Introduction
The statute stipulates that a sales deal is concluded when the seller offers to sell and the buyer agrees and purchases to take account of negotiated terms. It may be oral. It may be signed or not by exchanging information. It may be signed by all parties on a single paper. It is also possible for each party to sign a copy by a contract in two sections, and to replace the signed copy by the buyer which means that the copy is signed by the seller and the seller has a copy signed by the buyer. The seller will still execute the contract and send it to the buyer who approves it under the doctrine of part performance.
An agreement for simple sales and purchases is a mutual contract that imposes the parties’ duties and privileges and can also be enforced. The understanding of such a contract will be controlled by the contract laws concerning the fulfillment of mutual commitments. Where an opportunity is reserved for a vendor to purchase back an object sold by the vendor by an arrangement, the option shall be in the form of a concession or right and may be exercised only in respect of its fulfillment.
The following should be noted:
(a) The performance of the selling act shall require no certifying witnesses such as a gift certificate, requiring at least two certified witnesses, as provided for in Section 123 of the Property Transfer Act of 1882, at the time of execution;
(b) No selling deed regulated by section 54 of the Transfer of Property Act, 1882 shall extend in respect of Section 68 of the Indian Evidence Act, 1872, which deals with inspection for evidence about prove execution of the document.
Furthermore, the distinction between ‘selling’ and ‘exchange’ of property should be noticed. The distinction between the sales and a change is, for the latter, that the money is paying for the prices, while the second is paid in commodities using barters. If the land is exchanged in return for anything else from money, this trade can be considered an ‘interchange.’
Section 53A
Article 53A of the Act imposes on the transferor a constitutional bar to request the ownership by the transferee of the immovable goods. The transferor shall be disentitled from seeking possession by the proposed transferee.
For example, if the transferor attempts to take over physically, the prospective transferee will be able to institute an action against the transferor to uphold the bar of Article 53A of the Act[1].
Meaning of Doctrine of Part Performance
The doctrine of contractual part-performance is founded on the general philosophy of fraud prevention. It is intended to secure the transferor who has acquired and invested money to develop it further.
When a transferee has taken custody of the transfer, believing that the transfer is done according to the statute, it would be unfair to encourage the transferee to regard it as an infringer.
Essentials Elements
1. The contract must be of immovable property
- The contract must be for consideration
- The contract must be in writing and signed by him/her or on behalf of him.
- He/she must have some conditions under the contract for a transfer of immovable property.
- The contract or the agreement to sell must be registered.
- The language of the document must be such that the terms are certainly able and not vague must be reasonable and clear if not then the doctrine does not apply[2].
2. The person to whom it is transferred
- If the property is in custody or some part of it already, or if the property is in possession, the same will occur.
- In the exercise section of the deal, the act of taking possession shall be taken.
- And, to facilitate or invoking the section for the contract, the transferee who was still in charge of the contract has to act something in its advancement.
3. The person to whom the property is transferred is willing to perform the contract or part of it.
4. The person who is transferring the property or any person on behalf of him cannot claim any right on the property on which the person to whom the property is transferred is residing or has possession unless the rights were explicitly mentioned in the terms of the contract.
5. The Doctrine of part performance cannot be invoked if the manner of the contract has not been completed as prescribed by the statute.
The provision of the section provides:
This section will not affect the rights of a transferee who did not know the doctrine of part performance of the contract[3].
Example: If A signs an agreement of sale with B and gives him the possession of the property and B is residing the said property, the later A sells the same property to C through sale deed, and C has no knowledge of the previous agreement then this section will not affect his rights.
Scope of Doctrine of Part Performance
1. In plain reading, a transferor shall take ownership part in the execution of the contract for the property in question, aside from meeting the other provisions, using the shield provided for in this clause, and having done so to promote the contract.
2. Where the relevant contract does not comply with the provisions of a legal contract, the court cannot accept the plea referred to herein. For a transferor to use insurance in this clause, there must then be a legal contract.
3. The purpose of this provision is restricted only to the placing by the transferor, in connection with a property already owned by the transferor, of a bar on the protection of the rights.
4. The section grants no right on unregistered transfer to the transferor to assume custody of the transferor or any other right, it is only applicable to him as a protection.
5. For this clause to apply, the contract must be linked effectively to actions performed in support of the contract or to actions that may be unequivocally alluded to in that contract.
6. Where there is no transfer arrangement or land, the applicability issue of this provision does not arise.
7. The transferor must be the owner to attract the disposition of this section, a sales agreement should be concluded and the transferor’s possession should be by that agreement and the transferor has to do something else to support the agreement, and he has to be willing and willing to fulfill his part of the agreement.
The objective of Doctrine of Part Performance
1. The statute obliges both the transferor and the transferee to carry out a transfer. The transferee is generally required to pay the consideration under the terms of the contract and to perform the transfer act in a manner specified by Statute, the transferor is responsible for the transferee.
2. Section 53A centers on maintaining the transferee’s right to maintain ownership of the property if the transferee does not have liability because of the fault by the transferor in completing the convey instrument in the way stipulated by statute.
3. This section deals to prohibit the transferor or his successor from using a record that is not being registered provided the transferor performs the contractual portion and has taken care of any immovable property in connection with the conclusion of the contract.
4. To protect his property, the transferor has the right as a defense himself.
5. This section affects partial equality and partial incorporation in the Indian legal framework of the doctrine of partial results.
6. In the absence of a registered agreement, this provision provides for the procedural defense such that a person can retain ownership of his portion of the deal.
7. The primary purpose of this clause is to prohibit the recipient or parties claiming the title in violation of the interests of the other contracting party who has acted as a result of the agreement concluded.
8. This provision provides the accused with the ability to shield his possession from the transferor or others claiming his right under him, such as his heirs, assigned persons and legal agents.
9. This clause stipulates the transferor with a contractual bar that does not confer title to the transferor over the property in question. The transferred party cannot then bring an action to declare his rights to the land and to retrieve ownership on the grounds of the asserted title.
10. The transferee will still exercise his right as a shield, but he will not be allowed to exercise his right as a separate claim, either as complainants or defendant, only because he has satisfied the conditions specified in this clause, he does not assert the right under the present clause.
Difference between English law and the rule laid by this statute [4]
The main differences between the English theory and the law in this section are:
1. English law applies in oral contracts, but this Clause is only limited to contracts in:
(a) writing or
(b) signed by or on behalf of the transferor to provide the conditions required for the transfer.
2. According to English law –
(a) both the transferor and the transferee may request the precise implementation of this contract,
(b) One may, in violation of the contract, resist the lawsuits of the other claiming rights; under this section, the transferor or any person claimed in his place shall, however, be deprived, except as specifically provided for under the conditions of the contract, of enforcing against him and against any person claiming in his place all rights concerning the property which the transferred person has taken over.
3. According to English law, the partial execution of a contract is only equitable rather than legal; but under that section, the doctrine of part performance results in a contractual defence right; but that right is one which the claimant may have had under the written arrangement, if only in the absence of any formalities. The section confers upon the group only those privileges as they will be given by written agreement for lack of formality, but it does not offer any rights that would not be granted by an informal agreement.
[1] The Transfer of Property Act (Amendment), Professionals S. 53A (2003).
[2] Bobby Suramma v. PC Handramma, AIR 1959 Andh Pra 568.
[3] The Transfer of Property Act (Amendment), Professionals S. 53A (2003).
[4] 3rdedition, Dr Poonam Pradhan Saxena, Property Law 285-88 (2020).
This article has been written by Usara Fatima Kazi, 2nd Year B.A LL.B student at the Maharashtra National Law University of Aurangabad.
