vacated the premises after giving
notice. The lessor brought a suit for damages for breach of the
agreement. It was held, that the lease, though unregistered, was
admissible to show that the plaintiff could enforce his right to claim
damages for breach of the agreement as provided by one of its
terms under the provisions of this section. It was observed, that all
rights and liabilities under the agreement become mutually
enforceable, provided that all the other conditions of the section
are fulfilled, as the Legislature could not have intended, in
recognising the equitable doctrine, to do equity to one party to the
agreement and not to the other. But, in permitting part-
performance to be used as a ground of attack, the Court
overlooked the cardinal principle that part-performance must be
the act of the person seeking to avail himself of the equity, and
that acts of the person sought to be charged are of no avail.
192

In Mastram v. Ma Ohn,
193
the appellant brought a suit against the
respondent O, M and L for the possession of a house and a house
site. O and L did not contest the plaintiffs right to possession. For
sometime the house had been in the joint occupation of the
respondents. Their title was derived from V who had bought the
house and site from T.V. conveyed the property to L only by an
unregistered document. L, however, executed a registered
mortgage of the house to the appellant. O and M contended that
they were owners of the property and that they had purchased it
by an oral agreement from V eight years prior to the suit, but this
was false. It appeared that L entered into possession in part-
performance of the contract of sale between her and V and
continued in possession. The appellant derived his title through L
but the respondents O and M derived their title through V. It was
held that Section 53-A was applicable and the respondents were
debarred from enforcing against the appellant, who was claiming
under the transferee, any right in respect of this property.
Besides these, reference may be made to two cases. In Kaura Ram
v. Chaman Lal,
194
one of the executants of the sale-deed was not
present at registration and it was void as to his share, but
the transaction was given effect to by all the vendors including the
executant who was not present at registration. In the course of the
partition, a question arose as to the area appertaining to the land
sold. It was contended by the vendor, who had not appeared at the
registration. that the plaintiff was not entitled to his share. But the
Court overruled the contention and held that, as the vendee had
been put in possession of the land and there had been part-
performance, the principles underlying the doctrine of part-
performance were applicable and the plaintiff was entitled to the
area which had been decreed to him by the lower Court.
In Padamalabha Panda v. Appala Narasamma,
195
it was held that
the section does not provide that the transferee, notwithstanding
the part-performance of the contract, acquire any enforceable right
except the right of specific performance of the contract as against
the transferor or any person claiming under him. The only
equitable relief that is made available to him is to disqualify the
transferor, or his privy, from enforcing any right in respect of
the properties. The disqualification is more or less personal as,
according to the provision, it does not affect the rights of a
transferee for consideration without notice of the contract, or of the
part-performance thereof. The proviso necessarily leads to the
result that the section does not vest the transferee with any
substantive right under the contract which ensures as against the
whole world. The disqualification of the transferor debars him from
enforcing against the transferee any of his rights to or in respect
of the property. The section provides an available defence to the
transferee when either the transferor, or the person claiming under
him, seeks to enforce a right. No man can be allowed to profit by
his own wrong. The transferor is in the wrong and not be allowed
to rely on his own wrong to enforce a right in respect ofproperty,
the subject-matter of the contract.
(iii) The proper view.
The decisions betray a misconception of the scope of the section. It
may be re-stressed that the right which is conferred by this section
is in the nature of a passive equity, available to the defendant, only
for protection of his possession, without conferring upon him any
active title, and, on its basis, the section does not permit him to
sue. Thus, in a suit, brought by the buyer for the return of the
price paid by her to the seller, who had agreed to sell his house to
her, and put her in possession of the house, this section cannot be
availed of by the seller, if the contract does not furnish a cause of
action for the claim by him to obtain the full price of the house
agreed to be paid to him.
196

In Probodh Kumar v. Dantmara Tea Co., Ltd.,
197
it was observed,
that the amendment of the law, effected by the enactment of this
section, conferred no right of action on a transferee in possession
under an unregistered contract of sale. The right conferred by this
section is a right available only to the defendant to protect his
possession. The section is so framed as to impose a statutory bar
on the transferor to the extent mentioned in it, and it confers no
active title on the transferee.
(d) The extent of the defence.
The extent of the defence depends according to the facts and
circumstances of each particular case. Where the transfer or the
contract, though required to be registered, has not been registered, or
where the transfer has not been completed in the manner prescribed
therefor by the law for the time being in force, and the transferee can
protect his possession under this section, then neither the transferor nor
any one claiming under himnot even the official assignee or the receiver
in whom the estate of the transferor has vested on his adjudication, can
take possession of the property, if the transfer is a mortgage, without
discharging the mortgage-debt. The unregistered document, or the
incomplete transfer can be used as a shield to protect possession which
has been delivered under the unregistered document, or the
incomplete transfer. If the transferee is in possession, then the
unregistered instrument, or the incomplete transfer, can be made use of
to protect the possession under the doctrine of part-performance, and the
transferee is even entitled to prove his claim in insolvency, or to rank as a
secured creditor.
198

(e) In sum.
Under this section, the proposed transferee can protect his possession by
invoking it, but cannot assert any active title on the strength of that
possession. The transferor is debarred from enforcing against the
transferee only rights in respect of the property of which the transferee
has taken possession other than a right expressly provided by the terms
of the contract, and this bar does not depend upon the array of the
parties. The transferee can resist any attempt on the part of the transferor
to enforce his rights in respect of the property whatever position he may
occupy in the field of litigation. Whether the transferoris the plaintiff or
defendant, he cannot enforce his rights against the transferee, except
rights expressly provided by the terms of the contract. The protection is
available to the transferee both as a plaintiff and as a defendant, so long
as he uses it as a shield,
199
and not as a weapon of attack.
(f) The operation of the section.
The section does not create any title in the defendant. It only debars the
transferor, or any person claiming under him, 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. The section merely operates as a bar to the plaintiffs (whether
transferors or transferees) asserting their title.
200

So far as the transferee is concerned, the section confers a right on him to
the extent that it imposes a bar on the transferor. But this is only a right
to protect his possession against any challenge to it by the latter, contrary
to the tenor of the contract or the instrument of transfer.
201

Where there was an applied term of the contract between the parties that
the previous sanction of the Collector has to be obtained by the vendor in
order to complete the transfer and that until and unless such sanction is
obtained, the transaction is not complete and enforceable. The transferee
who has obtained possession in terms of the contract and has satisfied the
Court that the other conditions in Section 53-A of
the Transfer of Property Actare fulfilled can rely upon the terms of such
a contract to seek the protection of the Court under Section 53-A of
the Transfer of Property Act, and the vendor will be debarred from
enforcing any right in the property against the transferee except the
rights expressly provided by the terms of the contract.
202

An agreement to sell the property which requires sanction of another
authority might be construed to include a covenant to apply for such
sanction. But where sanction has been applied for and has been refused
by the concerned authority, it is still open to the respondents to claim
refund of consideration as on the principles laid down by their Lordships of
the Privy Council in Buda Raja Mohan Manucha v. Babu Manzoor Ahmad
Khan.
203

So far as the transferor is concerned, the section sanctions the
enforcement by the transferor of a right which has been expressly
provided by the terms of the contract. It secures the result of enabling the
transferor to enforce his contractual rights against the transferee in
respect of the property. This right of the transferor is not dependent
upon fulfilment of all the conditions mentioned in the section. They cannot
be conditions precedent to the enforcement of the transferors right, they
are only conditions precedent to the imposition of the bar against the
transferor and consequently conditions precedent to the accrual of the
transferees right to protect his possession.
204

(g) When part-performance assists a plaintiff?Suits under Order XXl, Rules 63
and 103.
Part-performance assists a plaintiff only in the case of a suit for specific
performance by virtue of Section 27-A of the Specific Relief Act. The
section does not, however, warrant the conclusion that the plaintiff, as
such, is necessarily debarred from the benefit of the rule in other cases.
So where, for example, by the nature of the case as disclosed by
pleadings or otherwise, it is apparent that the transferee sues to defend
his possession against the invasion of it by the transferor, he is entitled to
invoke the aid of the section.
Therefore since the object of a suit, under Order XXI, Rule 63 or Rule 103,
is to protect possession, and the capacity in which the plaintiff comes to
the Court is in reality of defence, the plaintiff can take advantage of this
section. The mere position of a party in the heading of a suit would not
determine whether he is or is not entitled to the benefits of the section.
Where the plaintiff has been forcibly dispossessed before the date of the
suit and the true nature of the deed under which he claimed was a
permanent lease which fails for want of execution, the plaintiff could still
be said to be defending the possession and could avail of the provision of
this section.
205
1n Krishnappa v. Abdul Khadar,
206
it was pointed out.
a suit brought under Order XXII, Rule 63... is a mere continuation
of the proceeding in a claim petition... suits of this class though
called original suits, are not in their essence original actions but
merely forms of appeal allowed by the Civil Procedure Code to be
brought in the guise of original suits."
To the same effect are the decisions in Khairulla v.
Dhanrupmal,
207
Rameshwar Lal v. Supdi,
208
Bas Kuar v. Gaya
Municipality.
209
There is no essential difference in respect of this matter
between suits under Order XXI, Rule 63 and those falling under Order XXI,
Rule 103. In both cases, the object of the suit is to protect possession and
the capacity in which the plaintiff comes to Court is in reality one of
defence.
210

A person in possession in part-performance of an agreement for sale can
on its basis bring a suit for possession when illegally dispossessed.
211

(h) Relief of injunction to plaintiff in a suit for specific performance.
A plaintiff cannot be disentitled for a relief of injunction only on the ground
that the possession he is claiming, or which he wants to protectis not a
possession based on title. There is no bar under the Civil Procedure Code
that a plaintiff suing for specific performance cannot obtain any injunction.
Therefore, a person in possession in part-performance of an agreement of
sale is entitled to an injunction in his suit for specific performance.
212

