A STUDY ON THE RULE OF PART PERFORMANC1.docx

8/18/2019 A STUDY ON THE RULE OF PART PERFORMANC1.docx

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A STUDY ON THE RULE OF PART PERFORMANCE

Submitted by -

Karan Khola

SM0113023

Faculty In-charge

Ms. Kasturi Gakul

Mr. Saheb ho!dhury

"#$I%"#& ' ("I)*+SI$, #" (II#& ##*M,/ #SS#M

31S$ %ctober/ 201


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TABLE OF CONTENT

1. INTRODUCTION

1.1 Research Objectives

1.2 Literature Review

1.3 Research Methodology

2. Development of Dot!"ne of P#!t Pe!fo!m#ne.

2.1 Under English Law

2.2 Under Transer o !ro"erty #ct 1$$2

2.3 #""licability o the %octrine with reerence to the Ty"e o !ro"erty

$. Dot!"ne of P#!t Pe!fo!m#ne

3.1 &ection '3# o Transer o !ro"erty #ct 1$$2

3.2 %istinction between English and (ndian Law Relating to %octrine o !art!eror)ance

%. M#nto!' Re()"!ement* fo! t+e Appl"#t"on of t+e Dot!"ne of P#!t

Pe!fo!m#ne

*.1 ())ovable !ro"erty

*.2 +ritten ,ontract

*.3 ,onsideration -ature o words in the ,ontract/

*.* !art !eror)ance by the Transeree

*.' #ct %one by the Transeree in 0urtherance o ,ontract*. +illingness o the Transeree to "eror) his !art o ,ontract

,. Conl)*"on

BIBLIO-RAPHY

1. INTRODUCTION


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The %octrine o !ast !eror)ance based on "rinci"le o euity develo"ed in England and

was subseuently added to the Transer o !ro"erty #ct 1$$2 via the #)end)ent #ct o

1424. (n law o contracts -or e.g. a contract or sale/ no rights "ass to another till the sale is

co)"lete 5ut i a "erson ater entering into a contract "eror)s his "art or does any act in

urtherance o the contract he is entitled to rei)burse)ent or "eror)ance in case the other

"arty drags its eet.

&ection '3# says that i a "erson )a6es a agree)ent with another and lets the other "erson

act on the behal o the contract7 such a "erson creates an euity hi)sel that cannot be

resisted on the )ere grounds o absence o or)ality in the evidence or contract o such a

transer. Thus i the contract has not been registered or co)"leted in the "rescribed )anner

the transeror can still not go against the transeree or anyone clai)ing under hi). 8owever

the deed should not be unsigned or unsta)"ed. othing in this section aects the rights o a

transeree or consideration even i he had no notice o contract o "art "eror)ance.

(llustration9 # contracts with 5 to sell his "lot or : a)ount o )oney. # acce"ts the advance

ro) 5 towards the sale o the "lot and hands over the "ossession o the said "lot to 5. #ter

so)e ti)e 5 is ready to "ay the re)aining sale a)ount but # reuses to acce"t the sa)e.

0urther # as6s 5 to hand over the "lot bac6 to hi).

8ere 5 is ready to "eror) his "art o the contract but # is not. (n such a case 5 can bring a

case reuiring s"eciic "eror)ance ro) #. (t does not )atter that the sale was not

registered.


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1.1 Re*e#!+ O/et"ve

To understand the dierence between %octrine o !art !eror)ance under English Law

and (ndian Law.

To understand the a""licability o &ection '3# o Transer o !ro"erty #ct

1.2 L"te!#t)!e Rev"e0

D! Poon#m P!#&+#n S#en# P!ope!t' L#0 2 n& E&n Le"*ne"*

This boo6 has "rovided the researcher with the conce"t o %octrine o !art !eror)ance

under English Law and (ndian Law. The boo6 also deals with the detailed "rovision o !art

!eror)ance with in Transer o !ro"erty #ct. (t has also su""le)ented the researcher with

various case laws which )ade the "rovision o law clear.

1.$ Re*e#!+ Met+o&olo3'

0or the co)"letion o the "roject the doctrinal )ethod has been used where it will be

concerned with the docu)ental research as the library was the only source o inor)ation "ut

to use. (nternet source also "rovided substantive inor)ation. ,ertain judge)ents have also

been used to substantiate the argu)ents.


