Abstract:
This paper primarily focuses on the doctrine of part performance and the recent trends regarding protection under Section 53A of the Transfer of property Act,1882 even after amendment. The foundation of the doctrine in English law and the evolution in India and its development, scope, fundamentals of the doctrine and the meaning of the doctrine are well explained. The criterion for application of the doctrine and the exceptions to the doctrine is propounded in this paper. The legislative intent behind Section 53A is that protecting the transferee by allowing him to retain the possession of the property, against the right of the transferors, who after the execution or completion of an incomplete instrument of transfer has failed to complete it in the manner specified by law, without any fault of the transferee.
Keywords: Part-performance, transfer of property, contract for transfer, immovable property, written agreement, signed by transferor, consideration, possession of property, transferee in possession, willingness to transfer, protection of possession, equitable doctrine, defective right (shield not sword), no registered transfer required (in earlier law context), transferor barred from enforcing rights, equity and justice, bona fide transaction, law of estoppel.
INTRODUCTION
In the Indian legal context, the doctrine of part performance is a crucial concept in property law, which is entrenched in the principle of equity and is codified in Section 53A of the Transfer of Property Act, 1882. This doctrine plays an important role in protecting the rights of the transferee especially when both have acted in good faith by fulfilling their obligations under the contract.
THE FOUNDATION OF THE DOCTRINE OF PART PERFORMANCE IN ENGLISH LAW
The concept of part performance which is an egalitarian legal concept was established in English Law and the same was acknowledged by the Court of Chancery. In England, section 4 of the Statute of Frauds, explicitly states that every claim relating to property sale must be brought in writing. The judges understood that the absence of remedy for violation of verbal agreements which caused widespread abuse of the legislation, defeating the basic objectives of the Statute of Frauds. Thereafter, the Court of Chancery formulated the idea of part performance to prevent these scenarios and preserve transferees’ rights. The notion of part performance was addressed in the case of Foxcroft v Lyste.[1] There are two landmark judgements that facilitated to develop the doctrine of part performance i.e. Maddison v. Alderson[2] and Walsh v. Lansdale[3]. In these cases, the judges decided that when a person expands monetary funds in favour of property after a contract, treating that individual as a trespasser on the estate violates equitable and good conscience standards.
[1] (1733) 2 Eq Cas Abr 741; 22 ER 613
[2] (1883) 81 A.C. 467
[3] (1882) 21 Ch. D 9