Introduction The Doctrine of Past Performance, based on principle of equity, developed in England and was subsequently added to the Transfer of Property Act, 188 via the Amendment Act of 1!!" #n law of contracts $for e"g", a contract for sale%, no rights pass to another till the sale is complete &ut if a person after entering into a contract performs his part or does any act in furtherance of the contract, he is entitled to reimbursement or performance in c ase the other party drags its feet" The general ground upon which the doctrine is based is prevention of fraud" #t is said that where one party has e'ecuted his part of the agreement in the confidence that the other party would do the same, it is obvious that, if the latter should refuse, it would be a fraud upon the former to suffer this refusal to wor( to his h is pre)udice *nder this doctrine, if a person has ta(en possession of an immovable property on the basis of a contract then, he would not be e)ected from the property on the ground that the sale was unregistered and legal title had not been transferred to him" +or instance, there is a contract of sale of a piece of land between A and &" The contract is in writing, stamped, attested and duly e'ecuted but not registered by A who is the seller" &, who is the purchaser has performed or is willing to perform his part of contract, i"e" has paid the price or is willing to pay the same" n the basis of such contract & ta(es possession of the land" -ow, A sells the land through a registered deed to ." . having legal title of the land attempts to e)ect &" At this stage, & has no legal title, law may not protect his possession but, equity shall help him from being dispossessed" The doctrine of part performance is, therefore, based on the ma'im / Equity / Equity looks on that as done which ought to have been done. That is to say, equity treats the sub)ect matter of a contract as to its effects in the same manner as if the act contemplated in the contract had been fully e'ecuted, from from the moment the agreem agreement ent has been made, made, though though all the legal legal formal formalit ities ies $e"g", of registration% of contract have not been yet completed"
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History of the doctrine of part performance *nder the English law, the equity of part0performance was developed by the .hancery .ourts against the strict provisions of the tatute of +rauds, 1233" ection 4 of this Act provides that all agreements in respect of transfer of lands must be in writing" *nder this provision, the transfer of immovable property on the basis of oral agreement was illegal and transferee could not get title in the land" Although, the statute of frauds was enacted to avoid fraud being played in the transfer transfer of lands on oral agreements, agreements, but strict strict application application of this law created created great hardship hardship to such transferee" #n this way, a bona fide transferee who performed his part of contract by paying the price in full or in part and who had also ta(en possession of land could not get title merely because of the absence of legal formalities5 uch transferee were helpless and were being harassed" Equity then came to their help" .hancery .ourts, which were the courts of equity, held that part0performance by such transferees would ta(e their cases out of the tatute of +rauds" Thus, equity protected the interests of those transferees who held lands on the basis of oral contracts contracts and had performed performed their part of contract" contract" ince then, the equity equity of part performance performance developed further and passed through several stages for protecting the interests of the transferees who had performed their part in contract in good0faith and the transferor attempted to harass them on the ground of technical defect in the contract" PRINCIPLE LAID DOWN IN MADDISON ! ALDERSON
& was A6s servant" A had promised & a certain property as life estate, meaning & could en)oy the property during his life time" & served A for years upon this promised life estate" The will bequeathing such interest and property to & failed due to want for proper attestation" After A died, one of his heirs brought action to recover the property from &" #t was held that the act of part performance could not be proof of the contract since the performance was a condition precedent to the contract" The heir of A was thus able to recover the said property" 7ord elbourne said / In a suit founded on such part performance, the defendant is really charged upon the equities resulting from the acts done in execution of the contract, and not upon the contract itself. If such equities were excluded, injustice os a kind which the statute cannot be thought to have had in contemplation, would follow”.
