Explain the Doctrine of 'Part Performance' as conditioned in the T.P. Act. Give illustrations of facts which will constitute and which will not constitute Part-Performance.

Question: Explain the Doctrine of 'Part Performance' as conditioned in the T.P. Act. Give illustrations of facts which will constitute and which will not constitute Part-Performance. [BJS 1979, 1984, 1987, RJS 1999]

Find the answer to the mains question of Property Law only on Legal Bites. [Explain the Doctrine of 'Part Performance' as conditioned in the T.P. Act. Give illustrations of facts which will constitute and which will not constitute Part-Performance.]

Answer

The Doctrine of Part Performance is encapsulated in Section 53-A of the Transfer of Property Act, 1882. This provision lays down conditions under which a transferee, in part performance of a contract for the transfer of immovable property, is entitled to retain possession despite the non-completion or non-registration of the contract.

According to Section 53-A, the following conditions must be satisfied to invoke the doctrine:

• Existence of a Written Contract: The transferor must contract to transfer immovable property for consideration, and this contract must be in writing, signed by the transferor or on his behalf. The written document should contain terms that enable ascertaining the necessary elements for the transfer with reasonable certainty.
  
• Part Performance by the Transferee: The transferee, in part performance of the contract, must take possession of the property or continue in possession if already in possession.
  
• The transferee must also perform some act in furtherance of the contract.
  
• Willingness to Perform: The transferee must have performed or be willing to perform his part of the contract.

In Sardar Govind Rao Mahadik v. Devi Sahai, AIR 1982 SC 989, the Supreme Court reiterated the importance of a written agreement with ascertainable terms for the invocation of the doctrine. The Court emphasized that protection under the Doctrine of Part Performance is contingent upon the fulfillment of these essential conditions.

Considering the aforesaid provision and legal position of the doctrine of part performance, the following are the key factors which majorly decided what will constitute as Part-Performance under the Act:

1. Payment of Consideration: If a transferee pays the agreed consideration amount as specified in the written contract for the sale of immovable property, it can be considered part-performance.
   
2. Taking Physical Possession: If the transferee, under the contract, takes physical possession of the property or any part thereof, it qualifies as part-performance.
   
3. Making Substantial Improvements: The transferee, in part performance, makes substantial improvements or investments in the property as an act in furtherance of the contract.
4. Fulfillment of Contractual Obligations: The transferee fulfills the obligations outlined in the contract, demonstrating a clear intention to abide by the terms of the agreement.
5. Continuation of Possession: If the transferee, already in possession of the property, continues to stay on the premises as part of the contract and performs acts in furtherance of the agreement.