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2. Development of Dot!"ne of P#!t Pe!fo!m#ne.

2.1 Un&e! En3l"*+ L#0

+#L&8 vs. LO;&%#LE and M#%%(&O vs. #L%ER&O are two o the )ajor cases

that have hel"ed develo" the doctrine o "art "eror)ance in England. (n (ndia this doctrine

has been enacted with a ew )odiications.

MADDISON v*. ALDERSON 1444

5 was #


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+alsh too6 a cotton )ill on lease or = years ro) Longsdale the owner o the )ill. The

agree)ent was "re"ared but not signed. (n the )eanti)e rent arrears started to accu)ulate as

+alsh could not 6ee" u" with the uarterly "ay)ents o rent. #n advance o one year


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2.2 Un&e! T!#n*fe! of P!ope!t' At 1442

+hen the Transer o !ro"erty #ct was enacted &ection '3A# did not ind "lace in it. (n the

absence o &ection '3A# there arose dierence o o"inion between various courts in (ndia as

regards the a""lication o English doctrine o "art "eror)ance o contract as it was then

"revailing in England. &ince there was a dierence o o"inion on uestion o the a""lication

o English euitable doctrine o "art "eror)ance in various courts o (ndia the ;ovt. o

(ndia resolved to set u" a &"ecial ,o))ittee or )a6ing reco))endations a)ongst others

whether the 5ritish euitable doctrine o "art "eror)ance is eBtended in (ndia also. The

&"ecial ,o))ittee was o the view that an illiterate or ignorant buyer who had "artly

"eror)ed his "art o contract reuired statutory "rotection. The ,o))ittee was o the

urther view that where a transeree in good aith that lawul instru)ent i.e. a written contract

would be eBecuted by the transeror ta6es "ossession over the "ro"erty the euity de)anded


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that the transeree should not be treated as tres"asser by the transeror and subseuently evict

hi) through "rocess o law in the absence o lawul transer instru)ent. The &"ecial

,o))ittee also considered the uestion whether "rotection under the "ro"osed &ection '3A#

to a transeree would also be available even i the "eriod o li)itation or bringing an action

or s"eciic "eror)ance o an agree)ent to sell has eB"ired. On the said uestion the

,o))ittee was o the view that even ater eB"iry o "eriod o li)itation the relationshi"

between the transeror and transeree re)ains the sa)e as it was within the "eriod o

li)itation and thereore the "ossession over the "ro"erty ta6en in "art "eror)ance o an

agree)ent is reuired to be "rotected even i the "eriod o li)itation or bringing an action

or s"eciic "eror)ance has eB"ired.

The aoresaid reco))endation o the &"ecial ,o))ittee were acce"ted by the ;ovt. o (ndia

as the sa)e is well relected in the ai)s and objects o a)ending #ct 1424 whereby &ection

'3A# was inserted in the #ct.

The &"ecial ,o))itteeCs re"ort which is relected in the ai)s and objects o a)ending #ct

1424 shows that one o the "ur"oses o enacting &ection '3A# was to "rovide "rotection to a

transeree who in "art "eror)ance o the contract had ta6en "ossession o the "ro"erty even

i the li)itation to bring a suit or s"eciic "eror)ance has eB"ired. (n that view o the

)atter &ection '3A# is reuired to be inter"reted in the light o the reco))endation o

&"ecial ,o))itteeCs re"ort and ai)s objects contained in a)ending #ct 1424 o the #ct and

s"ecially when &ection '3A# itsel does not "ut any restriction to "lea ta6en in deence by a

transeree to "rotect his "ossession under &ection '3A# even i the "eriod o li)itation to

bring a suit or s"eciic "eror)ance has eB"ired.

$. Dot!"ne of P#!t Pe!fo!m#ne


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The %octrine o !ast !eror)ance based on "rinci"le o euity develo"ed in England and

was subseuently added to the Transer o !ro"erty #ct 1$$2 via the #)end)ent #ct o

1424. (n law o contracts -or e.g. a contract or sale/ no rights "ass to another till the sale is

co)"lete 5ut i a "erson ater entering into a contract "eror)s his "art or does any act in

urtherance o the contract he is entitled to rei)burse)ent or "eror)ance in case the other

"arty drags its eet1.