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Part Performance in India "efore #$%$ &efore1!!, the application of English equity of part performance was neither certain nor uniform" 9owever in 1!14, the Privy .ouncil in d. usa v. !ghore "umar #anguly$, held that the doctrine of part performance was applicable in #ndia based on the principle of )ustice, equity and good conscience" #n this case, a compromise deed $ra:inamah% was in writing, but not registered" According to the deed, certain lands were divided between the parties who had ta(en possession of their respective parts of the land" The parties remained in possession for many years and about 4; years later, the heirs of the parties repudiated the compromise deed on the ground that it was not registered" The privy council applied the doctrine English equity of part performance and held that although the ra:inama was unregistered but, since it was in writing, it was a valid document and could not be repudiated" This decision by pass the provisions of #ndian
A was first enacted in 1!! by the Transfer of Property $Amendment% Act 1!!, and imports into #ndia a modified form of equity of part0performance as developed in England in addison" The enactment of the section sets at rest the considerable uncertainty prevailing in #ndian law as can be seen by three decisions of the Privy .ouncil" =ection =>A of the Transfer of Property Act, 188 see(s to protect the prospective transferees by allowing them to retain the possession over the property, against the rights of the transferors, who after the e'ecution of an
1 $1!14% 4 .al" 8;1/ A#< 1!14 P. 3/4 #nd App 1 2 AIR 1931 PC 79 3 AIR 1934 PC 235 4 $188>% 8 App .as 423" Page | 3
incomplete instrument of transfer, fail to complete it in the manner specified by law, without there being any fault on part of the transferees" This section therefore provides for a partial importation of the English doctrine of part performance" #t furnishes a statutory defense to a person who has no registered title in his favor to maintain possession"
5 ?ahomed ?usa v" Aghore @umar anguli, $1!14% #7< 4 .al 8;15 Ariff v" Badunath , A#< 1!>1 P. 3!5 ?ian Pir &u' supra note "
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Amendment of Section &'(A )ransfer of Property Act and other enactments An amendment has been made in ection =>0A of the Transfer of Property Act by the 0A" C 1" #n ection =>0A, para 4 of the Transfer of property Act the words the contract, though required to be registered, has not been registered, or omitted " " #n section 13 of the 0A of the Transfer of Property Act, 188 shall be registered if they have been e'ecuted on or after the commencement of the 0A" >" #n ection 4! of the 0A of the Transfer of property Act, 188 $4 of 188%, shall be omitted. 4" The provisions of this Amending Act came into force with effect from 40;!0;;1" This Amendment Act is not retrospective"
Le*a+ Effects Of )he Amendin* Act In Section &'(A
#n para fourth of ection =>0A of the Transfer of Property Act, the words the contract though required to be registered, has not been registered has now been omitted. This may mean to suggest that non0registration of any contract to transfer for consideration is not any relevant factor $i"e", not necessary% for the application of part0performance under this section5 and, the defence of part0performance is available also on the basis of an un0registered document" &ut, this
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is not the case" The same amending act has simultaneously amended ection 13 and ection 4! of the 0A should be read together with amendments in ection 13 ection 4! of the 0A of the T"P Act5 and, if such documents are not registered then they shall have no effect for the purposes of ection =>0A of the Act" Thus, an obvious meaning of these amended provisions of ection =>0A of the T"P Act and that of ection 130A of the 0A shall not be applicable and the defence of part0performance cannot be available on the basis of un0registered documents which are e'ecuted on or after 4";!";;1, the date of enforcement of the amending Act 48 of ;;1" Therefore, the contract of the transfer of immovable property with consideration as provided in ection =>0A is now compulsorily registrable document" +urther, it is to be noted that by inserting ection 130A, the
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Essentia+ E+ements
A valid contract Has done some act in furtherance to the
Essentia+ E+ements
Contract should be in writing and ascertainable
Willingness of Performance Possession by Transferee or Continuance of Possession
The upreme .ourt in -ambahu amdeo #ajre v. arayan (apuji/ , held that the doctrine of part performance aims at protecting the possession of such transferee provided that certain conditions are fulfilled" +ollowing are the essential elementsF mandatory conditions required to be fulfilled for the applicability of ection =>A/ i