In the present case from the writing a copy of which is Ex A to the plaint,
it is not possible to know which land admeasuring 224 square yards out of
22 acres of land out of Survey No. 357 belonging to the defendant No. 1
was agreed to be sold to the plaintiff. The writing also does not indicate
that in pursuance of the agreement for sale, possession of the land was
delivered to the plaintiff. Therefore, the plaintiff cannot defend his
possession as against the owner of the land from whom he is said to have
agreed to purchase the land with the aid of the provisions of Section 53-A
of the Transferof Property Act. If the vendee somehow enters into
possession of the land but if it is not referable to the agreement for sale
and is not in part-performance of the contract, the vendee cannot protect
his possession of the land as against the true owner on the ground that he
has entered into an agreement for purchase of the said land. In the
present case, it is true that the defendant No. 1 did not reply to some of
the notices served by the plaintiff on him, but only on that basis it cannot
be held that the plaintiff obtained possession of the suit land in part-
performance of the agreement for sale, dated 23rd January, 1978.
Consequently, the plaintiff is not entitled to the temporary injunction
sought by him. The order of the trial Judge granting the notice of motion
of the plaintiff cannot be sustained.
213

Section 53-A of the Act does not confer a right on transferee to move an
application for temporary injunction under Order XXXIX, Rules 1 and 2 of
C.P.C. in a suit for specific performance on the basis of unregistered
agreement for sale which requires compulsory registration but it creates
only an estoppel against the person enforcing any right
to property against transferee.
214

(i) Defendant can claim protection, though his right of specific performance is
barred but it does not confer a right to enforce specific performance.
The section protects the possession of a defendant against whom a suit in
ejectment has been fled. It does not confer any right upon a person in
possession. What it purports to do is to prevent a plaintiff from recovering
possession of the property already transferred by him to the defendant.
It imposes upon the transferor-plaintiff a disability of enforcing against the
transferee in possession any right which he may have in respect of
theproperty. Although the defendants right to obtain specific
performance be barred by time, he still has the right to remain in
possession as against the plaintiff and he is entitled to resist the plaintiffs
suit for ejectment and to defend his own possession.
215
So also where a
suit for specific performance was fled and dismissed by first appellate
court and no second appeal was filed.
216
The plaintiff proved by evidence
that he paid a sum of Rs. 300 as part payment of the consideration of the
fact that by Exhibit A earlier agreement of sale with another person which
was held to be a collusive document, no right and title could be acquired
in respect of the suit land by third person and the title remained with the
defendant coupled with the facts that the plaintiff was delivered
possession immediately after execution of Exhibit 1 of his agreement of
sale and has been in occupation of the land. The plaintiff could approach
the civil court for decree in suit for specific performance of contract of
sale.
217
In Maneklal v. Harmusji,
218
the defendants suit to enforce specific
performance of the agreement was barred by time. But the question of
limitation was not raised before their Lordship. It was observed :
Section 53A. is a partial importation of the English doctrine of
part performance. It furnishes a statutory defence to a person who
has no registered title in his favour to maintain his possession...
The section does not itself confer a right of specific performance. At the
same time, it does not affect the right of the transferee to obtain specific
performance, if the same is available to him in law.
(j) Suit by transferee in possession against third persons.
Where the document, taken as a whole, cannot be construed as a mere
contract but evidences-(i) an actual transfer of interest, and (ii) also the
delivery of possession of the property for consideration, paid in whole or
in part, the document is a deed of transfer within the meaning of
the Act; and, if it is not effected by a registered deed, the title of the
plaintiff to the land, even against the transferor, is defective, and is likely
to be impeached on that ground. In such a case the transferee, ordinarily,
cannot come in as plaintiff but where the suit is not against the transferor,
or any one claiming under him, but is against a person, who has
dispossessed him, and if the suit is brought within 6 months from the date
of dispossession, it is not open to the defendant, be he the true owner
himself, to raise the question of title at all. And on the expiry of that time-
limit, the defendant who is a mere trespasser, or a person without title,
cannot non-suit the plaintiff, for possession is a good title against any one,
who cannot show a better title. Want of a registered deed may render
the property title somewhat defective, as against the true owner, but the
possession, given in pursuance of a transaction of transfer, cannot be
violated even by the true owner. Even if the owner sues for possession,
the transferee can resist the suit under this section, if he can avail of the
same. When the right to remain on the property can thus be defended
against the true owner, a mere trespasser, or person without title, cannot
defeat such a right.
219

14. Protection under the section, cannot be claimed.--
Where very document in pursuance of which claim of possession is found to be
not true and the plaintiff had no capacity to execute document in favour of
appellants, no protection under Section 53A of the Act can be claimed.
220

The benefit under Section 53A cannot be claimed where plea as to part
performance of contract namely taking possession of property in question in
instant case) was not taken in written statement.
221

The benefit of protection under Section 53A is not available to transferee who
remains passive.
222

Protection under Section 53A is not available where there was no evidence in
support of part performance. Besides doctrine is also not available where parties
are not signatories to agreement.
223

The benefit of doctrine of part performance is not available in the absence of a
valid document from which the court can ascertain the terms of document with
reasonable certainty.
224

Where, there was no written agreement to sell between parties, only an oral
agreement was sought to be proved by the defendant, the question of invoking
Section 53A of the Act would not arise.
225

Where possession was not handed over to the purchaser and he is a bona fide
purchaser for value and was not aware of the agreement of sale before purchase
of the property, the benefit of Section 53A of the Act would not be available to
him.
226

Where a person who is put in possession of the suit property is not the proposed
transferee but is a person who claims that the property has already been
transferred in his favour, the principle of part performance cannot apply.
227

Unless an agreement for sale contains the provision that possession is being
transferred or would be transferred in part performance the, Section 53A of
theAct would not apply.
228

Where the possession was delivered at the time of execution of agreement of
sale, the protection claimed under Section 53A of the Act would not be available
to the plaintiff as such protection is available only in respect of third parties till
registration of sale deed.
229

In a case equitable mortgage was created on Jan 18, 1996 for the loan then
granted and confirmed to be renewed and continued on July 14, 1999. The
petitioner prima facie failed to establish that equitable mortgage was created in
1999 after agreement to sell and purchase had been entered by him with
mortgagor. The petitioner could not urge that he was bona fide purchaser for
consideration prior to creation of equitable mortgage. Rights of bank were not
that of transferee. The petitioner would not be entitled to protection of his
possession under Section 53A of the Act.
230

The provisions of Section 53A of the Act are not applicable in cases where a
decree is executed by a third party i.e. a person who is neither a party to the
agreement nor claiming through any such person under the agreement.
231

Once the defendant has taken the plea of creation of tenancy in his favour and
such plea has been turned down, he is not entitled to take the plea of part
performance embodied in Section 53A of the Act when he has taken the plea of
full performance culminating in the alleged right of tenancy in his favour.
232

If each and everywhere in the written statement, evidence and paper book the
defendant has shown himself as a monthly tenant, then he is a monthly tenant
and existence of original agreement to draw an inference about part performance
under Section 53A of the Act does not lie.
233

The transferee cannot claim the aid of Section 53A where in a suit for injunction
no written contract of transfer of immovable property came into existence nor
any date was furnished on which alleged possession was delivered to the
transferee.
234

The tenant cannot take benefit of doctrine of part performance where nothing
was done on the part of the tenant in furtherance of agreement of sale.
235

The plea of part performance was held to be not available to the defendants as
they failed to plead in their written statement that they were ready and willing to
perform their part of contract.
236

The bona fide purchasers for value, having no knowledge of defect in the title of
seller are protected under Section 53A and sale deed in their favour cannot be
declared to be void.
237

A person cannot claim protection under Section 53A of the Act where he was
never ready and willing to perform his part of the contract.
238

Where a party alleged that he was in possession of property on basis of
agreement of sale, he cannot avail the defence under Section 53A of the Act to
protect his possession.
239

Where in a transfer of property by the guardian of minor by oral agreement of
sale, ingredients of Section 53A are not satisfied, the buyer cannot claim
possession of suit property in part performance of contract.
240

The provision under Section 53A requires that person claiming the benefit of part
performance must always be ready and willing to perform is part of contract. If it
is shown that he was not ready and willing to perform his part of the contract, he
will not qualify for the protection of Section 53A of the Act.
241

The proposed transferee cannot use Section 53A to sue the transferor for a
declaration of title but he can avail benefits under Section 53A as shield to retain
his possession.
242

A person, who is not ready and willing to perform his part of contract, is not
worthy to claim protection under Section 53A.
243

For invoking the part performance doctrine, an agreement to sell in writing
between parties is must. If there was no written document to sell in between the
parties and payment of sale consideration by tenant to landlords was also not
established then the tenants would not be entitled to benefit of Section 53A.
244

After the expiry of period of lease, the defendants possession is not protected
by Section 53A of Act, thus he cannot continue occupation of the suit
premises.
245

15. Person.--
The word person is comprehensive enough to include all persons, whether
natural or artificial, who are recognised as persons in the eye of the law. In some
cases, it may include a joint Hindu family.
246

16. Transferor.--
In order to determine, whether a person is a transferor, the tests are :
(1) Whether the contract was binding on the person and could have been
specifically enforced against him?
(2) Whether, if the transaction has been completed by a duly executed
and registered deed of transfer, the transfer would have been binding
on the person concerned?
If the answer to both these questions is in the affirmative, then the person
answers the description of the transferor within the meaning of this section.
Where the father in a joint Hindu family, consisting of himself, and his minor
sons, enters into a contract of sale of ancestral Immovable property for
consideration and for legal necessity or for the payment of antecedent debts, and
lets the transferee into possession of the property in pursuance of the contract,
but the sale-deed remains unregistered owing to his sudden death, the sons, who
were minor at the time of the contract, answer the description of the expression
transferor occurring in the section.
247
So also where a contract for sale is made
by mother as guardian on behalf of her minor son and the contract is within the
competence of the guardian and for the benefit of the minor, the minor is a
transferor within the meaning of this section.
248

