NOTES ON PART PERFORMANCE(S 53A OF TRANSFER OF PROPERTY ACT)

Requisite of this doctrine:-

1) There should be a contract to transfer for consideration,any immovable property by a writing signed by transferor or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.

The Orissa high court has held that if parties execute an unregistered sale deed without prior permission of competent authority,the transaction is void,and benefit of S 53A can not be claimed.(Sadhu meher v Rajkumar patel AIR 1994 Orissa 26).

2) The transferee should in part performance of contract,have taken possession of property or any part thereof, or, if already in possession, should have continued in possession in part performance of the contract,and should have done some act in furtherance of contract.

3) The transferee should have performed,or should be willing to perform his part of contract.

4) The right of any other subsequent transferee for consideration without notice should not be affected.

 If all the above four conditions co-exist, inspite of the fact that the instrument of transfer has not been completed in the manner prescribed therefor by law that is where it is not attested though required to attested, the transferor or any person claiming under him will be debarred from claiming any relief, in respect of property as against the transferee which is inconsistent with the terms of contract.

Sentence "contract though required to be registered, has not been registered,or" is omitted by amendment Act 2001,S 10 with effect from 24-9-2001.
Thus in view of this amendment, to claim benefit of doctrine of part performance, it is necessary to register agreement of sale.

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