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madhu mittal (director)     24 February 2013

Sale of land on the basis of agreement

My one known person i.e. A had a land in residential area of village  which was under his and his forefather’s possession  for very long time i.e. about 100 years, but he does not have any documentary paper. He sold it on the basis of agreement to i.e. B on 05.11.2011, till date no registry in registrar office was got done by purchaser “B”. About 15 days ago, an another person of village i.e. C wanted to possession that land, on this there was a quarrel between B and C. C got registered  a complaint through court in police against B as well as A, as per knowledge of A, even C does not have any documents of right on that land. Now A wants to know what to do so that he should not be in trouble.



Learning

 1 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     24 February 2013

 

Doctrine of part performance is a very important provision under the Transfer of Property Act 1882 and the relevant provisions have been enacted under Section 53A of the Transfer of Property Act.

According to the statutory provisions, this doctrine works as follows: A person must have contracted to transfer; the subject matter of the transfer should be any immovable property; the transfer of property should be for a consideration and the transfer should be in writing and duly signed by either the transferor or on his behalf.

 

Finally, from the terms of the document, it should be reasonably certain that the intent of the parties is to transfer the immovable property from the transferor to the transferee.

Further, the transferee must have, in part performance of the contract, taken possession of the property or any part of the property. In case the transferee is already in possession of the property, then he should continue in possession in part performance of the contract and must have also done some act in furtherance of the contract .

In addition, the transferee must either have performed his part of the contract or must be willing to do the same.

If the above conditions are satisfied, then the transferor or any other person on his behalf are debarred from enforcing any right in respect of the property against the transferee or any person on his behalf.

They can only enforce a right expressly provided by the terms of the contract entered into between the parties .

This is despite the fact that the contract, which was required to be registered, has not been registered so, or where although there is an instrument of transfer of immovable property, but the transfer has not been completed in the manner as prescribed by law.

The above provisions tend to furnish a statutory defence to a person who has no registered title deed in his favour to maintain his possession but if he can prove that a written and signed contract in his favour has already been executed. Also that he has done some action as his part of performance of that contract.

In order to be eligible for protection of the above doctrine of part performance, it must be shown that there is a contract to transfer for consideration, the immovable property. Further, the contract must be evidenced by a writing signed by the person sought to be bound by it, and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are the prerequisites to invoke the provisions of Section 53 A of the TP Act.

In addition, it must be shown that the transferee has done something in part performance of his part of the contract. The act must be in furtherance to the contract and not otherwise. The acts claimed to be in part performance must be unequivocally referable to the pre existing contract and the act of the part performance must unequivocally point in the direction of the existence of the contract and evidencing, implementation or performance of the contract.

There need to be a real nexus between the contract and the acts done in pursuance to the contract or in furtherance to the contract. When a series of acts are done in part performance, one such act may be payment of consideration. Any one act by itself may or may not be of such a conclusive nature as to conclude the point.


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