Part Performance under Transfer of Property Act, 1882
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In Indian Law, this doctrine is contained in Section 53 – A of Transfer of Property Act 1882 (Amendment Act Of 1929), whereas in English Law, it is included in Section 40 of the Law of Property, 1925. The right contained under this doctrine in India is a statutory right, and in English Law, it’s an equitable right. In Indian Law, the contract should be in writing and must be signed by the transferor. But in English law, it is not necessary to be in writing and signed by the transferor. In Indian Law, it does not create a title in the transferee, whereas in English Law, it creates a title in the transferee. Finally, in Indian Law, this doctrine can only be used for defending the possession of the transferee, but in English Law, it can be used both for enforcing and defending the right.
Doctrine of Part performance is a modified version of English doctrine. Section 53-A was added to the Transfer of Property Act, 1882 thus importing in India a modified form of equity of part performance as developed in England in Maddison V. Alderson. Prior to this amendment there was uncertainty and controversy regarding this concept in India but enactment of section 53- A set rest to all such confusions.
The Doctrine of Part Performance is an equitable doctrine. It is basically a situation where the contract is performed partly by taking the possession or any part thereof, in such a scenario the transferee is ready to perform the complete contract but the transferor refuses to do so. The willingness to perform the contract is very essential for this doctrine. In such situations the part performance by the transferee is assumed to be done which is ought to have been done. In the cases where the contract has been performed partly the transferor cannot be estopped from the obligation contracted to perform.
The concept of this doctrine in English Law does not demand the contract to be in writing or signed by the transferor and it is an equitable right which thus being an enforceable right. It can also be used to defend the possession of the transferee which created title in the transferee.
While the same is not the case in Indian Law, the contract in India in such cases need to be in writing and signed by both the parties. In India it is a statutory right and is used only to defend the possession of the transferee and it does not even create title to the transferee.The Doctrine of Part Performance which is based on the principle of equity was formed in England and was, along these lines added to the Transfer of Property Act, 1882 by means of the Amendment Act of 1929. In the law of contracts, rights are not transferred to another until the deal is finished. But if after entering into an agreement, an individual completes his part or starts his part of work which is in furtherance of the contract, he may be qualified for performance on the off chance that the other party dawdles.
Section 53A of the Transfer of Property Act, 1882 says that if an individual settles on an agreement with another and lets the other individual do some act for the furtherance of the agreement; such an individual makes equity himself that cannot be opposed on the negligible grounds of absence of formality in the proof or agreement of such an exchange.
in 1929, the Transfer of Property Act was amended and the English law of part performance turned into a piece of Indian laws. In India, the principle is utilized uniquely as a shield and not as a sword i.e., not to enforce rights as laid down by the Supreme Court in the Delhi Motors case. In any case, it must be noticed that the bothered party can either be the plaintiff or the respondent in a suit as the case may be.
Under the English Law of Part Performance,
1. There is no necessity for an agreement that is in writing or which is signed by the transferor.
2. The Doctrine is an equitable right and not a legal/statutory one.
3. It can be utilized for both; enforcing the right as well as defending the right; and
4. It makes a title in the transferee.The Doctrine of Part Performance was adopted by India from the English laws but with certain modifications, because of the following differences-
1. Under English law, as equity treats what has been done which ought to have been done, even an oral agreement is sufficient to attract the application of the doctrine. But in India, it is specifically provided that the agreement must be contained in a written document.
2. Under English law, the applicability of this Doctrine is in a wider scope than under Indian law. Under English law, the doctrine can be used for both attack and defense (a passive as well as active equity). In India, the doctrine can be used only for defense (a passive right), and no right of action is given to the transferee.
3. Under English law, any act in furtherance of the contract is sufficient to avail this remedy but under Indian law, possession of the property or any part thereof by the transferee is the must.
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