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Doctrine of Part Performance: Shield or Sword


Doctrine of Part Performance: Shield or Sword
Doctrine of Part Performance: Shield or Sword

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Doctrine of Part-performance: Shield or Sword or Both


Section 53A, Transfer property Act (TPA) provides a legal defense for a transferee who lacks a registered title deed or a valid instrument to safeguard their possession. It does not confer ownership to the transferee.


To obtain full ownership, execution and registration of the transfer deed are still required. The unregistered document is admitted as evidence solely for demonstrating part-performance. Additionally, the transferee must petition the court for specific performance of the contract.


This section establishes an estoppel between the parties, not a substantive right. It is recognized that Section 53A can only be invoked defensively, meaning the transferee cannot use it to assert their title to the property or seek recovery of possession.


The doctrine of part-performance is primarily employed to retain possession, not to gain possession.


Courts have ruled that Section 53A does not grant the transferee any grounds to initiate a lawsuit as the plaintiff.


Consequently, the right under Section 53A is only available to the defendant. Denying plaintiffs access to Section 53A would deprive many transferees of protection against their transferor.


Therefore, a transferee in possession pursuant to an agreement, protected by Section 53A, should file a lawsuit to defend their possession.


They may seek a declaration of entitlement to possession and an injunction to prevent interference from the transferor.


The critical consideration in such cases is not whether Section 53A can be invoked by a plaintiff or defendant, but rather the rights asserted in the lawsuit.



Case Laws

In Achayya v Venkata Subha Rao (AIR 1957 A.P. 854), it has been held that whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor’s claim; otherwise, a transferor may dispossess the transferee by force and compel him to go to the court as a plaintiff.


A transferee can be a plaintiff or a defendant, but his object must be to defend his right of possession, not to obtain it. Thus, the rights under Sec. 53A can be used only as a shield and not as a sword. 


In Ram Chander v Maharaj Kunwar (AIR 1939 All 611), the lessee (transferee) brought a suit against the subsequent purchaser of the house of lessor, on allegation that the purchaser was demolishing the house and thus interfering with lessee’s rights.


Though the lessee was plaintiff, but he was seeking to ‘defend’ his rights to which he is entitled under Sec. 53A, while the defendants were asserting their rights.


Even though , Sec. 53A is a passive equity in Indian law, it does not mean that a transferee can never appear as a plaintiff.



Comparison with English Law


While Section 53A mirrors the English equitable doctrine of part-performance, there are notable distinctions in Indian law:


  1. Written Agreement Requirement: Unlike English law, which recognizes oral agreements, Indian law stipulates that the agreement must be in writing.

  2. Nature of Application: In England, the doctrine can be invoked for both attack and defense (active and passive equity). In India, it is limited to defense, and the transferee is not granted a right of action.

  3. Requirement of Possession: In India, possession is essential, whereas in England, any act in furtherance of the contract suffices.


For instance, in the English case of Walsh v Iionsdale (1882) 21 ChD 9, a tenant, W, entered into possession of a mill based on a written agreement for a lease. Despite no formal lease deed, W paid rent quarterly.


When the landlord, L, demanded a year's rent in advance, W refused and faced distress. The court ruled in favor of L, emphasizing that equity prevents a tenant from exploiting the absence of a deed to repudiate lease covenants. This underscores the importance of the transferee's willingness to fulfil their contractual obligations under Section 53A.

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