*here must be a contract to transfer an immovable property for consideration/ The contract should be for the transfer of immovable property for consideration only" +or e'ample5 gift is a
6$;;4% 8 .. 214 Page | 7
transfer without consideration, thus the doctrine of part performance will not apply in those cases" The terms are ascertainable with reasonable certainity5 it must clearly show that there is a transfer of property under the contract"3 The transfer must be for consideration" ection =>0A is applicable where the contract is for sale or for lease" The section is applicable also to mortgages with possession" #t doesn6t applies to transfers made for gifts" ii
0ontract should be in writing and !scertainable and with -easonable 0ertainty/ #t was held in #ovind 'rasad 1ubey v. 0handra ohan !gniotri2 that contracts entered between should be in writing and
such that the terms of the contracts can be ascertained with reasonable
certainty" Thus if the terms of the contract cannot be ascertained with reasonable certainty then this section cannot be enforced" Ghere a tenant wanted to defend his possession on the ground that there was an oral agreement of sale with his landlord, the .ourt held that plea of part performance is not available to him because written contract is must for applicability of ection =>0A" #n ). 3eerabadra aiker v" )ambanda aiker ,4 the party claiming protection under ection =>0 A, could neither produce any written agreement nor any evidence of his possession over the suit property" The documents could not prove that he was ever ready and willing to perform his part contract" The ?adras 9igh .ourt held that he was not entitled to protection under ection =>0A against third party purchaser of the suit property" Griting alone is not sufficient" The contract must also be duly e'ecuted" That is to say, it should be signed by the transferor or by any other person on his behalf" The person who signs on his behalf must be a person who is authori:ed by him to sign the document" Therefore, it is necessary that the contract is either actually signed by the transferor or is signed by a person who has been specifically authori:ed to sign on behalf of the transferor and whose signature
7 Hamida v. Humer, AIR 1992 All. 316. 8 A#< ;;! ?P 1=! $D&% 9 AIR 2003 Mad. 19 Page | 8
can bind the transferor"
Important Case +a, Serandaya Pi++ai -! San.ara+in*am Pi++ai #/ 0AC)S / A contract was entered into by the plaintiffs and the first and the second defendant to
transfer an immovable property to the first defendant and that the first defendant, in consideration of the said contract so made for transfer of property, shall marry the second defendant" The said contract was made orally" The defendants were given the possession of the said property and the (ist to be given was filed in the name of the second defendant for the years 1!48 and 1!4!" 7ater the plaintiffs claimed bac( the said property saying that the gift was invalid as it was contrary to the ection 1> of the Transfer of Property Act and ection 13 of the A of the Act in the given case and circumstancesH 9E7D/ #t was said in the )udgment that as per the section, gift, along with sale, lease, mortgage and e'change require a written contract to ta(e place and that the contract should be for a consideration" .learly, there involves a consideration to be given for the property in a contract to sale, lease, mortgage, e'change and a gift" The present act ma(es writing of the contract necessary for the property of value of of the Act in case of gifts"
10$1!=!% ?ad 7B =; $=;2% Page | 9
In the present case, the promise to marriage was a consideration for the transfer of property which was taken as a consideration but since, the there only took place an oral transaction between the parties and not the contract in writing, thus, it falls within the ambit of )ection 4 of the !ct. *hus, it is neither a sale nor a mortgage, lease, exchange or a gift. 5ence, the present case could not be said to fall within the ambit of )ection 6+! of the !ct. iii 'erformance of 0ontract by *ransferee, *ransfer of 'ossession or 0ontinuance in 'ossession/ This requirements stipulates that the transferee either must have ta(en the possession of the property after the contract is made or if he is already in possession of the property, he must have continued in possession" #f the transferee has not ta(en the possession of the property, this section shall not be applicable" #t is to be noted that this section requires that the transferee Ihas ta(en possession6 of the property" #t is irrelevant as to whether the vendor himself has given the possession or not" Therefore, it is not necessary that the vendor himself should have delivered the possession of the property"11 The condition is that the transferee has ta(en possession in furtherance of or in part0 performance of contract" Ghere the transferee has once ta(en possession of the property, the fact that subsequently he lost that possession cannot deprive him of his rights under ection =>0A"1 The transferee need not be in possession of the whole property mentioned in the contract of sale" #f the transferee ta(es possession or continues his possession even on a part of that property, it is sufficient to give him the benefit of this section"1> iv
