This article has been written by Aktha Choudhury during her internship with LeDroit India
Introduction – Transfer of property art -1887 sec- 53A which deals with part performance. The Doctrine of Part performance is applicable to only written & valid contract and must be signed by the transferor.
The doctrine of part performance based on principal of equality which was originated in English and later on subsequently added to the Transfer of property Act, 1882 via the Amendment Act of 1929.
Doctrine of part performance prevents a transferor from taking any advantage on account of non – registration of documents. According to registration Act 1908; whenever we purchase any property we need to do registration of that property- buyers and sellers both need to approach to the Registrar office or sub-registrar. After registration of the property, the recognition of the property will be revealed by everyone.
For Example :- A contract been made between A (transferor) and B (Transferee) paid the price for entering into the possession and is willing lo carry out his contract obligation.
Registration was left to be done, because the price of the property was not fully paid to the owner, so the transferor, seeks to evict B from the land.
In such situation ,doctrine of part performance operates and it provides that A cannot evict B from the land as B will not be allowed to suffer simply because formality of registration has not been compiled with. Doctrine of past performance peeps into humanity of society and don’t allow anyone to do injustice with others.
Basically doctrine of part performance section (53) A do not offer any title to anyone neither it de declares any thing only it safeguard the subsequent transferee. In one way we can say that ‘The Doctrine of part performance ‘shall not affect the rights of a subsequent transferee or consideration without notice of the earlier contract and of it’s being partly performed.
TRANSFER OF PROPERTY ACT,1882
A. By Act of parties (Voluntarily)
a.Testamentary (Indian succession act] (“WILL” made by one person)
b. In Vivos ( Transfer of property Act) (Done by two living Person)
B. By operation of law ( By court order)
Opposite of testamentary is Non-testamentary, if any person lending land to another person on ‘Mortgage’ where no ‘WILL’ is made.
MEANING :- Transfer of property Act means an act by which a living person conveys property in present or in future to one or more other living persons.
Living person –
- A company
- Body of Individuals
- whether (NGO or orphanage)
For example : Suppose a rich man who knew that he is suffering through a severe diseases and not going To live more. So before dying he will make a “WILL” also declares that after his death his entire property would be handed over to his children. After his death his ** WILL” can be executed but cannot be executed during his life time. Until and unless he has transferred his property in the form of a “Gift Deed” to his children during his life time.
Exceptions:-where ‘Transfer of property’ under(sec 6) cannot be made :
- The chance of their succession.
- A right of re-entry for breach of any condition.
Example -Lease Agreements Leaser reserves the right to re-enter his premises on breach of any condition by the lessee.
- An easement can’t be transferred [Easement means right over other’s property or right overs neighbor’s property, one can make stay demand on neighbors’ property construction because of that construction, you are not getting natural light, proper air]
- Right of religions office –
- Right of future maintenance can’t be transferred.
- A mere right to sue can’t be transferred.
- A public office nor the salary
- Stipends allowed to military, naval air force and civil pensioners of the government.
PERSONS EMPOWERED TO TRANSFER THE PROPERTY:-
● Person who is competent to contract
● Having ownership
● Can transfer the property. A minor cannot be transferee but can be a transferees. well, Trustee is a person who can hold the possession of a property but cannot be the owner of a property.
TRANSPER Of PROPERTY FOR THE BENEFIT OF AN UNBORN PERSON(SEC13):-
For Example :- Grandfather (G) has his two Sons (S1) and (S2). The grandfather wants to transfer his property to his Grandson who is unborn and not yet born (GS) for that he needs to transfer the property to living person either one person or two persons.
CHARACTERISTICS OF DOCTRINE OF PART PERFORMANCE:-
1 A written contract must be made on behalf of Transferor (owner of property) & transferee (Purchaser of the property) for transfer of an immovable property signed by or on behalf of the transferor.
2) Doctrine of part performance cannot be applied in absence of no agreement or void agreement.
3) Considerations should be accepted.
4) The contract must state the terms of the transfer with reasonable certainty.
5) According to the contract, the transferee must have taken the possession of the property or continued.
REMEDY OF PART PERFORMANCE :- Should be specific performance.
Difference between English & Indian Law of Part performance:-
In English law of part performances the contract need not to be written or signed by the transferor whereas in India law of of part performance section – 53 A deals with the doctrine & states that the contract has to be written as well as signed by the transferor.
Again in English law of part performance, right made under the doctrine is an equitable right and used for enforcing the right as well as defending the right and creates a title in the transferee. But on the other hand in Indian law of part performance the right is statutory sight and can only be used to defend the possession of the transferee & does not create title in the transferee.
Conclusion: – Thus the doctrine of part performance is an equitable doctrine. It is incorporated to prevent fraud from taking advantage on account of non-registration of the document. It is based on the doctrine : Equity looks at the intention rather than form.