Section 53-A of the Transfer of Property Act does not confer "title". It enables a person without title to defend his "possession"? ..... decided cases.

Question: Section 53-A of the Transfer of Property Act does not confer "title". It enables a person without title to defend his "possession"? Do you agree with the above statement? Give reasons for your answer with the help of decided cases. [UPJS2006]

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Answer

The rule laid down by Section 53A of TPA, 1882 is that when a party has taken possession under a contract or already being in possession continues his possession and that party is willing to perform his/her portion of the contract or that party has done some act in furtherance of the contract, the other party cannot remove him/her from possession of the property. Section 53A of TPA, 1882 operates as a bar or estoppel to the plaintiff claiming his title and gives the defendant a right to protect his/her possession.

The doctrine of part performance has originated from principles of equity, justice and good conscience. It is based on the equitable maxim, “Equity looks on that as done which ought to be done.” When a party to a contract has performed his/her part of the contract willingly in the confidence that the other party would also do the same and if the other party refuses to perform his/her part then the doctrine of part performance comes into play and protects the interest of the performing party and safeguards his/her possession which is obtained in furtherance of a contract.

There is another equitable maxim which is relatable to this doctrine, namely ubi jus ibi remedium (where there is a right, there is a remedy). When a party is ready and willing to perform his obligations under a contract it is obvious that the party has gained some interest or right in that property so that party should have a remedy in law too. Otherwise, it will be a grave injustice.

The section, nowhere, provides that the transferee notwithstanding the part performance of the contract acquires any enforceable right except the right of specific performance of the contract as against the transferor or any person claiming under him. The only equitable relief, that is made available to him, is to disqualify the transferor or his privy from enforcing him (the transferee) and persons claiming under him any right in respect of the properties. The disqualification is more or less personal as, according to the proviso, it does not affect the rights of a transferee for consideration without notice of the contract or of the part performance thereof.

The proviso, necessarily, leads to the result that the section did not vest the transferee with any substantive right under the contract which ensures as against the whole world, or else that Section 54 of the Act would be nugatory. The disqualification of the transferor debars him "from enforcing against the transferee" any of his rights to or in respect of the property, This indicates that the section provides for an available defence to the transferee when either the transferee or the person claiming under him seeks to enforce a right.

In the case of Madhuban Ganda v. Basant Khetri, AIR (34) 1947 Pat 424, it was held Section 53-A of the Transfer of Property Act does not confer "title" and only enables a person without title to defend his "possession". The observation of the court is extracted below:-

"The provisions of Section 53A do not confer any title on the transferee. They can be used only in defence, and not for attack, and, moreover, they can be used in defence only against the transferor on any other person claiming under him. Thus, where in a suit for declaration of title to and recovery of possession over certain lands comprising an occupancy holding the plaintiffs are persons claiming under the transferor as his heirs, the provisions of Section 53A can be set up in defence against them, and though the part performance may have created no title in the transferee the plaintiffs can enforce no right in respect of the property on the ground of lack of registration.

The equitable basis of the doctrine is that having sold the property to the transferee, having put him in possession, then even if the transfer is void the transferor in interests of the prevention of fraud will not be heard to say so and neither will any one claiming under him."