7illingness of performance8 The transferee should be ready and should be willing to perform his part of the contract for the applicability of the contract" ection =>0A is based on equity" Equity says that Ione who see(s equity must do equity6" Therefore, where a person claims protection of his possession over a land under ection =>0A, his own conduct must be
11 Nagar Khan v. Gopi Ram, AIR 1976 Pat. 83. 12 Achayya v. Venkata Sabha Rao, AIR 1957 AP 854. 13 Durga Prasad v. Kanhiya La, AIR 1929 Raj. 200. Page | 10
equitable and )ust" #t is an essential condition for the applicability of this section that the transferee must be willing to perform his part of contract" Equity of part0performance which is incorporated in this section cannot favour a transferee who is not ready and willing to do what is required from him" Accordingly, a vendee who has ta(en possession of the property, cannot protect his possession under this section if he is not willing to pay the price agreed upon" The transferee must himself be willing to perform his part of the contract, for no equities can arise in favour of a person who is not willing to perform his part of the contract" Accordingly, a person who has ta(en possession cannot resist dispossession if he is not willing to pay the price agreed upon" Gillingness to perform the part ascribed to a party must not be conditional" #n %acob 'rivate 9td. v" *homas %acob,$ the @erela 9igh .ourt held that such willingness in the conte't of ection =>0A of the T"P Act must be absolute and unconditional" #f the willingness is studded with a condition, it is in fact no more than an offer and cannot be termed as willingness" The court observed that where the vendee company e'presses its willingness to pay the amount provided the plaintiff clears his income0ta' arrears, there is no complete willingness and such a conditional willingness is not sufficient to arm the company with the shield provided by ection =>0A of the T"P Act" Important case +a, Srimant Shamrao Surya-anshi and Anr! -! Prah+ad 1hairo"a Surya-anshi #& 0AC)S / #n the present case, the respondents e'ecuted an agreement of sale of an agricultural
land in favour of the appellant" The appellants in pursuance of the agreement got the possession of the property" After the e'ecution of the agreement, the appellant came to (now that the respondent is negotiating for sale with another respondent for which the appellant filed a suit" The appellant filed for in)unction and an in)unction order was passed in favour of the appellant, yet the respondent sold the land through a registered sale deed" The transferee did not bring any suit within the limitation period for specific relief"
14 AIR 1995 Ker. 249. 15$;;% > .. 232 Page | 11
#*E/ Ghether the appellant can defend his possession over the land by way of Part Performance under Transfer of Property Act even after the suit for specific performance for a contract to sale is barred by limitationH 9E7D/ Even if the limitation period was over, a person can obtain possession of property in part performance of a contract to sale5 the transferee can defend his possession in case filed by the transferor" but this can only be done is the transferee can well prove that he has done some act in furtherance of the agreement or the contract or is willing to perform his part of the act in furtherance of the contract" This was interpreted so as there was not e'pressly said that the plea of part performance cannot be ta(en once the time limit for filing a suit for specific performance is e'pired" #n this case, all the requirements of Part Performance were complied with and the transferee was able to prove that he was willing to perform his part of the contract which fulfils the essential of performing some act in furtherance of a contract, either in ta(en possession or in continued possession of the property" The court in this case allowed the appeal as it was not disputed that the appellants were willing to perform their part of the contract" *he court in this case has rightly applied the doctrine. 5ere the appellant was able to prove the willingness to perform his part of the contract which is an important essential. )ince, along with this requirement all other requirements were also proved. 5ence, it was the right of the appellant to have the defence of the doctrine which the court provided.