17. Contracts to transfer.--
(a) General.
There is a distinction between
(1) a transfer, and
(2) a contract to transfer.
(b) Transfer.
The word transfer includes
(1) sales;
(2) usufructuary mortgages;
249

(3) leases;
250

(4) exchanges.
It has no application to
(a) family arrangements;
251

(b) partitions;
252

(c) surrenders.
253

The word transfer has to be interpreted in the narrow sense in which it
is used in the Act. Whether a particular transaction amounts to
a transferdepends upon the facts and circumstances of each case. It
would be a question of fact and sometimes a mixed question of law and
fact.
The requirement of a transfer, for example, of a transfer by way of sale,
is transfer of ownership. Where there is nothing in the facts or
transaction from which it can be inferred that the parties intended
to transfer ownership; on the other hand, the act or transaction makes it
perfectly clear that the parties intend that sale-deed should be executed
at some future date, as it cannot be executed on that date for certain
reasons, the ownership in the property does not pass from the vendor to
the vendee by that act or transaction and the transaction does not pass
into the realm of transfer but remains only a contract. If the vendee is
put in possession of the property in pursuance of such a contract, he is
entitled to the rights conferred by this section, though that does not make
him the transferee of the property.
254

A contract must be in writing from which the terms necessary to
constitute the transfer can be ascertained with reasonable certainty.
255

For document which was sought to be registered on stamp paper required
for agreement to sell and in which the heading was agreement to sell-
cum-possession letter. Section 53A will not be attracted.
256

(c) Gifts.
A gift does not involve a contract. This section is confined to transfers for
consideration. A gift is not a transfer for consideration. Therefore, the
section excludes gifts.
257
Besides a gift is complete on acceptance subject
to registration.
258

(d) Contracts to transfer.
An essential condition for the applicability of the section is that a person
should contract to transfer property.
259
An unregistered or incomplete
deed of transfer may operate as a contract to transfer. But an
agreement to transfer a partial interest e.g., a right to win minerals or
cut timber, the grantor not excluding himself from working the mines, is
not a transfer of property within the meaning of this section.
260

(e) Effect of a contract which is not binding.
Where the contract to transfer immovable property is not valid as an
agreement, or a contract, or a transfer, it cannot be used as a shield in
accordance with the provisions of this section. So, where the transfer of
possession is not in pursuance of a valid contract of transfer, it cannot be
said that possession has been given in part-performance of the contract
to transfer. In such circumstances, the requirements of this section are
not fulfilled, and the defendant cannot get any support from the provisions
of this section.
261
So also, a person cannot establish a case of estoppel
merely by giving that he has built structures by relying on an
invalid lease.
262

So also where a lease is executed by a Municipality in contravention of
the mode prescribed by statute. Section 53-A will not apply. Such
a lease is not an instrument of transfer.
263

(f) Proof of contract to transfer.
A contract of transfer, is required by this section to be in writing and
signed by the transferor or by some one on his behalf. If it is established
that there was a document of the description envisaged in the section,
oral evidence can be given to prove its existence and its contents.
In construing this section, resort can be had to Section 65 of the
Evidence Act, and the existence and contents of the document can be
established by secondary evidence.
264

One of the essential ingredients of the section is that the terms necessary
to constitute the transfer should be ascertained with reasonable
certainty. If it is not possible to gather the terms of the contract from
secondary evidence, the section cannot come into operation.
264

The quantum of the interest conveyed, and other relevant matters,
depend upon the terms of the instrument, the purposes for which
the transfer is made and other relevant matters. An intention to deal
with, for example, the entire estate, may be inferred in the case of
a transfer by the manager of a joint Hindu family or a Hindu female, from
recitals of necessity or benefit, which would have no meaning, if the
transferor was only dealing with his own interest, but which would be
necessary and relevant of an absolute title if the whole property were
conveyed. In the absence of the document, or unimpeachable evidence as
to the terms of the recitals thereto, it is difficult to judge the nature of
the transfer, the extent of the estate conveyed thereunder, etc.
18. For consideration.--
The words for consideration in the section indicate that it applies only to
contracts of transfer for consideration and not to gifts.
265

Where the passing of consideration is not a term of contract but is proved by oral
evidence, by virtue of Proviso 2 to Section 92 of the Evidence Act, the section
becomes applicable.
266

The section can be availed not only by a party to the transfer for consideration,
but also by persons claiming under that party.
267

Where the compromise decree constituted a contract between the parties for
consideration and it was in writing, it was found that the defendant had taken
possession pursuant to the compromise decree, that he has since continued to be
in possession and that patta also had been transferred to his name, hence the
compromise decree could not be viewed as a family settlement which merely
embodied a settlement between the parties in which the title of the one is
acknowledged and recognised by the other. To such a transaction of family
settlement Section 53A of the Transfer of Property Act has no application. But
the compromise decree was not merely one recognising pre-existing title but it
operated to transfer to the defendant some of the properties which exclusively
belonged to another member of the family. The defendant had no pre-existing
title or claim thereto.
268

A forcible possession obtained by the vendees without the payment of any
consideration would not entitle them to retain the possession by invoking
Section53A the Transfer of Property Act. The defendants were thus in illegal
possession of the land and the suit of the plaintiff had been rightly decreed by
the lower appellate Court.
269

From the statement of respondent that the sale in favour of appellant is a sham
bogus one, cannot be inferred that the sale is not supported by consideration and
the knowledge of prior-agreement on part of appellant.
270

19. Any immovable property.--
The section is confined to contracts of transfer, for consideration of
immovable property.
271
It cannot be applied to contracts for transfer of
movableproperty.
272

20. By writing signed by him or on his behalf.--
(a) General.
The requirement of the section is that a person should contract
to transfer immovable property by writing signed by him or on his
behalf
273
Section53A does not mandate such an explicit statement of
the authority of the executant in the agreement if he has real authority to
bind the real owners of the property. The Court should give a purposive
and meaningful construction of the words used signed by him on his
behalf. It follows that
(1) the contract to transfer immovable property must be in
writing; and
(2) It must be signed by or on behalf of the person sought to be
charged.
274

An oral agreement is not sufficient.
275
So, the section can have no
application, where there is no contract to grant a lease in writing. An oral
agreement to grant a lease, reserving a yearly rent, by itself, is no
defence to a suit for ejectment by the owner of the land.
276

To attract the application of this section, the contract may not have been
signed e.g. in the case of a lease both by lessor and lessee. It is enough
that there was a completed contract of lease to attract the provisions of
this section.
277
A mere contact should be distinguished from
the transferitself.
The contract which is sought to be enforced must itself constitute the
transaction of transfer in order that the section may be held to apply.
278

(b) The contract must be in writing.
If the contract of transfer is not in writing, the section cannot apply.
279

The doctrine of part-performance, as embodied in this section can be
invoked only when there is a writing in existence, signed by the transferor
or on his behalf. The writing is an essential sine qua non for the
applicability of the doctrine of part performance. Therefore, a transaction
of sale, requiring compulsory registration under Section 54 of the Act, if
oral, is not saved by the doctrine of part-performance.
280
The section
clearly contemplates that the contract itself shall be in writing, and not
that there shall be a writing referring to some part or parts of a contract
which may previously have been oral. A reference to an oral sale in a
mutation recorded by a patwari cannot be equated with a writing of the
transaction itself.
280
It is clear that, where an agreement of transfer is
not in writing, the section cannot be applied.
281

The doctrine of part-performance, as enacted in this section, forms part of
the substantive law. As to how far the writing, referred to therein, is to be
proved, is a question to be decided by procedural law.
281
The terms of a
contract may, however, be proved either by primary or by secondary
evidence; but the terms must be proved from the contract itself and from
relevant evidence.
282
The section cannot apply, if there is not written
instrument totransfer the property in suit. So, the transferee can
acquire no title to the property in suit, if the written instrument does not
purport to convey it, unless the case is one where the plaintiff can seek
rectification of the instrument or specific performance
.283
A writing, which
refers, by mistake to a different property cannot entitle a person, who
claims under the doctrine of part-performance, to the benefit of this
section.
284

(c) A formal agreement is unnecessary.
It is not necessary that there should be a formal agreement or
deed.
285
Any informal writing, signed by or on behalf of the person making
the transfer, would be sufficient. It is clear from Section 91 of the
Evidence Act that when the terms of a contract or other disposition
of property are reduced to the form of a document, the document takes
the place of the oral agreement, and it is a contract in writing within the
meaning of this section.
286
An unregistered instrument of transfer, e.g., a
sale-deed is a contract in writing.
287

(d) The writing must be signed.
The writing must be signed by the transferor or on his behalf. The section
is applicable only, where a person, having contracted
to transfer property by writing signed by him or on his behalf, puts the
transferee in possession. The section precludes a transferor, from
asserting his title, in respect of theproperty purported to be transferred
by him, only when the conditions contemplated by it are fulfilled. It is
based on the rule of estoppel. It cannot be used against a person who has
not contracted to transfer the property by a writing signed by him or on
his behalf. Thus, it cannot be applied against a member of a joint Hindu
family who has not agreed to transfer the property by a writing signed
by him or on his behalf. But an agreement of transfermade by the
manager of the family bind all the coparceners, provided it is within the
competence of the manager to make as it is, where the transferpurports
to be made for legal necessity or for the benefit of the family. In such
cases, the manager is vested with the authority to represent the family
and to sign the writing on behalf of the coparceners.
288
In such a case, the
transferee can avail of the section against the other coparceners on the
basis of the writing signed by the manager which is taken to be signed on
behalf of all the coparceners. The analogy may be extended to cases of
writings signed by guardians on behalf of their wards, and to other proper
cases.
In Labhchand v. Sharifabi,
289
it was observed, that a liberal construction
should be placed on the expression signed on his behalf as such a liberal
construction would advance the carrying into effect the intention of the
Legislature underlying the provisions of this section.
The provisions of this section come into operation only when there is some
writing signed by the transferor. It does not require the writing to be
signed by the transferee. It has no application to cases where the
document on which a party relies is not a contract of transfer by the
transferor, e.g., where it is a kabuliyat executed by the lessee.
290

