Contract Drafting & Law Course Preview
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<p class="banner-heading-text-two-line"><span>Part Performance under Section 53-A of TOPA</span><br><span class="banner-sub-heading">Sale Deed</span></p>
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<p><span class="padded-dropcap">D</span><body class="c5 doc-content"><p class="c0"><span class="c2">octrine of part performance has been explained in Section 53-A of TOPA. It states that</span><span class="c7"> </span><span class="c2">when any person, by a written contract, agrees to transfer any immovable property for consideration, the contract must be signed by them or on their behalf. From the terms of the contract it must be necessary to constitute the transfer of the immovable property and can be ascertained with reasonable certainty.</span><span class="c7"> </span><span class="c2">And in part performance of the contract, the transferee has taken possession of the property (or any part thereof), or if the transferee is already in possession and continues in possession in part performance of the contract, and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform their part of the contract, then the provisions of Section 53-A follows.</span><span class="c7"> </span><span class="c2">Section 53-A provides that in such circumstances</span><span class="c7"> </span><span class="c2 c3">notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed by the law, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. Nothing in this Section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.</span></p><p class="c0"><span class="c3 c2">To invoke the protection of part performance, certain conditions must be met. First, there must be a written agreement for the transfer of property. This agreement must clearly set out the terms of the transaction, such as the description of the property, the price, and other necessary details, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. The agreement must also be signed by the seller or someone authorised to act on their behalf.</span></p><p class="c0"><span class="c2">Next, the buyer must demonstrate that they have acted in reliance on the agreement. This typically involves the buyer taking possession of the property or, if already in possession, continuing to hold it in </span><span class="c2">part performance</span><span class="c3 c2"> of the contract. Additionally, the buyer must have performed some action that indicates their intention to fulfill the agreement, such as making full or partial payment of the agreed consideration. These actions must be aligned with the terms of the signed agreement. The buyer must also show that they have either fully performed their obligations under the agreement or are ready and willing to perform their remaining obligations. </span></p><p class="c0"><span class="c3 c2">When these conditions are met, the law protects the buyer from being dispossessed. Even if the formal legal requirements for transferring ownership, such as the registration of the sale deed, have not been completed, the seller cannot deny the buyer’s rights to the property. The seller or anyone claiming through the seller is barred from enforcing any claims against the buyer’s possession, except as specifically allowed under the terms of the agreement.</span></p><p class="c0"><span class="c3 c2">However, this protection is subject to certain exceptions. It does not apply to third parties who acquire the property in good faith without knowledge of the earlier contract or the buyer’s part performance. Such third parties, if they act without notice of the buyer’s rights, are not bound by the prior agreement.</span></p><p class="c0"><span class="c3 c2">The doctrine of part performance is a safeguard against exploitation and ensures fairness in property transactions. It prevents sellers from taking advantage of buyers who have acted in good faith under an agreement by securing their rights to the property, even in the absence of a formally registered transfer. This provision ultimately reinforces the importance of honoring contractual commitments in property dealings while balancing the interests of all parties involved.</span></p><p class="c0"><span class="c2">In the case of </span><span class="c2 c8">Rambhau Namdeo Gajre</span><span class="c2"> v. </span><span class="c2 c8">Narayan Bapuji Dhotra</span><sup class="c2 c6"><a href="#ftnt1" id="ftnt_ref1">[1]</a></sup><span class="c2">, Supreme Court of India relying on the judgement in the case of </span><span class="c2 c8">Shrimant Shamrao Suryavanshi</span><span class="c2"> v. </span><span class="c2 c8">Pralhad Bhairoba Suryavanshi</span><sup class="c2 c6"><a href="#ftnt2" id="ftnt_ref2">[2]</a></sup><span class="c2"> held that the following are essential conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of TOPA: “(1) There must be a contract to transfer for consideration of 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 the contract. If these conditions are fulfilled then in a given case there is an equity in favour of the proposed transferee who can protect his possession against the proposed transferor even though a registered deed conveying the title is not executed by the proposed transferor. In such a situation equitable doctrine of part performance provided under Section 53-A comes into play and provides that the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.”</span></p><hr class="c9"><div><p class="c4"><a href="#ftnt_ref1" id="ftnt1">[1]</a><span class="c7 c10"> .</span><span class="c7"> </span><span class="c1">(2004) 8 SCC 614.</span></p></div><div><p class="c4"><a href="#ftnt_ref2" id="ftnt2">[2]</a><span class="c1"> . 2002 (3) SCC 676.</span></p></div></body>
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