There are some instances while performing a contract for sale. The doctrine of part performance deals with the provision where one party has performed his part of the contract and the other party breaches the contract. This is essential on the part of the transferee because he had already done his part of the contract and now wishes that the transferor also does the same.

Section 53A of the Transfer of Property Act, 1882 states when any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf and the transferee has in done a part performance of the contract by taking the possession or by doing any act in furtherance of the contract. Then the transferor is under a legal obligation to debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided in the terms of the contract.

The doctrine of part performance works on the principle of equity. The person who seeks equity must do equity to other persons. As per the section, a mere ground of absence of formality in the evidence or contract of such transfer cannot make a contract void.

E.g. X contracts with Y to sell his plot for A amount of money. X accepts the advance from Y towards the sale of the plot and hands over the possession of the said plot to Y. After some time, Y is ready to pay the remaining sale amount but X refuses to accept the same. Further, X asks Y to hand over the plot back to him. In such a case, Y can bring a case against X for specific performance.

As per Section 54 of the Transfer of Property Act, 1882, the transfer of immovable property valued over Rs. 100 has to be registered. But strict compliance of this rule will lead to problems. In such a situation, one party has already performed his part and the other party will breach the contract. In the same way, in the above-mentioned example, Y cannot be evicted from the plot just because the sale agreement was not registered.

Essentials of the doctrine of Part Performance

  1. There must be a valid contract between the transferor and the transferee. The transferor must have signed the contract. This doctrine will not apply to the void contracts or where there is no contract.
  2. There must be a consideration.
  3. The transferee must have taken the possession of the property or must have continued to be in possession, if already in possession.
  4. The transferee must have done some part in the furtherance of the contract.
  5. The transferee should be willing to perform the rest of the contract.

The section does not confer a title upon the transferee in possession but it imposes a statutory bar on the transferor. It tries to prevent fraud on the mere basis of ineffective evidence of the transfer. Even if the transfer is not complete in the manner prescribed or the contract has not been registered, the contract still becomes valid. It is a defence as well as right on the part of the transferee.

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