The section applies only when a person contracts to transfer for
consideration any immovable property by a writing signed by him or on
his behalf. Thus, in the case of a contract to transfer on behalf of a
partnership, the writing signed by one partner would bind the other
partners, only, if the partner signing has authority to make
the transfer on behalf of the partnership.
291

21. From which the terms necessary to constitute the transfer can be
ascertained with reasonable certainty--
The words from which refer to a contract in writing. If there is no contract in
writing, the mere fact that there is other evidence from which the terms
necessary to constitute the transfer can be ascertained with reasonable
certainty is not sufficient. A writing merely referring to a pre-existing oral
contract is not sufficient to come within the protection of the section. A distinction
must be drawn between a writing which is a reduction into writing of a previous
oral agreement which will fall within the provisions of this section, and a writing
in which there is a mere reference to a previous oral agreement.
292

The writing signed by the transferor must clearly make certain the terms
necessary to constitute the transfer.
293
A contract, the terms of which cannot be
enforced with reasonable certainty, cannot be enforced.
294

In Ram Krishna Singh v. Mahadei,
295
the Patna High Court inferred a completed
contract from the deed and past and subsequent conduct of the parties.
22. In part-performance of the contract.--
(a) General.
The conditions necessary for the application of the section are
(1) any person must have contracted to transfer for consideration
any immovable property by writing signed by him or on his
behalf;
(2) the writing must be such from which the terms necessary to
constitute the transfer can be ascertained with the reasonable
certainty; and
(3) the transferee must, in part-performance of the contract, have
taken possession, etc.
It is to be observed that
(a) an act of part-performance must be the act of the party
seeking to avail himself of the equity of part-performance;
(b) that act must be done in performance of the contract; and
(c) the act must be unequivocal and referable to no other contract
than that alleged.
Before the enactment of the section, the Judicial Committee of the Privy
Council had laid down
(1) that the doctrine of part-performance takes a document
requiring registration out of the Registration Act and this Act;
296

(2) the equity of part-performance cannot have the effect of
superseding the provisions of the Registration
and Transfer of Property Acts, and of creating an interest which
under those Acts can only be created by a registered
instrument.
297

The section is not inconsistent with the decision in Ariff v. Jadunath.
297
Its
effect is to relax the strict provisions of the Registration
and Transfer ofProperty Acts, in order to allow the defence of part-
performance to be established. By virtue of this section, part performance
does not give rise to an equity butto a statutory right.
The second paragraph of the section adopts the rule that an act of part-
performance must be an unequivocable act, referable to the contract. The
expression in part performance of the contract points to the fact that the
transferee must have taken possession, or continued in possession, in
part-performance of the contract. The section would not be applicable, if
he takes possession, or continues in possession, otherwise than in part-
performance of the contract.
Even an unregistered document about part-performance is admissible in
evidence and defendant cannot object it in appeal.
298

Where possession of property in question is not proved the plea of part
performance should be rejected.
299

(b) Contract infringing a provision of law
Plea of part-performance cannot be sustained.The word contract in the
expression in part-performance of the contract means a valid contract.
So, where the transfer of possession, or continuance of possession, is not
in pursuance of a valid and binding contract, it cannot be said that
possession has been given in part-performance of a contract. In such
circumstances, the conditions for the applicability of the section are not
fulfilled.
300
If the contract is invalid in any way, or under any law, this
section cannot validate that which the law says is invalid.
301
So too,
contracts infringing the provisions of any law are not allowed to sustain
the plea of part-performance.
302
The doctrine can only be involved and
applied to agreements which are invalid for want of registration. The
section cannot be invoked to validate other agreements. An agreement
which is invalid under any other law falls outside the scope of the doctrine
and neither the section nor the doctrine of equity on which the section is
founded can validate an agreement which the law says is invalid.
303

Where in pursuance of an agreement of sale the prospective vendee was
put in possession but the sale came off after coming into force of a
provision by amendment of law requiring prior permission of the Collector
[Section 8-B, Daman (Abolition of Proprietorship of Villages) Regulation,
1962, doctrine of part-performance could not be invoked.
304

(c) Acts of part-performance must be in part-performance of the contract.
To invoke the aid of this section, it is necessary to determine whether the
transferee, who was not in possession prior to the transfer in question,
was inducted upon the immovable property in pursuance of
the transfer in question or not. It must further be established that he has
done some act in furtherance of the contract.
305

The act of part-performance must be an act done in performance of the
contract as distinct from those acts which are introductory or ancillary to
such performance or referable to some other arrangement.
306

The doctrine of part-performance cannot be availed of as laid down by the
Supreme Court in Delhi Moter Co. v. U.A. Basrurukar,
307
where the rights
as a lessee are not enforceable on the ground of the tenant having
performed his part of the contract. The question relating to part-
performance falls into insignificance if the tenant was only holding over
from month to month.
308

Where a vendee paid money for buying stamps for the sale-deed under
which he has purchased the property, it was held by the Madhya Pradesh
High Court that he has done something in furtherance of the contract.
309

The Legislature has used the expression with regard to possession in
Section 53A of the Act as and the transferee has, in part-performance of
the contract, taken possession of the property or any part thereof.
The act of giving possession has not been left at the mercy and option of
the transferor, but of taking possession by the transferee himself, as in a
given case, the dishonest intention may set in on the part of the
transferor even before the stage for delivery of possession arrives. It.
cannot be held that the delivery of possession contemplated under
Section 53A must be at the instance of the vendor in part-performance of
the contract in furtherance of his intention to complete the contract.
310

Where the terms necessary to constitute the transfer could not be
ascertained with reasonable certainty from the latter, the respondent
obviously was unwilling to perform his part of the contract, and the
appellant was not put in possession in part-performance of the contract.
Admitedly, he obtained possession under the power-of attorney executed
by the respondent in his favour and there was nothing on the record to
show that the character of his possession ever changed as a result of the
contract of sale.
311

23. Proof of possession is mandatory.--
In order to avail protection under Section 53A the proof of possession is
mandatory.
312

24. Taken possession.--
The section is limited to cases where the transferee has taken possession under a
contract to transfer immovable property. In order that this section may apply,
there must have been
(1) an agreement, in writing and signed to transfer property, and
(2) possession of the property must have been delivered to the
transferee in part-performance of that agreement.
If these conditions are not satisfied, the section can have no application. Where
there is nothing in the contract to show that the defendant could have been put
in possession under the contract itself, and that he was continuing in possession
in part-performance of the contract, and it appears that his possession was that
of a trespasser, it cannot be said that the possession of the defendant was in
pursuance of the contract for transfer.
313

Where the vendor is a part owner of joint and undivided property, recital
describing that possession is given would only mean that the vendee is allowed to
share common enjoyment of the property along with the vendor.
314

Where a mortgagor delivers possession of the mortgaged property to the
mortgagee in satisfaction of his debt, not under the mortgage but under an oral
agreement,and subsequently sells the property, the mortgagee cannot resist
the claim for possession in a suit by the vendee, by relying on this section, as
both the above conditions are absent.
315
So also, where a mortgage gives the
mortgagee only a right to foreclose and the mortgagor delivers possession to the
mortgagee in satisfaction of his debt, the possession taken by the mortgagee is
not in part-performance of the contract of mortgage, for the mortgage, did not
give him the right to possession until default and foreclosure through a
Court.
315
A mortgagee can take advantage of this section only when he obtains
possession under or because of the transfer by way of mortgage, and not
otherwise.
316

A mere contract to sell does not create any interest in immovable property.
Before the aid of the section can be invoked, there must be an intention
totransfer property by the transaction.
317
Where there is an instrument
of transfer, though it is not duly completed, e.g., by registration, that
instrument oftransfer is a contract in writing within the meaning of this section.
When the defendant is in possession, actual or constructive of property, under
such a contract, and the plaintiff has received the consideration, the section
would apply and the defendant would be entitled to protect his possession under
it.
318

If the transferee has not taken possession, the section does not apply.
319
In the
above noted case, the Federal Court ruled that the section clearly requires that
transferee had either to be put into possession or had to continue in possession
in part-performance of the agreement, which was sought to be enforced under
the section. Where the transferee has not even constructive possession but he
files a suit for recovery of possession, the section has no application.
Where the defendant is not in possession in pursuance of the contract and is not
willing to perform his part of the contract, he cannot get the benefit of Section
53-A.
320

When a person is inducted into possession for the first time subsequent to the
contract touching the property, it may be decisive of the plea of part-
performance. But possession would be of no avail when the person was already
in possession prior to the contract.
321
Though possession may be obtained
subsequent to agreement of sale, it must be referable or pursuant to the
agreement to invoke Section 53-A. Possession obtained subsequent to the
agreement and not referable to it is not an act of part-performance.
322

It is made to prevent the owner of land from recovering possession, if, on the
basis of any agreement of sale and in pursuance thereof, the purchaser has
performed his part and is in possession of the same and it does not confer title on
defendant as it is purely an equitable remedy.
323

Mere possession of plaintiff of the suit property on the date of suit cannot be
taken to enable him to obtain injunction from the court.
324

The mere retention of earlier possession as tenant would not be sufficient, but
there has to be some evidence to establish that the retention of possession was
as a result of part-performance of the agreement to sell.
325

25. Property or any part thereof.--
There is no mention of any property for a transferee being already in
possession, and as such the words property or any part thereof, occurring
before the words or the transferee being already in possession, continues in
possession in the second part of the section, shall have to be taken into
consideration for such transferee also for giving full effect to the said part of the
section.
326
The contention might have some force in the case the words of
the property would have been used after the words transferee, being already in
possession in the second part of the section. The absence of such words clearly
indicates that the property or any part thereof applies in relation to a transferee
being already in possession and who continues to remain in possession after
thetransfer.
327

