Page 1 of 8

TRANSFER OF PROPERTY ACT,

1882

Afsha,GU14R0131

BBA. LLB,9TH SEMESTER

PROJECT REPORT ON

SECTION 53-A

PART PERFORMANCE
Case
PRABODH KUMAR DAS VS
DANTAMARA TEA CO. LTD.
 Page 2 of 8

Section 53A of the Transfer of Property Act, 1882

DEFINITION – SECTION 53-A

Part Performance – Where any person contracts to transfer for consideration any
immoveable property by writing signed by him or on his behalf from which the terms
necessary to constitute the transfer can be ascertained with reasonable certainty, and the
transferee has, in part performance of the contract, taken possession of the property or any
part thereof, or the transferee, being already in possession, 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 his part of the contract, then, notwithstanding
that where there is an instrument of transfer, that the transfer has not been completed in the
manner prescribed therefore by the law for the time being in force, 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.

The proviso is an exception of sorts stating that the interests and rights of a subsequent
transferee for consideration will be protected as long as he had no notice of the contract
leading to the part performance due or the part performance thereof.

In India, the doctrine is used only as a shield and not to enforce rights as laid down by the
Supreme Court in Delhi Motors case. But it must be noted that the
aggrieved party can either be the plaintiff or the defendant in a suit as the case maybe.

ENGLISH AND INDIA LAW

 Page 3 of 8

English Law of Part Performance

1) The contract need not be written or signed by the transferor
2 The right under the doctrine is an equitable right
3) It can be used for enforcing the right as well as defending the right; and
4) It creates a title in the transferee.

The Indian Law of Part Performance

Section 53A deals with the Doctrine and state that the contract has to be written as well as
signed by the transferor
2) It is a statutory right;
3) It can only be used to defend the possession of the transferee; and
4) It does not create a title in the transferee.

After 2001 amendment to Section 53A, the application of the section has seen dilution – it
no longer serves as a ‘substitute’ for registration. It should still hold good for defects other
than registration. But, registration of sale of immovable property is compulsory and Section
53A has been amended to incorporate the same.

SCOPE
Section 53-A can be divided into following five paragraphs:
First, says about the transferor and conditions that concern him.
Second and third talks about the transferee; what he should do to get protection of
section 53-A.
Fourth para describes the nature of protection that is given by doctrine of part-
performance.
Fifth para is a proviso protecting bona fide purchaser for value without notice from part
performance doctrine.
APPLICABILTY
So far as applicability of sec 53-A of the Act is concerned, what is to be seen is that the
section provides for a shield of protection to the proposed transferee to remain
in possession against the original owner who has agreed to sell to the transferee if the
proposed transferee satisfies other conditions of section 53-A.
That protection is available, only against the transferor; the proposed vendor would
disentitle him from disturbing the possession of the proposed transferee who is put in
possession pursuant to such an agreement.
 Page 4 of 8

But that has nothing to do with the ownership of the proposed transferor who remains
full owner of the lands till they are legally conveyed by a sale deed to the proposed
transferee.
The following postulates are sine qua non for basing a claim on sec 53-A of TPA :
i. The contract should have been in writing signed by transferor.
ii. The transferee should have got possession of the immovable property covered by
the contract.
iii. The transferee should have done some act in furtherance of the contract.
iv. The transferee has either performed his part of the contract or is willing to perform
his part of the contract.

DOCTRINE OF PART PERFORMANCE

Doctrine of part performance in an equitable doctrine. It is also known as “equity of part

performance.’

Under this doctrine, if a person has taken possession of an immovable property on the basis of
a contract of sale and has either performed or is willing to perform his part of contract then, he
would not be ejected from the property on the ground that the sale was unregistered and legal
title has not been transferred to him.

For instance,

There is a contract of sale of a piece of land between A and B. the contract is in writing,
stamped, attested and duly executed but not registered by A who is the seller. B, who is
the purchaser, has performed or is willing to perform his part of the contract i.e. has paid the
price or is willing to pay the same. On the basis of such contract B takes possession of the land.
Now, A sells the land to C through a registered deed. C having legal title of the land, attempts
to eject B.

At this stage, since B has no legal title, law may not protect his possession but, equity shall
help him from the being dispossessed.

The doctrine of part performance is, therefore, based on the maxim:

“EQUITY LOOKS ON THAT AS DONE WHICH OUGHT TO HAVE DONE.”

 Page 5 of 8

That is to say, equity treats the subject matter of a contract as to its effects in the same manner
as if the act contemplated in the contract had been fully executed, from the moment
the agreement has been made, through all the legal formalities {e.g. of registration} of contract
have not been yet completed.

Table of Reference
Cases

1. Prabodh kumar Das vs Dantamara Tea co. Ltd

2. Mohammad musa v. aghore kumar ganguli
3. Ariff v. Jadunath
4. Mian Pir Bux v. Sardar Mohhamad Tahir
5. Leprosy mission v. N.V.V. satyanarayana Reddy
6. Mool Chand Bakhru v. Rohan

Explanation of the Case;

Prabodh kumar Das vs Dantamara Tea co. Ltd

NATURE OF TRANSFEREE’S RIGHT UNDER SECTION 53-A

a. NO TITLE OR INTEREST IN PROPERTY

Section 53-A does not confer any title or interest to the transferee in respect of the property in
his possession. This section provides that when the conditions laid down in it are fulfilled, the
transferor or any other person cannot evict the transferee. In the event of being evicted he can
raise the defence of equity of part- performance. And section 53-A would protect his right to
continue the possession. Except the right to continue his possession, no other interest or title is
created in favour of the transferee. This section therefore imposes a statutory bar on the
transferor (i.e. he cannot dispossess transferee) but does not confer any title on the transferee.