&ection '3# says that i a "erson )a6es a agree)ent with another and lets the other "erson

act on the behal o the contract7 such a "erson creates an euity hi)sel that cannot be

resisted on the )ere grounds o absence o or)ality in the evidence or contract o such a

transer. Thus i the contract has not been registered or co)"leted in the "rescribed )anner

the transeror can still not go against the transeree or anyone clai)ing under hi). 8owever

the deed should not be unsigned or unsta)"ed. othing in this section aects the rights o a

transeree or consideration even i he had no notice o contract o "art "eror)ance 2.

(llustration9 # contracts with 5 to sell his "lot or : a)ount o )oney. # acce"ts the advance

ro) 5 towards the sale o the "lot and hands over the "ossession o the said "lot to 5. #ter

so)e ti)e 5 is ready to "ay the re)aining sale a)ount but # reuses to acce"t the sa)e.

0urther # as6s 5 to hand over the "lot bac6 to hi).

8ere 5 is ready to "eror) his "art o the contract but # is not. (n such a case 5 can bring a

case reuiring s"eciic "eror)ance ro) #. (t does not )atter that the sale was not

registered.

#s "er law a transer o i))ovable "ro"erty valued over Rs. 1@@ has to be registered. 5ut it

was believed that strict co)"liance )ay lead to eBtre)e hardshi"s es"ecially where one "arty

has already "eror)ed his "art in the conidence that the other "arty will honor the

agree)ent. ( such registration or other or)alities have not ta6en "lace the doctrine o "art

"eror)ance will be a""licable. ( such a transeree ta6es "ossession o the "ro"erty he

cannot be evicted due to an unregistered contract.

1 &anjeeva Row Transer o !ro"erty #ct -Dol. 1 edition 2@12 Universal Law !ublishers/ '1

2 Ibid


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The section is a deence as well as a right that hel"s "rotect the "ossession against any

challenge. (t tries to "revent raud on the )ere basis o ineective evidence o the transer.

The section does not coner a title u"on the transeree in "ossession but it i)"oses a statutory

bar on the transeror.

$.1 D"*t"nt"on et0een En3l"*+ #n& In&"#n L#0 Rel#t"n3 to Dot!"ne of P#!t

Pe!fo!m#ne

The English Law o !art !eror)ance

1/ The contract need not be written or signed by the transeror

2 The right under the doctrine is an euitable right

3/ (t can be used or enorcing the right as well as deending the right7 and

*/ (t creates a title in the transeree.

T+e In&"#n L#0 of P#!t Pe!fo!m#ne

1/ &ection '3# deals with the %octrine and state that the contract has to be written as well as

signed by the transeror

2/ (t is a statutory right7

3/ (t can only be used to deend the "ossession o the transeree7 and


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*/ (t does not create a title in the transeree3.

#ter 2@@1 a)end)ent to &ection '3# the a""lication o the section has seen dilution ? it no

longer serves as a substitute< or registration. (t should still hold good or deects other than

registration. 5ut registration o sale o i))ovable "ro"erty is co)"ulsory and &ection '3#

has been a)ended to incor"orate the sa)e

S!"m#nt S+#m!#o S)!'#v#n*+" #n& An!. 8. P!#+l#& B+#"!o# S)!'#v#n*+"%

FACTS9 (n the "resent case the res"ondents eBecuted an agree)ent o sale o an agricultural

land in avour o the a""ellant. The a""ellants in "ursuance o the agree)ent got the

"ossession o the "ro"erty. #ter the eBecution o the agree)ent the a""ellant ca)e to 6now

that the res"ondent is negotiating or sale with another res"ondent or which the a""ellant

iled a suit. The a""ellant iled or injunction and an injunction order was "assed in avour o

the a""ellant yet the res"ondent sold the land through a registered sale deed. The transeree

did not bring any suit within the li)itation "eriod or s"eciic relie.