When flats are delivered to individual persons by promoter, it cannot be said that
persons were put in possession of open plot of land. So too it cannot be said that
in respect of the open plot of land, the principle of part-performance incorporated
in Section 53-A of Transfer of Property Act will apply infavour of the
persons.
328

26. The transferee, being already in possession, continues in possession in
part-performance of the contract.--
The phrase lays down as alternative case. The section requires that the
transferee, in part-performance of the contract must
(a) either have taken possession of the property, or any part thereof; or
(b) the transferee, being already in possession, must have continued in
possession.
The second case provides for cases where the transferee was already in
possession. In this case he must continue in possession in part-performance of
the contract, and not otherwise. If the transferee continues in possession under
any other title, or agreement or arrangement, the section can have no
application.
329

If the subsequent possession is not referable to the agreement nor pleaded the
defence under this section will not be available.
330
Even assuming that the tenant
is entitled to the benefit of Section 53-A, his liability to pay rent does not cease
unless the agreement of sale put an end to that liability in specific terms.
331

27. Subsequent transferee can retain benefits of transfer.--
A subsequent transferee can retain the benefit of his transfer by purchase which
prima facie, he has no right to get, only after satisfying the two conditions
concurrently viz. (1) he must have paid the full value for which he purchased
the property, and (2) he must have paid it in good faith and without notice of
the prior contract.
332

28. And has done some act in furtherance of the contract.--
The connective and signifies that mere taking of possession, or continuance of
possession, in part-performance of the contract, is not sufficient to attract the
application of the section, unless the transferee has further done some act in
furtherance of the contract of transfer. The phrase in furtherance of the
contract points to the fact that some act must have been done in furtherance of
the contract.
333

Mere recital in the sale-deed is hardly indicative of the change in the nature of
possession. Mere possession ceases to be of assistance when the person claiming
the benefit of part-performance is already in possession and continues in
possession. Therefore, if the mortgage with possession is not discharged, it can
hardly be said to be and act in part-performance unequivocally referable, to a
contract of sale. Mere oral agreement to discharge a mortgage can hardly be said
to be act of part-performance.
334

Appropriation of mortgage money as sale consideration constitutes an act in
furtherance of the sale contract.
335

Where a mortgaged property has been agreed to be sold to mortgagee for the
mortgage amount and the amount has been appropriated as sale consideration
the act of appropriation would be an act in furtherance of the contract of sale.
336

29. In furtherance of the contract meaning explained.--
An act in furtherance of the contract has to be an act to have progress in the
matter of performance of contract. The construction of compound walls which
was for the protection of the property will not be an act in furtherance of the
contract.
337

30. The transferee has performed or is willing to perform his part of the
contract.--
The words mean complete performance or complete willingness, and not
performance or willingness in part.
338
The section confers no right on a transferee
who has not performed or is not willing to perform, his part of the contract.
339
In
the written statement, the defendant never pleaded that he had performed or
was willing to perform his part of the contract. Unless this was pleaded, the
provisions of Section 53A of the Act were not attracted. Admittedly, the
defendant never filed any suit for the specific performance of the agreement on
the basis of the agreement for sale. Under the circumstances, the amount of Rs.
1,250 paid as earnest money will stand forfeited.
340
The condition as to
willingness to perform his part of the contract must subsist up to the date of the
hearing of the matter, even up to the date of hearing of the second
appeal.
341
Willingness in the context of Section 53-A must be absolute and
unconditional.
342

The transferee, who has taken possession in part-performance of the contract
cannot resist dispossession, if he is not willing to perform his part of the contract,
e.g., to pay the price agreed upon.
343
The term willingness used in
Section 53A would mean only readiness and willingness used in Section 16 of
the Specific Relief Act.
344

A person, who falsely pleads that he has paid full consideration for
the transfer but is found not to have paid a part of the consideration, cannot get
the benefit of the section.
345

Where a person was already in possession in pursuance of an agreement of sale
and price was to be paid in instalments and the person has already paid some
instalments and is ready to perform his part of the contract the delayed payment
of some instalments, accepted by the vendors, would not deprive him of the
benefit of Section 53A.
346

According to the case of the plaintiff, the time was made essence of the contract
by virtue of notice P-2 whereas according to the defendant after the receipt of
the said notice P-2, by virtue of the oral agreement, the time was extended and
therefore it was so mentioned in their notice D-1 dated 1st of June, 1977 and the
sale deed was to be executed on 14th June, 1977. Because of the agreement
between the parties, the plaintiff did go to the Tehsil premises for that purpose
on 14th June, 1977 but because of unvoidable circumstances, the sale deed could
not be executed and registered as the whole staff was away on account of
elections. The plaintiff taking the advantage of that situation filed the present suit
on that very day. In the plaint, the plaintiff has nowhere pleaded that time was
the essence, of the contract, and in the absence of any such plea no evidence
could be led and the plaintiff could not be allowed to make out a case at a later
stage without amending the plaint that time was the essence of the contract.
Taking into consideration all the facts and circumstances of the case, the
defendants were held to be entitled to protect their possession in view of the
provisions of Section 53A of the Transfer of Property Act, as they have
specifically pleaded in the written statement that they are willing even now to
perform their part of the contract.
347

31. Notwithstanding that the contract, though required to be registered, has
not been registered.--
These words supersede the provisions of the Registration Act, and let
in transfers, e.g. agreements of lease creating a present demise, though not
registered.
By virtue of the proviso added to Section 49 of the Registration Act such
unregistered documents are admissible as evidence of part-performance.
The true test to apply to a transaction, in order to decide whether it comes within
the purview of Section 17(1)(b) is,(a) whether it speaks for the present, and
(b) whether, it itself, by reason of its own force, creates the title claimed. If the
transaction is intended to be the evidence of the agreement mentioned therein,
and, with that end in view, it is reduced to a formal document, it implies a
declaration of will embodied in the document, and, as such, it has the effect of
declaring the title mentioned therein within the meaning of Section 17(1)(b). In
such a case, neither the doctrine of part performance, nor the rule of equitable
estoppel can override the mandatory provisions of Section 17(1)(b), except in a
case covered by the proviso to Section 49,
348
that is, an unregistered document,
affecting immovable property and required by the Registration Act or
the Transfer of Property Act to be registered can be received as evidence of
part-performance of a contract for the purpose of this section.
349

An instrument of lease for 10 years is hit by Section 107 of
the Transfer of Property Act, if it is unregistered, and is also within the
mischief of Section 49 read with Section 17(1)(d) of the Registration Act. It
cannot be a valid document of lease and no leasehold right can be claimed under
it, but if the case falls under this section, neither Section 107 of this Act nor
Section 49 of the Registration Act can stand in the way, and the application of
this section assumes paramount importance. It will become necessary to see,
whether, from the writing, the necessary or essential terms of
intended lease can be found with reasonable certainty, or, in other words, the
writing contains all, or the whole, of the essential terms, and whether all the
essential conditions for the application of this section are satisfied.
350

32. Or where there is an instrument of transfer.--
The word or shows that the case of an instrument of transfer is put in the
alternative. The proviso to Section 49 of the Registration Act, which enacts that
an unregistered document affecting immovable property may be received as
evidence of part-performance of a contract for the purposes of this section,
shows that the section applies, although there is not a distinct and separate
contract in writing. The instrument itself is treated as a contract in writing.
351
But
the instrument must not be invalid. If a lease is executed by a municipality in
breach of the mode prescribed by Act, there is no valid and binding
instrument.
352

33. The transfer had not been completed in the manner prescribed therefor by
the law for the time being in force.--
(a) General.
The words not completed in the manner prescribed by law have the
effect of superseding the provision both of this Act and of the
Registration Act as to attestation and registration. It may seem doubtful
whether the section would not apply, if the instrument and the terms of
the transfer could not be proved for any other reason, as for example, if
the original was unstamped and lost, so that secondary evidence is
inadmissible. In Hiralal v. Shankar,
353
the agreement to sell was reduced to
writing on a plain paper. The plaintiff was put in possession of the lands.
Neither the incomplete instrument oftransfer nor the agreement itself
was brought on record. It was held, that as the agreement had been
partly performed by placing the plaintiff in possession of a part of
the property agreed to be conveyed, the plaintiff was entitled to call upon
the defendants to execute a deed of sale, but that, as the written
agreement of sale was not on a stamped paper it was not open to the
plaintiff to adduce secondary evidence of it, even upon payment of
penalty, as it had been lost, and it was not possible for the Collector to
charge the penalty and write an endorsement, upon which alone the
unstamped document could be read in evidence.
354
It is obvious that
where the terms of the transfer cannot be ascertained with reasonable
certainty, the section cannot avail.
It seems that all that is necessary, otherwise to invoke the provisions of
this section is to consider whether the transferee, who was not in
possession prior to the transfer in question, was inducted upon the land
in pursuance of the transfer in question. The section only requiresall
other conditions being satisfiedthat the transferee, not being in
possession, has to take possession of the property in part-performance
of the contract.
The words the transfer has not been completed in the manner prescribed
therefor by the law for the time being in force are sufficient to cover the
case of a lease. If a lease is executed by the lessor alone, it is an
instrument of transfer, not completed in the manner prescribed therefor
within the meaning of this section. In Maneklal v. Hormusji,
355
the
Supreme Court observed :
a formal lease is not necessary to attract the application of
Section 53A, Transfer of Property Act. All that is required is that
an agreement in writing signed by the transferor can be gathered
from the evidence.
It seems that a patta, executed by the lessor alone, cannot have less
force, and, in such case, the defendant is entitled to invoke the provisions
of this section. If an instrument does not constitute a validly
executed transfers, but the defendant is put into possession, although
the instrument of transferdoes not operate to transfer to the defendant
any right, the defendant would obtain the benefit of the section. The
principle is clear that if a lease is executed by the lessor alone and the
lessee is put in possession, the latter can invoke to his aid the doctrine of
part-performance under this section, subject to the interpretation and
application of the proviso to the section.
356