v
)ome !ct in furtherance of contract.: Ta(ing possession is not the only method of part0 performance of contract" #f the transferee is already in possession of the property then, after the contract of transfer, he has to do some Ifurther act6 in part0performance of that contract" #n order to attract the provisions of ection =>0A, if the defendant has been in possession of property, he must have done something more in pursuance of the contract" +or e'ample, where transferee was already in possession of the property, payment of an increased rent under the terms of new agreement or, part0payment of the price where property is agreed to be sold to a mortgagee in
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poseesion, is a further act in part0performance of the agreement" #t is also necessary that the act done is only in furtherance of a pre0e'isting valid contract" There must be direct co0relationship between the contract and Iact6 done, in its furtherance" There must be a real ne'us between the contract and the acts done in pursuance of the contract and must be unequivocally referable to the contract" Anything done in furtherance of the contract postulates the pre0e'isting contract and the acts done in furtherance thereof" Therefore, the acts anterior to the contract or merely incidental to the contract would hardly provide any evidence of part performance"
Important Case +a, 1a"u Mur+idhar -! Souda*ar Mohammad A"du+ 1ashir and Anr #2
+A.T/ #n this case, an unregistered agreement of sale was e'ecuted by the mortgager, Plaintiff in favour of the mortgagee, Defendant who was in possession of the property and would become the owner of the property if his name could be mutated into the mutation register of the municipality" The mortgager himself, in furtherance of the agreement to sale made an application for mutation to municipal authorities and mortgagee6s name was registered as the owner of the property" #*E/ .an the ?ortgagee defendant avail the defence of Part Performance in this caseH 9E7D/ An act should be done by the transferee in furtherance of the contract to transfer of property in order to avail the defence of part performance" ince, the mortgagee himself made an application for the mutation of the documents to the municipal authority and that the mortgagee6s name was duly registered as the owner of the property, it was thus an act done in furtherance of the agreement to sale" ince, all the requirements of the part performance were fulfilled and that it was clear that the mortgagee had done some act in furtherance of the agreement to sale, thus, the court said that the mortgagee can avail the defence of part performance"
16A#< 1!3; ?ys ;> Page | 13
The .ourt held that this act was sufficient enough to protect the mortgagee under ection =>A of the transfer of property Act, 188 as there was some act done in furtherance of the contract to sale which was sufficient enough to put the mortgagee on the protection" Thus, the court in this case thus, dismissed the petition" !s per the provision, there must be some act done in furtherance of the contract, only then shall the defence of part performance can be availed. !nd, in this case, the mortgagee by filing for the mutation of the documents in his name had done an act, sufficient enough to prove that the act so done was in furtherance of the contract. *hus, the court by providing him relief of protecting his right to possession over the property had right done the justice. Important Case La, 3o-indrao Mahadi. -! De-i Sahai #4
The mortgagee in this case failed to prove that he did any act in furtherance of the contract or that the mortgagee was willing to perform his part of the contract either of which is an essential to prove the case in favour" The .ourt held that the mortgagee was not entitled to the benefit under ection =>A and that he could not possess that property" 0AC)S / The original Plaintiff 1, ardar ovendrao ?ahadi( $?ortgagor%, mortgaged a property
to sole defendant Devi ahai $?ortgagee% at some rate of interest annually" The mortgage was a mortgage with possession" The mortgagor on ct" =, 1!4= served a notice to the defendant to show the full accounts of the mortgage, of which the mortgagee failed to provide" ubsequently, some negotiations too( place between the two and the property was sold to the mortgagee but the sale deed for the same could never be registered" n the other hand, the mortgagor sold the property to the Plaintiff , yarsilal $ubsequent purchaser% via a registered sale deed" Thereafter, both the plaintiffs filed a suit against the defendant for the redemption of the property" The mortgagee at that time was already in possession of the property" #*E/ .an the mortgagee gain the benefit of ection =>A of the ActH