(&&UE9 +hether the a""ellant can deend his "ossession over the land by way o !art

!eror)ance under Transer o !ro"erty #ct even ater the suit or s"eciic "eror)ance or a

contract to sale is barred by li)itationF

8EL%9 Even i the li)itation "eriod was over a "erson can obtain "ossession o "ro"erty in

"art "eror)ance o a contract to sale7 the transeree can deend his "ossession in case iled

by the transeror. but this can only be done is the transeree can well "rove that he has done

so)e act in urtherance o the agree)ent or the contract or is willing to "eror) his "art o

the act in urtherance o the contract. This was inter"reted so as there was not eB"ressly said

3 Transer o !ro"erty #ct1$$2

4 -2@@2/ 3 &,, =


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that the "lea o "art "eror)ance cannot be ta6en once the ti)e li)it or iling a suit or

s"eciic "eror)ance is eB"ired.

(n this case all the reuire)ents o !art !eror)ance were co)"lied with and the transeree

was able to "rove that he was willing to "eror) his "art o the contract which ulils the

essential o "eror)ing so)e act in urtherance o a contract either in ta6en "ossession or in

continued "ossession o the "ro"erty.

The court in this case allowed the a""eal as it was not dis"uted that the a""ellants were

willing to "eror) their "art o the contract.

The court in this case has rightly a""lied the doctrine. 8ere the a""ellant was able to "rove

the willingness to "eror) his "art o the contract which is an i)"ortant essential. &ince

along with this reuire)ent all other reuire)ents were also "roved. 8ence it was the right

o the a""ellant to have the deence o the doctrine which the court "rovided.

Se!#n'# P"ll#" v. S#n9#!#l"n3#m P"ll#",

0#,T&9 # contract was entered into by the "laintis and the irst and the second deendant to

transer an i))ovable "ro"erty to the irst deendant and that the irst deendant in

consideration o the said contract so )ade or transer o "ro"erty shall )arry the second

deendant. The said contract was )ade orally. The deendants were given the "ossession o

the said "ro"erty and the Gist to be given was iled in the na)e o the second deendant or

the years 14*$ and 14*4.

Later the "laintis clai)ed bac6 the said "ro"erty saying that the git was invalid as it was

contrary to the &ection 123 o the Transer o !ro"erty #ct and &ection 1= o the Registration

#ct.

(&&UE9 +hether the deendants can ta6e the deence o !art !eror)ance under &ection '3#

o the #ct in the given case and circu)stancesF

5 -14'4/ 2 Mad LH '@2 -'@/


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8EL%9 (t was said in the judg)ent that as "er the section git along with sale lease

)ortgage and eBchange reuire a written contract to ta6e "lace and that the contract should

be or a consideration. ,learly there involves a consideration to be given or the "ro"erty in a

contract to sale lease )ortgage eBchange and a git.

The "resent act )a6es writing o the contract necessary or the "ro"erty o value o Rs. 1@@

or )ore as "er &ection '* o the #ct or the "ur"ose o sale in case o si)"le and other

)ortgages a su) o Rs. 1@@ or above is reuired to be de"osited as "er &ection '4 in case o

lease eBtending one year as "er &ection 1@= o the #ct eBchanges under &ection 11$ and

under &ection 123 o the #ct in case o gits.

(n the "resent case the "ro)ise to )arriage was a consideration or the transer o "ro"erty

which was ta6en as a consideration but since the there only too6 "lace an oral transaction

between the "arties and not the contract in writing thus it alls within the a)bit o &ection 4

o the #ct. Thus it is neither a sale nor a )ortgage lease eBchange or a git. 8ence the "resent case could not be said to all within the a)bit o &ection '3# o the #ct.

-ov"n&!#o M#+#&"9 v. Dev" S#+#":

The )ortgagee in this case ailed to "rove that he did any act in urtherance o the contract or

that the )ortgagee was willing to "eror) his "art o the contract either o which is an

essential to "rove the case in avour.

The ,ourt held that the )ortgagee was not entitled to the beneit under &ection '3# and that

he could not "ossess that "ro"erty.