But where the natural guardian enters into an agreement on behalf of the
minor without the permission of the Court required under the Hindu
Minority and Guardianship Act, it is unenforceable in law and is only
voidable.
357

(b) Section applies if the contract of transfer is invalid for want of completion in
the prescribed manner.
There is a distinction between
(a) the contract of transfer or the instrument of transfer having
not been completed in the manner prescribed therefore by the law
for the time being in force; and
(b) the contract of transfer or the instrument of transfer, being
invalid or void on any other ground.
In the former case, the section is applicable. But in the latter case, the
section cannot be invoked in aid.
358

(c) Section does not apply, if the contract of transfer is void.
This admits of little doubt if the contract is void
359
or illegal.
360

(d) Agreements otherwise invalid.
If the agreement is invalid, nothing validates that which is invalid.
361
So,
for example, the following agreements cannot be validated under this
section :
(1) those which override the provisions of the Legal
Practitioners Act;
362

(2) those, in which the statute makes it imperative that certain
conditions must be fulfilled, but they are not fulfilled;
363

(3) those which are invalid under Section 6(a) of this Act;
364

(4) those which are required by law to be executed by all the
trustees, but which are executed by only some of them.
365

(e) The equity in Walsh v. Lonsdale and this section.
The rule in Walsh v. Lonsdale,
366
is that where the landlord agrees to let
land on lease, and the intended lessee goes into possession, and the
agreement is one which can be specifically performed, both the landlord
and the intended lessee, have, as between themselves, the same legal
rights and are subject to the same legal liabilities, as if a valid lease had
been granted in terms of the agreement, and, therefore, the landlord has
the same power of distress as he would have had if a proper lease had
been granted, and the tenant can only be evicted for such a breach of
covenant as would if a valid lease had been granted, have entitled the
landlord to re-enter. The equity depends not so much on part-
performance as on the fact that there is a valid contract between the
parties, which is still capable of being enforced by specific performance.
The rule in Walsh v. Lansdale is an instance of the equitable rule, that
what ought to have been done, in pursuance of a binding agreement,
istreated as actually accomplished, and a person who has an equitable
interest under an agreement of lease, if he is entitled to specific
performance in the same Court and at the same time when the
subsequent legal question falls to be determined, is treated as if the
equitable interest had been turned into the legal interest of a lessee. But
under the Indian Law there is no distinction between legal and equitable
interests. Thus, the right of a person entitled under an agreement
of lease is not an equitable interest but a personal right. And that
personal right cannot be converted into an interest in land without a
registered instrument. The application of the equity would contravene the
provisions both of this Act and of the Registration Act. The Privy Council
have pointed out that the person, entitled to seek his remedy consistently
with and not in violation of the Indian Law, should apply for a stay of the
ejectment suit and himself file a suit and to get executed an instrument in
writing, which he can get duly registered.
367
In Pir Buxs case, the Judicial
Committee observed :
The English doctrine of part-performance.... is not available in
India by way of defence to an action of ejectment (apart from the
subsequent statutory alteration of the law....). The fact that the
plaintiff has agreed to sell the land in question to the defendant is
not rendered an effective defence by reason of the plaintiff having
in part-performance of the agreement permitted the defendant to
take possession.
That an English equitable doctrine affecting the provisions of an
English statute relating to the right to sue upon a contract should
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 says can only be
created by means of a registered instrument appears.... in the
absence of some binding authority to that effect, to be impossible.
So said Lord Russel of Kill Owen at p. 101 of LR 58 I.A. and
proceeded to show that there was no such authority. The result is
that, under the law applicable to the present case, an averment of
possession following upon the contract, is not a relevant defence to
an action of ejectment in India. If the contract is still enforceable,
the defendant may found upon it to have the action stayed, and by
suing for specific performance obtain a title which will protect him
from ejectment. But if it is no longer enforceable, its part-
performance will not avail him to any effect.
In the present instance..., the defendants possession was not
even referable to the agreement of sale, but their Lordships do not
proceed upon that circumstance. Their ground of judgment is more
fundamental.... Section 53-A... whereby a defendant in an action of
ejectment may, in certain circumstances, effectively plead
possession, under an unregistered contract of sale in defence to
the action. Their Lordships views... must... be understood to be
referable to the state of the law before this partial importation into
India of the English equitable doctrine of part-performance.
The cases may be classified into
(1) those where an interest in the immovable property has been
created; and
(2) those in which an interest in the immovable property has not
been created.
The first class of cases rest on different considerations and the defendant
would have a proper remedy. In the second class of cases, the contract
may be oral, or in writing. The section will have no application to oral
contracts. Where the contract is in writing, the section may be applied to,
for example, an agreement of lease which does not create a present
demise; provided all the other conditions for the application of the section
are fulfilled. By the section
(1) the transferor is only debarred from enforcing any right in
respect of the property, other than a right expressly provided by
the terms of the contract; and
(2) the transferee cannot sue for any declaration of right on the
basis of part performance, although the performances gives right
to a statutory right of defence, which, but for the lack of some
formality, the party would have had under the written agreement.
The section does not give any right, which the informal agreement itself
would not give.
368
It gives a right merely to hold it as a shield.
34. Persons claiming under.--
The phrase persons claiming under refers to persons claiming under a title
derived subsequently to the date of the transfer and not anterior to that
date,
369
as assignees, or heirs or other legal representatives.
370
Whether a person
is or is not a person claiming under the transferee would depend upon the facts
and circumstances of each case. Thus, a reversioner under the Hindu Law may or
may not be a person claiming under a Hindu widow. So, where in a particular
case, the reversioner claims under the last male owner, it cannot be said that he
is a person claiming under her.
371
The test, in each case, is whether the acts of
the deceased widow, affecting the property, bind the reversioner or not. The
reversioners are bound by a contract of sale entered into by a Hindu widow for
legal necessity, as persons claiming under her, and the purchaser from her is
entitled to rely upon the provisions of this section, because the reversioners,
though they do not claim under her, are her successors-in-title of the estate after
the death of the widow.
372
If the acts of the widow bind the property, they must
bind the reversioner to the same extent and in the manner, as the acts of an
absolute owner bind her heirs. The reversioner is certainly not her heir, but he is
her successor, and is bound by her acts which she is authorised by law to do,
and to the extent he is so bound, he becomes a person claiming under her
within the meaning of this section.
373

A decree-holder, who has attached the property of the judgment-debtor in
execution of his decree, is a persons claiming under the judgment-debtor,
within the meaning of this section.
374

Where the transferor is the father and not his son, and the transfer is not
binding on the son, they cannot be said to be persons claiming under the
father.
375
So also, where a guardian contracts
to transfer immovable property belonging to a minor, the section cannot
operate to bar the claim of the minor, as the minor is neither a transferor nor a
persons claiming under the guardian.
376
A pre-emptor does not claim under the
transferee.
377
An auction-purchaser does not claim under the transferor, and the
transferee cannot use the shield of Section 53-A against him.
378
The successor-
in-interest of a lessor cannot be said to be a person claiming under a lessee
making an incomplete transfer of lease hold interest.
379

In Saila Bala Dasi v. Nirmala Sundri Dasi,
380
the Supreme Court held that the said
expression is wide enough to include all persons acquiring interest in
theproperty by any assignment or creation or devolution of interest within the
meaning of Order XXII, Rule 10 of the Code of Civil Procedure. That as a result of
an auction-purchase, the interest of the judgment-debtor devolves on the
auction-purchaser is beyond any doubt and as pointed out by the Supreme Court
in Ahmedabad Municipal Corporation v. Hazi Abdul Gafar,
381
it is axiomatic that
the purchaser at auction sale takes the property subject to all the defects of
title of the judgment-debtor. It may be that such a devolution of interest is not
voluntary or by act of parties but is by operation of law, but devolution of
interest as a result of death or insolvency is also a devolution by operation of law
and as such there neither is nor can be any justification for restricting the
expression devolution etc., in Order XXII, Rule 10 to devolution by operation of
law.
382
The Sikkim High Court in Tshering Wongdi Bhutia v. Sonam Pintso,
383
held
that whether a judgment-debtor or an attaching creditor steps or stands in the
shoes of the judgment-debtor or not, he cannot obviously get a footwear or
footing in any way larger or better than that of the judgment-debtor, cannot have
any right or interest higher than the judgment-debtor and cannot do anything
which the judgment-debtor could not do, in respect of the property attached. If
the attaching creditor can put to auction and/or purchase therein only the right
and interest of the judgment-debtor in respect of the property attached subject
to all the defects and disabilities of the judgment-debtor, he cannot obviously
enforce by way of attachment any claim in respect of the attached property, if
the judgment-debtor has agreed to sell the same or has attempted to sell the
same by an unregistered sale-deed and the proposed transferee has paid the full
consideration for the transfer and has taken possession thereof before the
attachment, as the judgment-debtor himself could not do so in view of the
provisions of Section 53-A.
35. Expressions sword and shield.--
The expressions sword and shield have been very often used in respect of the
rights of a proposed transferee claiming part-performance of the contract
totransfer and it has too often been said that he can use his rights only as
shield and not as sword. And from this an impression has grown that such a
person figure in curial arena only as a defendant or an opposite party to defend
or protect his rights, but not as a plaintiff or a petitioner to enforce his rights. The
impression is erroneous.
384
Doubtless, the right conveyed under the section can
be relied upon only as a shield not as a sword, but the protection is available to
the transferee both as a plaintiff and as a defendant so long as he uses it as a
shield.
385
The Sikkim High Court in Tshering Wongdi Bhutia v. Sonam
Pintso,
386
held that these imageries of sword and shield give rise to a good deal
of misunderstanding : sword is not always a weapon of offence or attack but
may also be used as a weapon of defence or protection. It is also not correct to
say that in a Civil Court it is the plaintiff who is the aggressor and has attacked or
is trying to attack the defendant and has, therefore, used a sword and it is the
defendant who only seeks to protect himself against such aggression and attack
and, therefore, has used shield only. More often than not a plaintiff comes to the
Court for the protection of his rights and not for enforcement, unless, as every
protection of right involves, in some way or other, an enforcement of that
right.
387

