Can Doctrine of Part Performance be invoked to file a suit for possession?

The objective of the study is to know the extent and scope of “any right” debarred, which was procured by the transferor in respect of the “property” and what kinds of property can be covered within this section and what is the meaning of “taken or continued in possession” of the property.

The provision provides a statutory right to the transferee against any right of the transferor to defend his possession over the property, either taken possession or right in continuance of the possession, the scope of which is discussed in this PSDA.

The Theory of Part Performance is an equitable doctrine that is included to avoid fraud and illicit advantage based on the document's non-registration. This doctrine is founded on the maxim, Equity looks at what is done rather than what should have been done.

The doctrine basically states that the transferor or any person claiming under him is barred from enforcing against the transferee and any person 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 contract term.

Section 53A was enacted in 1929 by the Transfer of Property (Amendment) Act 1929 and is based on the equitable theory of part performance in English law. [1] It is also known as 'equity of part-performance.'

Section 53A

1. Section 53A of the act prohibits the transferor from attempting to wrest ownership of the immovable property from the transferee in possession.

2. It precludes the transferor from pursuing possession from the prospective transferee who is already in possession.

3. For example, if the transferor tries to take possession violently, the prospective transferee in possession may file an action to enforce Section 53A of the act against the transferee.

Section 53A is only applicable if the following requirements are met:

The Supreme Court reiterated the key requirements for the applicability of this clause in Vasanthi v. Venugopal :

1) A written contract for the transfer of real estate.

The pre-existence of the contract is the most essential limb of Section 53A.

It must be in writing and signed by the transferor;

It must be for consideration; and it must be in writing and signed by the transferor. The terms required to complete the transfer may be determined with reasonable certainty.

2) Under the terms of this contract, the transferee obtains control of the property.

The transferee should have taken possession of the property, or the transferee who is already in possession should stay in possession and do some act in furtherance of the contract.

3) The transferee has either fulfilled his contractual obligations or is prepared to do so. The willingness of the transferee to execute his side of the contract is a necessary requirement.

If these conditions are met, the transferee may make a claim under this provision that he should not be evicted/dispossessed from the property.

Section 53A Exception:

The regulation outlined in this section does not apply to/affect the right of a future transferee for consideration who has no knowledge of the contract or its partial fulfilment.

Nature of the rights of the transferee under Section 53A:

1) No title or interest in property: Section 53A has no effect on the intended transferor's ownership rights, since he or she remains the complete owner of the lands until they are formally passed to the transferee by sale-deed.

2) Passive equity; no right of action: Section 53A only gives a right of defence; it cannot be utilised as a sword or a shield. As a result, the scope of this clause is limited since the transferee has no right of action.

ILLUSTRATIONS:

A and B have signed into a land purchase agreement. The transferee has paid the fee for taking possession and is ready to fulfil his contractual responsibilities. Since the land transfer has not been registered A, the transferor wishes to eject B from the property. In such a case, the theory of Part performance comes into play, which states that A cannot remove B from the Land because B will not be permitted to suffer just because the registration formalities were not followed.

Application of Sec. 53A to Suit for Possession:

Sec. 53A specifically states that the transferee must have taken possession of the property (or a portion of it) or if already in possession, must stay in possession and do the same conduct in furtherance of the contract.

Sec. 53A provides a statutory defence to a person (transferee) who lacks a registered title-deed/or a legal instrument in his favour in order to keep (or defend) his possession provided he can establish a written and signed contract and part-performance of contract on his side (the pan-performance 55. in fact, evidenced by possession).

The premise that Sec. 53A can only be invoked in defence means that the transferee

cannot utilise the clause to establish his claim to the property declared or to seek recovery of custody of the property. In India, it is well established law that the idea of part-performance is accessible to keep possession rather than get possession:

A. When the transferee is already in possession, he may bring a suit under Section 53A to defend his possession and to get an injunction prohibiting the transferor from interfering with his possession.

B. If the transferee has been forcibly/illegally evicted, the transferee may seek ownership of the property under Section 6 of the Specific Relief Act.

C. When the transferee is never in possession (or has lost possession), he cannot profit from Section 53A, because it simply serves to prevent a transferor from enforcing his right, and does not provide the transferee any right to claim ownership.

=> Thus Section 53A cannot be used to obtain possession of property , but it can be used to retain possession of property.

CASE LAW:

Srimant Shamrao Suryavanshi and Anr. V. Prahlad Bhairoba Suryavanshi, (2002) 3 SCC 676

FACTS: In this case, the respondents signed a sale agreement for agricultural property in favour of the appellant. The appellants obtained control of the property in accordance with the terms of the agreement. Following the completion of the agreement, the appellant learned that the respondent is in the process of negotiating a sale with another respondent, for which the appellant filed an action. Despite the fact that the appellant applied for an injunction and that an injunction order was issued in her favour, the respondent sold the land through a registered sale deed. The transferee did not file a claim for specific relief within the time limit.

ISSUE: Can the appellant defend his ownership of the land through Part Performance under the Transfer of Property Act even after the suit for particular performance on a contract to sell is prohibited by limitation?

HELD: Even though the limitation period has passed, a person can take possession of property in partial fulfilment of a contract to sell; the transferee can defend his possession in the event that the transferor files a complaint. However, this may only be done if the transferee can demonstrate that he has performed some act in furtherance of the agreement or contract, or that he is prepared to execute his portion of the act in furtherance of the contract. This was construed in this way since it was not specifically stated that the plea of part performance could not be accepted after the time restriction for commencing an action for particular performance had elapsed.

All of the Part Performance requirements were met in this case, and the transferee was able to demonstrate that he was willing to perform his part of the contract, which fulfils the essential of performing some act in furtherance of a contract, either in taken possession or continued possession of the property.

The court permitted the appeal in this instance because it was undisputed that the appellants were willing to execute their share of the contract.

The concept was correctly applied by the court in this case. In this case, the appellant was able to demonstrate his intent to execute his side of the contract, which is a vital need. Because, in addition to this condition, all other requirements were also proven. As a result, the appellant had the right to the doctrinal defence that the court offered.