6 #(R 14$2 &, 4$4


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0#,T&9 The original !lainti 1 &ardar ;ovendrao Mahadi6 -Mortgagor/ )ortgaged a

"ro"erty to sole deendant %evi &ahai -Mortgagee/ at so)e rate o interest annually. The

)ortgage was a )ortgage with "ossession. The )ortgagor on Oct. ' 14*' served a notice to

the deendant to show the ull accounts o the )ortgage o which the )ortgagee ailed to

"rovide. &ubseuently so)e negotiations too6 "lace between the two and the "ro"erty was

sold to the )ortgagee but the sale deed or the sa)e could never be registered. On the other

hand the )ortgagor sold the "ro"erty to the !lainti 2 ;yarsilal -&ubseuent "urchaser/ via

a registered sale deed. Thereater both the "laintis iled a suit against the deendant or the

rede)"tion o the "ro"erty. The )ortgagee at that ti)e was already in "ossession o the

"ro"erty.

(&&UE9 ,an the )ortgagee gain the beneit o &ection '3# o the #ctF

8EL%9 The ,ourt held that the )ortgagee was not entitled to the beneit under &ection '3#

and that he could not "ossess that "ro"erty. This was due to the act that the )ortgagee could

not "rove that he has "eror)ed any act or is willing to "eror) any act in urtherance o the

contract. &ince the )ortgagee was already in "ossession o the "ro"erty the )ere "ossession

o the "ro"erty would render any result to the transeree. 8e needed to "rove so)ething

inde"endent o the )ere "ossession o the "ro"erty and an act done in urtherance o the

contract as the court shall not ta6e any the )ere act o continuing in "ossession o the

"ro"erty as evidence enough to "rovide the deence to the transeree. The )ortgagee could

not "rove that he did any act in urtherance o the contract thus he was held not entitled to

"ossession over the "ro"erty.

(n this case the judg)ent set a good "recedent over when the transeree can avail the right

over the "ro"erty. Mere already in "ossession o the "ro"erty is not enough as the "erson )ay

be in "ossession o the "ro"erty "ursuant to any other "rior encu)brances. The )ere

"ossession o the "ro"erty is enough and a strong evidences when the )ortgagee or the

transeree is or the irst ti)e ta6ing the "ossession o the "ro"erty and not when he is already

in "ossession o the "ro"erty. Thus an inde"endent act than a )ere "ossession o "ro"ertywas reuired to "roved in such case. (n the present case, the mortgagee failed to do so


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and ths the decision of the cort to not to pro!ide him "ith the defence nder

Section 53A of the Act "as #sti$ed%

S. P#!v#!t+#mm# v. A. S!"n"v#*#n;

0#,T&9 The a""ellant in this case was the rent holder o the "ro"erty and thereater he

entered into an agree)ent with the landlord or the "urchase o the "ro"erty thereby

beco)ing a "ros"ective buyer o the "ro"erty. &ince he was already living in that "ro"erty or

was in the "ossession o that "ro"erty the landlordAtenancy relationshi" su"erseded to the

"ros"ective buyerAseller relationshi" where the a""ellant beca)e the buyer in "ossession o

that "ro"erty. 5ut the dis"uted act re)ained o the agree)ent to sell )ade between theoriginal landlord and the tenant. The original landlord in 14$3 sold the land to the res"ondent

via a registered sale deed and transerred their right title and interest in the "ro"erty to the

res"ondent including the suit "re)ises. Thus in this case the res"ondent here beca)e the

subseuent transeree and as "er the law under &ection '3# o the #ct nothing in the section

shall aect the rights o the transeree or consideration who has no notice o the contract or

the "art "eror)ance thereo. Thus the res"ondent being the subseuent transeree has the

right to "rotect his "ro"erty rights under the section.

The res"ondent in this case clai)ed hi)sel to be the ownerAlandlord o a "ro"erty see6ing

eviction o the a""ellant which the res"ondent clai)ed that he is the tenant o the said

"ro"erty and got eviction by the Rent ,ontroller and the judg)ent was u"held by the 8igh

,ourt.

(&&UE9 +hether the a""ellant can eBercise the right under &ection '3# o the #ctF

8EL%9 The court in this case dis)issed the "etition on the ollowing grounds9

& -2@@3/ * &,, =@'


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+hen the a""ellant iled a suit or injunction the suit was dis)issed in its entirety. #long

with the suit or injunction dis)issed but also the alternative suit iled or s"eciic

"eror)ance and )onetary relie was also dis)issed.