Section 53-A does confer some right on the transferee if the conditions of that
section are fully satisfied. This is a right to have the transferor or any person
claiming under him debarred from enforcing against a transferee and persons
claiming under him any right in respect of the property of which the transferee
has taken or continued in possession. This right can be enforced by the
transferee always as a shield and not as an independent claim either in the
capacity of plaintiff or defendant. That is to say, he cannot ask for title basing his
claim on the fact that he has fulfilled the conditions of Section 53A. He can as a
shield ask for protection of the right envisaged by Section 53A by debarring and
by getting an injunction against the transferor and those claiming under him from
interfering with his possession.
388
If the transferee who has fulfilled the conditions
of Section 53-A can rely on the agreement of sale in his favour as a shield in a
suit for eviction and can even ask for injunction to protect his possession as
against the transferor there is no reason why he should not rely on the
agreement of sale in similar circumstances as a shield against the landlord.
389

36. Shall be debarred from enforcing, etc.--
The section confers on the transferee the right to plead in defence that the
transferor or any person claiming under him, is debarred from enforcing against
him, any right in respect of the property of which the transferee has taken
possession, or continued in possession other than a right expressly provided by
the terms of the contract. The right conferred by this section is one available only
to the transferee, or person claiming under him, to protect his possession.
390
The
section can be used only as a shield and not as a weapon of attack.
391

The transferees right under this section arises only on the transferor, or his
representative, seeking to enforce any rights in respect of the property. When
the transferor seeks to enforce his right against the property, taking advantage
of the incompleteness of the transfer, the transferee must be in a position to
defeat his attempt by invoking the aid of the section, which will be an effective
defence, provided that
(a) the proceedings are legal proceedings; and
(b) the defence is to be raised in the very proceedings in which the
transferees rights are sought to be interfered with.
But the section does not debar the transferor from enforcing rights, expressly
provided by the terms of the contract. It debars the transferor from exercising
rights which he would have apart from the agreement.
392

The transferee can take the benefit of Section 53A even though his right to sue
for specific performance has become time-barred.
393

37. Any right in respect of the property.--
The provisions of this section
(a) do not confer any title on the transferee,
(b) can be used in defence only and not for attack;
(c) they can be used in defence by the transferee only against the
transferor, or persons claiming under him.
And they operate to debar the transferor, or any person claiming under him, from
enforcing against the transferee, or persons claiming under him, any right in
respect of the property of which the transferee has taken or continued
possession, other than a right expressly provided by the term of the contract.
Though the part-performance may not have created any title in the transferee
the transferor can enforce no right in respect of the property on the ground that
thetransfer has not been completed in the manner prescribed therefor by the
law for the time being in force. The equitable basis of the doctrine is that having
transferred the property, having taken his money, and having put him in
possession, the transferor is not heard to sayin an action filed by him, that
thetransfer is unenforceable.
394

38. Property subject to contract acquired compulsorily rights of the owner.--
Where subsequent to a contract of sale the property has been delivered in part
performance thereof but is subsequently compulsorily acquired, the owner would
be entitled to the balance of the sole consideration out of the compensation and
not the whole of it.
395

39. Other than a right expressly provided by the terms of the contract.--
The section, by enacting that the transferor shall be debarred from enforcing
against the transferee any right in respect of the property other than a right
expressly provided by the terms of the contract, impliedly sanctions the
enforcement of all rights which have been so provided. If the transferor is to be
held to his bargain with the transferee in respect of the property, it is but just
that he should be allowed to enforce his contractual right against the latter in
respect of it. Whether it be termed as the conferment of a right, or the saving of
an existing right, in any case, it enables the transferor to enforce his contractual
rights against the transferee in respect of the property. The conditions,
mentioned in the section, cannot be conditions precedent to the enforcement of
the transferors right. They are conditions precedent, merely for the imposition of
the bar against the transferor, and consequently conditions precedent to the
accrual of the transferees right to protect his possession. All that is essential is,
that if the transferor wants to enforce against the transferee any right in respect
of the property which has been expressly provided by the contract, he must
have previously put the transferee in possession of the property in part-
performance of the contract.
396

In an agreement of lease, which cannot be received in evidence for want of
registration the lessee cannot resist a demand for rent. If he does so, he would
become disentitled to the benefit of the section on the ground that he is not
willing to perform his part of the contract. In Ram Protap v. National Petroleum
Co.,
397
the Court held :
(1) The section by plain implication enables the transferor to enforce a
right expressly provided by the terms of the contract.
(2) The fulfilment of all the conditions precedent mentioned in the section
are not conditions precedent to the enforcement of such right.
(3) The unregistered document is admissible in evidence in a suit to
enforce this right of the transferor.
Where the defendant continues in possession as lessee in part-performance of
the contract of lease, and he pays rent in furtherance of the contract, the
plaintiff is entitled to enforce the terms of the lease. And if, under the terms of
the lease, the plaintiff is entitled to re-enter, if there is default in payment of
rent, then on the determination of the lease, on such default, the defendant is
bound to quit and give vacant possession to the plaintiff.
398

40. Proviso.--
(a) General.
The proviso carves out an exception to the general rule enacted in the
section. It enacts that the section shall not affect the rights of a
transferee, if
(a) he is a transferee for consideration; and
(b) he has no notice
(i) either of the contract, or
(ii) of the part-performance thereof.
It saves any rights, which the transferee, under the unregistered contract,
or transfer, which has not been completed in the manner prescribed
therefor by the law for the time being in force, may have, on the strength
of part-performance of the contract, against the transferor, from being
enforced against a subsequent transferee for consideration, who has no
notice either of the contract or of the part-performance thereof. Where the
transferee has paid consideration and been put in possession of property,
he can resist claim for possession of property,
399
if the other conditions of
the section are fulfilled. The meaning of the proviso is that the right of the
transferee to hold the transferor to the terms of the transfer is not a title
or a right in rem. It is a personal and an equitable right and is available
against the transferor and all those who claim under him except a
transferee for considerations without notice.
400
In the under noted case
where the plaintiff claimed possession of the property, under a good and
genuine contract of sale earlier in date to the defendants contract, and
the defendant was not a transferee for value who had paid money in good
faith, but all that he had got was a contract of sale and not a sale, with
knowledge of the plaintiffs earlier title, it was held, that the section had no
application.
401

(b) Proviso protects only a bona fide transfe ree for value.
The proviso protects a transferee for consideration, who takes
the transfer without notice of the contract or of its part-
performance.
401
If a transferee fails to have the transfer registered, or
get it completed in the manner prescribed therefor by the law for the time
being in force, he will have to deliver up possession of the property to a
bona fide transferee for value who had no notice of the transaction.
402

(c) Onus rests primarily on person claiming benefit of the section.
It is for the person, claiming the benefit of the doctrine of part-
performance, to allege and prove that the subsequent transferee, who
otherwise has a legal title, had notice of the contract or of the part-
performance thereof.
403

The question, whether the subsequent transferee had such notice, is one
of fact and has to be decided on all the facts and circumstances of the
case. The mere fact of continuance of possession is not enough to charge
subsequent transferee with notice of the contract to sell. If the character
of the possession changes from that of a tenant to that of a vendee in
part-performance of the contract, it must be proved that the subsequent
transferee had notice thereof.
404

Where the transferee is in possession, the subsequent purchaser will be
deemed to have notice by virtue of Explanation II to Section 3.
405

(d) What has to be proved? By whom?
Whenever a claim is raised for protection under this section, the claimant
has first to establish all the elements required on his part, for attracting
the main part of the section, as distinguished from its proviso, and it is
only when these are established, and the claimant thus, prima facie,
establishes his claim under the section, that the said claim may be
defeated by his adversary by showing that he was a transferee for value
without notice of the claimants claim, or agreement, or the part-
performance thereof; and is, as such, entitled to the benefit of the proviso
to the section. The purpose of the proviso merely is to defeat a claim
which would, otherwise, have succeeded under the main part of the
section. The question of the proviso does not arise until and unless the
claimant has substantiated his claim under the main part of the
section.
406
In other words, where, in a suit for eviction of the defendant,
the latter relies upon this section in defence, the plaintiff must allege and
prove, that defendant could not invoke the protection of the section,
because the plaintiff had no notice of the contract or of the part-
performance of the contract. If the defendant was in actual possession by
virtue of the alleged transfer, and the question of actual notice of the
contract was not pleaded by either party, the plaintiff must be deemed to
have notice of the defendants title.
407

41. Transferee guilty of laches.--
The main part of the section enacts that before the transferee can invoke the aid
of the section, he must show that he had performed or was willing to perform his
part of the contract. The proviso to the section only saves the rights of a bona
fide purchaser for value of the property for consideration. It does not enlarge
the content of the defence of equity in favour of the prior transferee. If the
subsequent transferee is a bona fide transferee for consideration, the prior
transferee cannot rely upon this section. If title has passed to the subsequent
transferee, despite his knowledge of the earlier contract, the prior transferee can
non-suit him only if all the essential conditions laid down in the section have been
complied with. Prima facie, the title passes to the subsequent purchaser, though
the transfer can be avoided by the prior transferee. If the prior transferee has
been guilty of laches either in abandoning the suit contract, or not being ready
and willing to perform his part of the contract, he cannot obtain the protection
under the section.
408