The transferee can get the title of the property under the contract of sale only after its
registration. Section 53-A entitles the transferee merely to protect his possession. So,
this section does not defeat the provisions of the registration act.
 Page 6 of 8

Section 53-A does not affect the ownership rights of the proposed transferor who remains full
owner of the lands till they are legally conveyed by sale deed to the transferee, he continues to
be the owner of lands for all proposes.

b. PASSIVE EQUITY; NO RIGHT OF ACTION

Section 53-A does not give transferee any right of action. It provides merely a right of defence.
That is to say where a transferee takes possession of an immovable property, he can raise the
defence of part performance in case he is evicted by transferor or any other person. He is not
entitled to restrain the transferor from transferring the property from to any other person.

In India the equity of part performance is a passive equity: it can only be used only as a shield
not as a sword. The scope of this section is limited because no right of action is available to
transferee.

PRABODH KUMAR DAS V. DANTAMARA TEA Co. Ltd.

It is a leading case dealing with the nature of rights of transferee under Section 53-A. the facts
and the law laid down are given below:

FACTS

1. Gillanders &co. agreed to sell a tea estate to one S.N. Roy.

2. The agreement was not registered. But, S.N.Roy paid the first installment of the
consideration and took possession.
3. Later on the Gillanders & co. sold the tea estate to Dantamara Tea & Co. through a
registered sale deed on the ground that S.N Roy failed to give the remaining instalments
of the consideration.
4. Dantamara co. as owner of the tea estate (but without possession), obtained also the
export license.
5. Subsequently Prabodh Kumar Das acquired rights under the contract of sale from S.N.
Roy and acquired also the possession of the tea estate.
6. Thus Prabodh Kumar Das had now he same position as that of S.N. Roy.
7. Prabodh Kumar Das filed a suit for declaration that the Dantamara Co. was not the
owner of the estate and that this co. had no right to ell tea under the export –license
given to it.
8. He also prayed for an injunction.
 Page 7 of 8

Issues raised in a case (Plaintiff, Prabodh Kumar Das)

1. Whether the plaintiff in lawful possession of the suit property or not?

2. Whether the plaintiff is holder of lawful right title and interest of the suit property?
3. Is the transfer of the suit property by S.N. Roy to the plaintiff lawful?
4. Whether the delivery of the possession of suit property by S.N. Roy to the plaintiff is
lawful?

Issues (Defendant, Dantamara Tea Co. Ltd)

1. Whether the defendant entitled to get the possession of suit property?

2. Whether the defendant is the holder of lawful right, title and interest of the suit
property?
3. Whether the transfer of the suit property is a void sale deed no. to the defendant is
lawful?
4. Whether the issuance of the license to sell the tea to the defendant is lawful ?

DECISION

The Privy Council held that in India the equity of part performance as incorporated in section
53-A of TPA was not an active equity. It does not give any right of action to the transferee who
is in possession of property under an unregistered contract of sale. The right conferred under
section 53-A is a right available only to a defendant to protect his possession.

The injunction was therefore, not granted and the appeal was dismissed. Accordingly,
the established principle of law is that in India the equity of part performance can be used only
as shield and not as sword.

RIGHTS OF SUBSEQUENT TRANSFEREE FOR VALUE

The proviso to this section protects the interests of a subsequent transferee for value without
notice of previous transferee’s rights of part performance. Therefore, this section does not
affect the rights of the transferee for consideration who has no notice of the contract of sale or
of part performance.

For e.g. A who is the owner of a land contracts to sell it to B. The contract is unregistered and
in part performance of this contract B takes possession of the said land. Under this section, the
transferor or any other person cannot dispossess B from the land. But, if A sells the land to C
through duly executed and registered sale deed and C has not the least knowledge of B’s right
 Page 8 of 8

of part performance then, section 53-A shall not apply. And B cannot resist C from evicting B
and taking possession of the land.

Thus, any rights which the transferee under this section may have against the transferor would
not be of any avail against a bona fide transferee for value having no notice of the transaction.
The burden of proving that the subsequent transferee had no notice lies on the person claiming
the benefit of part-performance.

BIBLIOGRAPHY

 Mulla, “The Transfer Of Property Act, 1882”, 9th Edn., Lexis Nexis, Nagpur
 Avtar Singh, “The Transfer of Property Act,” Universal law publishing co.pvt.ltd.,
Allahabad (2006)
 Dr. G.P.Tripathy, “The Transfer of Property Act,” Central Law Publications, 11th
edition,Allahabad.
 Dr. R.K.Sinha, “The Transfer of Property Act,” central Law Agency Allahabad,14th ed.
 Dr. Poonam Pradhan Sexena, “Property Law”, “Lexis Nexis Butterworths Wadhwa,”
Nagpur, 2nd Edition.