&econdly he could not "rove that he was in "ossession o the "ro"erty in "art "eror)ance o

the contract. +hen a "erson who is already in "ossession o the "ro"erty enters into a contract

to "urchase the "ro"erty he in order to "rotect his beneit as the "ossessor o that "ro"erty

)ust sho" that he has done some act in frtherance of the contract and that the

act mst be e'ecti!e from that da( mst be consistent "ith the contract alleged%

Thirdly with his suit or s"eciic relie getting dis)issed it could not be said that the he

"eror)ed or was willing to "eror) his "art o the contract. This is so as the a""ellant had

not disowned his character as tenant in the suit "re)ises and that there was no evidence or

indings that the a""ellant was in "ossession o the "ro"erty "ursuant to the contract to sale.

#lso the a""ellant did not "ursue the )atter urther.

0ourthly the res"ondent who beca)e the subseuent transeree had no notice o contract o

"art "eror)ance. #s stated in &ection '3 o the #ct the rights o the transeree are to be

"rotected and ta6en care o. (n no case can the transeree


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&ince both the above reuire)ents were )et the ,ourt thus was right in saying that the

a""ellant had no right over the "ro"erty and saeguarded the rights o the subseuent

transeree%

B#) M)!l"&+#! v. So)#! Mo+#mm#& A&)l B#*+"! #n& An!4

0#,T&9 (n this case an unregistered agree)ent o sale was eBecuted by the )ortgager

!lainti in avour o the )ortgagee %eendant who was in "ossession o the "ro"erty and

would beco)e the owner o the "ro"erty i his na)e could be )utated into the )utation

register o the )unici"ality. The )ortgager hi)sel in urtherance o the agree)ent to sale

)ade an a""lication or )utation to )unici"al authorities and )ortgagee


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The ,ourt held that this act was suicient enough to "rotect the )ortgagee under &ection

'3# o the transer o "ro"erty #ct 1$$2 as there was so)e act done in urtherance o the

contract to sale which was suicient enough to "ut the )ortgagee on the "rotection.

Thus the court in this case thus dis)issed the "etition.

#s "er the "rovision there )ust be so)e act done in urtherance o the contract only then

shall the deence o "art "eror)ance can be availed. #nd in this case the )ortgagee by

iling or the )utation o the docu)ents in his na)e had done an act suicient enough to

"rove that the act so done was in urtherance o the contract. Thus the court by "roviding hi)

relie o "rotecting his right to "ossession over the "ro"erty had right done the justice.

%. M#nto!' Re()"!ement* fo! t+e Appl"#t"on of t+e Dot!"ne of P#!t Pe!fo!m#ne

. (n N#t+)l#l v. P+ool C+#n&6 &u"re)e ,ourt while inter"reting &ection '3A# culled out the

ollowing conditions to be ulilled or )a6ing out the deence o "art "eror)ance to an

action in eject)ent by the owner as under9A

* 14=@ 2&,R $'*


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-i/ That the transeror has contracted to transer or consideration any i))ovable "ro"erty by

writing signed by hi) or on his behal ro) which the ter)s necessary to constitute the

transer can be ascertained with reasonable certainty

-ii/ That the transeree has in "art "eror)ance o the contract ta6en "ossession o the

"ro"erty or any "art thereo or the transeree being already in "ossession continues in

"ossession in "art "eror)ance o the contract

-iii/ That the transeree has done so)e act in urtherance o the contract and

-iv/ That the transeree has "eror)ed or is willing to "eror) his "art o the contract.

In S#!! -ov"n&!#o M#+#&"9 v. Dev" S#+#" 1


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his avour and that he had ta6en "ossession in accordance with the ter)s o the agree)ent

and had built a actory on the land and also that he was "aying rent to the "laintis in

accordance with that agree)ent the deendant is entitled to retain "ossession in s"ite o an

absence o the registered deed.J. #gree)ent to lease )ay be evidenced by corres"ondence.

&ection '3# a""lies to )ortgages with "ossession.

( the agree)ent is void under any law section '3# will not "rotect "ossession. The

"rotection o "art "eror)ance cannot be availed in res"ect o a transaction which is null and

void. -,(T v. Dithalbhai !. !atel -1444/ 23 (TR 1@@1/. &ale ab initio null and void as "er

order o ,ollector in view o &ection * o ;ujarat Dacant Lands in Urban #reas -!rohibition

o #lienation/ #ct 14=2. order o ,ollector was not challenged. o transaction o sale in eye

o law. &ale not liable to taB on ca"ital gains.