42. Essential facts to be stated in pleadings.--
A party relying on the section must state in his pleading all the essential facts
requisite to invoke the aid of the section.
409
Thus, he should plead his readiness
and willingness to perform his part of the contract.
410
The section does not
provide to mention specifically the section in the written statement. The
protection would be available if the defendant have stated all the ingredients and
facts necessary for the purpose of the section.
411
In the under noted case,
however, the Mysore High Court allowed the defendant to rely on this section
although he had notspecifically taken a plea to that effect.
412
Where the doctrine
of part performance is not pleaded in the written statement, it cannot be raised
for the first time in second appeal.
413
In the absence of a specific plea raised in
the written statement that the defendant was entitled to protection under
Section 53A of the Transfer of Property Act, the Lower Appellate Court was
held not justified in applying the provision of the said section. Without such a
plea being raised, to allow such a plea to be raised for the first time in appeal is
certainly providing a handicap to the other party in the litigation.
414
Where the
specific plea of Section 53A of the Transfer of Property Act was not raised in
the written statement, but it was clearly mentioned in the written statement that
on account of accepting the further consideration towards the right of redemption
the mortgage transaction was put to an end and the defendant continued as
owner from the date, it was held that the facts are sufficient to constitute the
plea of Section 53A of the Act, and also that it cannot be said that the plea of
Section 53-A has been specifically raised in written statement.
415

Where in a suit for recovery of rent the defendant pleaded that he was not a
tenant and that he had requested the plaintiff to get a sale-deed executed in his
name by advancing an amount and the plaintiff executed an agreement to re-
convey by virtue of which he was the owner; it was held that this did not amount
to a plea of part-performance.
416

43. New plea not allowed to be raised at a late stage.--
A defence under this section involves questions of fact and consequently the
party wishing to set up such a defence ought to lay the requisite foundation for it
in his pleadings as well as in his evidence.
417
It is not necessary that the party
should specifically mention the section in his pleading.
418
The protection would be
available even where the party has stated all the ingredients and material facts
necessary for his defence under this section.
419
A defence under this section
cannot be allowed to be raised for the first time in the second appeal because it
raises question of fact which should have been put in issue at the trial.
420

The plea of past performance not taken in written statement cannot be allowed to
be raised in appeal.
421

The plea of past performance of the contract cannot be taken for the first time in
second appeal.
422

44. Supplementary legislation.--
(a) General.
The section was reinforced by further Legislation by
(1) insertion of a new Section 27-A in the Specific Relief Act, 1877
(repealed by the Act of 1963);and
(2) the amendment of Section 49 of the Registration Act.
The substantial object of this section is to protect rights acquired under
written contracts which have been partly performed. It can hardly be said,
therefore, that the intention of the Legislature was to make a written
contract, e.g., of a lease of a compulsorily registrable character,
enforceable proprio vigore. It is. however, true that if a plaintiff is in
possession under a lease, which is otherwise inadmissible for want of
registration, he may put the lease, in evidence, if he sues upon it for
specific performance, treating it as a contract, or a defendant may put it
in evidence to show the character and nature of his
possession.
423
According to Section 53A for the purpose of attracting the
doctrine of part-performance the only defect permissible is one of
registration. An unregistered sale-deed which has otherwise been
completed, or any agreement of sale in writing would be the requisite
material. An unregistered sale-deed can be used for the purpose
permissible under the proviso to Section 49 of the Registration Act so as
to establish part-performance under Section 53A of
the Transfer of Property Act.
424

(b) Section 49, Registration Act.
The amended section runs as follows :
49. Effect of non-registration of document required to be
registered.No document required by Section 17 or by any
provision of the Transferof Property Act, 1882, to be registered
shall
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting
such property or conferring such power, unless it has been
registered :
Provided that an unregistered document affecting
immovable property and required by this Actor
the Transfer of Property Act, 1882, to be
registered may be received as evidence of a contract
in a suit for specific performance under Chapter II of
the Specific Relief Act, 1877,
425
or as evidence of
part-performance of a contract for the purposes of
Section 53A of the Transfer ofProperty Act, 1882,
or as evidence of any collateral transaction not
required to be affected by registered instrument.
In view of a specific provision in the Transfer of Property Act excluding
agricultural leases from the operation of the Act and the Tenancy Act of
the State having provided for execution of the lease with does not contain
any provision like Section 107 of the Transfer of Property Act, the
principles of Section 107cannot be extended to it.
426

The amendments are shown in italics. The amendment in the first
paragraph settles a doubt and lays down that the section applies not only
to documents compulsorily registrable under Section 17 of the
Registration Act but also to documents if the registration is required by
the Transfer ofProperty Act. The proviso has an important bearing on
this section. It makes it clear that Section 49 does not prevent an
unregistered instrument being admitted in evidence as a
contract.
427
Section 49 enacts that in a suit for specific performance, an
unregistered document affecting immovableproperty may be received as
evidence of a contract. But with respect to part performance, the section
enacts that an unregistered document may be used as evidence of part-
performance of a contract for the purposes of this section. The section
lays down that the deed is available not only as a contract but as evidence
that the acts done are in part-performance of the contract. But a
document, unregistered for fraud on registration, cannot be referred to
invoke the aid of this section.
428
This section, however, has no application
to the admission of secondary evidence. It talks only of the admission of
an instrument and does not apply to copies of instruments chargeable
with stamp duty.
429

Sale deed must be registered.For enjoying the benefits of part
performance under Section 53A of the Act the registration of sale deed
would be mandatory.
430

45. Limitation.--
The law of limitation does not apply to defences. A defence raised under this
section is not subject to any rule of limitation. The statutory protection granted
under Section 53A to a transferee in possession to continue his possession under
an unregistered contract or instrument of transfer is not lost by lapse of time to
file suit for specific performance of contract for acquiring title if he satisfies the
essential requirements of Section 53A and it is not incumbent upon him to file
such a suit within time to protect his possession after lapse of time.
431

46. Time when essence of the contract.--
It is settled law that the fixation of the period within which the contract has to be
performed does not make the stipulation as to time the essence of the contract.
When a contract relates to sale of immovable property it will normally be
presumed that the time is not the essence of the contract. The intention to treat
time as the essence of the contract may be evidenced by circumstances which
are sufficiently strong to displace the normal presumption that in a contract of
sale of land stipulation as to time is not the essence of the contract.
432
Where the
language used in the agreement cannot indicate in unmistakable terms that the
time is of the essence of the contract, the intention to treat time as the essence
of the contract may be evidenced by circumstances, which should be sufficiently
strong to displace the normal presumption that in a contract of sale of land
stipulation as to time is not the essence of the contract.
433

47. Presumption against time being essence of contract.--
It is well settled principle that in case of sale of immovable property, time is
never regarded as essence of contract. There is presumption against the time
being the essence of contract.
434

48. Readiness and willingness to perform.--
When the first defendant claims that he is entitled to have renewal, the readiness
and willingness should be in terms of agreement already executed by it.
435

49. Pre-emption.--
The right of pre-emption becomes enforceable only when there is a sale, which
creates a right, attached to the property and on that footing alone it can be
enforced against purchaser.
436

_____________________________
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169. Ram Gopal v. Additional Custodian, AIR 1966 SC 1438 : (1966) 2 SCJ 782; P.N. Rupji v. Shri Kondh
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Ginwalla & Sons, AIR 1950 SC 1 : 1950 SCR 75 : see also Mohan Lal v. Mira Abdul Gaffor, AIR 1996 SC 910;
Patel Natwarlal Rupji v. Shri Kondh Group Kheti Vishayak Mandli, AIR 1996 SC 1088 : 1996 (2) 37 (2) Guj
LR 189; Delhi Motor Co. v. V.A. Basrukar, 1968 (2) SCR 720, Sardar Govindrao Mahadek v. Devi Sahai,
1982 (1) SCC 237 : AIR 1996 SC 1088 : (Technicians Studio Pvt. Ltd. v. Lila Ghosh, 1978 (1) SCR 516
referred to).
170. Abdul Rehman v. Rusla, (1998) 1 Sim LJ 819 (HP).
171. Nigamananda Patra v. Sarat Chandra Patra, AIR 1998 Ori 19.
172. AIR 1940 PC 1.
173. Amrao Singh v. Sanatam Dharam Sabha (Regd.) Chandigarh, AIR 1985 Punj 195.
174. AIR 1964 Raj 11, Padmalabha Panda v. Appalanarasamma, AIR 1952 Ori 143.
175. AIR 1939 A11 611.
176. AIR 1957 AP 854.
177. Tankan Lal v. Zila Parishad, 1971 All WR 528 (531) (All); Ram Chander v. Maharaj Kunwar, AIR 1939
All 611; Yengu Achayya v. Emaki Venkata Subba Rao, AIR 1957 AP 854; Yashwantrao Martandrao Mukane v.
Khushal K. Bhatia, (1986) 1 Bom CR 533.
178. Yakkati Kavakamma v. Mowa Sambasiva Rao, (1984) 1 AP U 229 (AP).
179. Yashwantrao Markandrao Mukane v. Khushal K. Bhatia, (1986) 1 Bom CR 533; see also Savarkundia
Nagarpalika v. Maningar Nivas Nirman Sahkari Mandi Ltd., AIR 1981 Guj 243.
180. Krishnamoorthy Koundar v. Paramasiva Koundar, AIR 1981 Mad 310.
181. Chitan Das v. Murli Dalai, AIR 1971 Orissa 41 (43, 44) : 36 Cut LT 613.
182. Shanker Lal v. Mool Chand, 1998 AIHC 2461 (Raj).
183. Tshering Wongdi Bhutia v. Sonam Pinto, AIR 1981 Sikkim 1.
184. AIR 1921 Bom 401 : ILR 45 Bom 1170 : 62 IC 637.
185. Pakkirichi Munna v. Kalandan, AIR 1954 Mad 702 : (1954) 1 ML J 588 : 67 LW 265.
186. U.N. Sharma v. Puttegowda, AIR 1986 Kant 99; see also Krishnamoorthy Koundar v. Paramasiva
Koundar, AIR 1981 Mad 310.
187. 1983 All LJ 405.