Part Performance under Transfer of Property Act, 1882

Forums Miscellaneous Provisions Part Performance under Transfer of Property Act, 1882

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  • #3693

    The doctrine of part performance is applicable both in Indian as well as English system dealing with property laws. What are the major differences in application of these two systems?

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    • #3695

      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.

    • #3734

      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.

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