(n case o a agree)ent conditional on co)"liance with statute there is an i)"lied ter) in the

contract that transeror will a""ly or reuisite "er)ission and the court will direct hi) to do

so. -athulal D. !hoolchand #(R 14=@ &u"re)e ,ourt '*/

-ii/ The contract )ust be in writing signed by the transeror or by so)eone on his behal. (t

is not necessary that there should be a or)al agree)ent.

-iii/ The writing )ust be in such words ro) which the ter)s necessary to construe the

transer can be ascertained.

-iv/ The transeree )ust in "art "eror)ance o the contract ta6e "ossession o the "ro"erty

or o any "art thereo

(t is not necessary that the contract )ust contain a direct covenant regarding transer o

"ossession.

(t is only necessary that "ossession should have been ta6en -need not be given/ in "art

"eror)ance o the contract.

+here only te)"orary "ossession was given or carrying out construction it was held that

the eBclusive "ossession in the legal sense re)ained with the Transeror and the Transeree

was not entitled to "rotect his "ossession under &ection '3 # o the T! #ct.

(t is not necessary that the transeree )ust be in "ossession o the entire "ro"erty.


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(t is enough i the transeree continues in "ossession or ta6es "ossession even o a "art o the

"ro"erty.

-v/The transeree )ust have done so)e act in urtherance o the contract. There should be

real neBus between the contract and the acts "leaded as in "art "eror)ance.

,ontinued "ossession o a tenant in the "ro"erty ater entering into the sale agree)ent would

not by itsel a)ount to a "artA"eror)ance. There )ust be so)e act attributable to the

contract or sale and not lease.

+hen a "erson already in "ossession o the "ro"erty in so)e other ca"acity enters into a

contract to "urchase the "ro"erty to coner the beneit o &ection '3# o T! #ct there )ust

be so)e act consistent with the contract alleged and such as cannot be reerred to the

"receding title. I#(R 2@@3 &, 3'*2J.

# tenant who continued to be in "ossession as tenant cannot ta6e beneit o &ection '3#

though subseuently an agree)ent to sale is entered between the "arties.

+here the "erson "uts u" construction ater being "ut in "ossession under the contract o sale

or ta6es electricity connection he can gain "rotection o &ection '3# o the T! #ct.

-vi/ The transeree )ust have "eror)ed or be willing to "eror) his "art o the contract.

The acts clai)ed to be in "art "eror)ance )ust be uneuivocally reerable to the "reA

eBisting contract.

&ection '3# coners no rights on a "arty who was not willing to "eror) his "art o the

contract.

!art "eror)ance as statutory right is conerred u"on the transeree on condition that the

transeree continues to be willing to "eror) his "art o the contract.

-vii/The docu)ent containing contract or transer o i))oveable "ro"erty i eBecuted on or

ater 2*th &e"te)ber 2@@1 should be registered.

!art "eror)ance a""lies even i s"eciic "eror)ance is not otherwise "er)issible.The

"rotection under section '3# can be availed o only under a registered agree)ent.

S)9+m"n&e! 7#)! 8. Am#!/"t S"n3+ 12

12 #(R 2@12 !unjab K 8aryana


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&ection '3A# o the T.!. #ct beore a)end)ent recogni>ed "art "eror)ance o the contract

even though the contract used to be unregistered and the transeree


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"lainti and then i you are arrayed as a deendant the court will "rotect you. ,heta6

Con*t!)t"on Lt&. v. Om P!#9#*+1$.

Conl)*"on

&ection '3# o the Transer o !ro"erty #ct 1$$2 see6s to "rotect the "ros"ective

transerees by allowing the) to retain the "ossession over the "ro"erty against the rights

o the transerors who ater the eBecution o an inco)"lete instru)ent o transer ail to

co)"lete it in the )anner s"eciied by law without there being any ault on "art o the

transerees. This section thereore "rovides or a "artial i)"ortation o the English

13 #(R 2@@3 M.!. 1*'


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doctrine o "art "eror)ance. (t urnishes a statutory deence to a "erson who has no

registered title in his avour to )aintain "ossession.

BIBLIO-RAPHY


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