17A#< 1!8 . !8! Page | 14
9E7D/ The .ourt held that the mortgagee was not entitled to the benefit under ection =>A and that he could not possess that property" This was due to the fact that the mortgagee could not prove that he has performed any act or is willing to perform any act in furtherance of the contract" ince, the mortgagee was already in possession of the property, the mere possession of the property would render any result to the transferee" 9e needed to prove something independent of the mere possession of the property and an act done in furtherance of the contract, as the court shall not ta(e any the mere act of continuing in possession of the property as evidence enough to provide the defence to the transferee" The mortgagee could not prove that he did any act in furtherance of the contract, thus he was held not entitled to possession over the property" In this case, the judgment set a good precedent over when the transferee can avail the right over the property. ere already in possession of the property is not enough as the person may be in possession of the property pursuant to any other prior encumbrances. *he mere possession of the property is enough and a strong evidences when the mortgagee or the transferee is for the first time taking the possession of the property and not when he is already in possession of the property. *hus, an independent act than a mere possession of property was required to proved in such case. In the present case, the mortgagee failed to do so and thus the decision of the court to not to provide him with the defence under )ection 6+! of the !ct was justified.
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Nature Of )ransferee5s Ri*hts 6nder Section &'A •
o title or Interest in the 'roperty0 ection =>A does not confer any title or interest on the transferee in the property in his possession" #t only specifies where the conditions of this section are fulfilled, the right of the transferee in respect of the property in the possession will be protected" The transferor or anyone claiming under him will not be able to evict from the property because he can raise the plea of part0performance and this section will come for his protection"
•
o -ight of !ction/ ection =>A can be only used for defence" #t does not give any right of action to the transferee" The transferee can only defend his eviction in case he fulfils the conditions of this section" #n #ndia, the equity of part0performance is passive equity, it can be used only as a shield and not as a sword" *nder English law, the equity of part0performance is also an active equity and gives to the transferee a right of action against his evictor" The scope of ection =>0A is, therefore, limited because no right of eviction is available to transferee"
•
*ransferee, whether 'laintiff or 1efendant; 0 This section confers on the transferee a right to defend his possession, whether as a defendant or as a plaintiff, it is not relevant" #t was held according to the various 9igh .ourts in Allahabad, &ombay, Andhra Pradesh that the transferee may also be a plaintiff if it is necessary to protect his possession" 18 &ut, according to the
18 Ram !handra v. "ahara# Kumar, AIR 1939 All. 611; Achayya v. Venkata Subbarao, AIR 1957 AP 854. Page | 16
protect his possession only as Idefendant6"1! 9owever, the correct view on this point would seem to be that this section gives to the transferee only the right to defend his possession" o, the main point in this regard is his defence5 it is irrelevant in what capacity he does so" •
7ho can claim 'rotection against 7hom; C The protection under the section can be availed of by the transferee or any person claiming under him against his transferor or any person claiming under him but not against a third person with whom he does not have a privity of contract"
Difference 1et,een En*+ish La, And Indian La, On Part Performance ection =>A has only partially incorporated the English doctrine of Part0performance" The points of difference between the two are discussed below/ •
*nder the English law, even an oral agreement is sufficient to attract the application of this doctrine but in #ndia, the contract to which this section applies must be in writing and signed by the transferor"
•
*nder the English law, this doctrine can be used both as a sword and a shield, i"e" it can be used for enforcing the right as well as defending the right" 9owever in #ndia, it can be used only as a shield, i"e" to defend the right of the transferee"
•
#n English law, doctrine of part0performance give rise to an equity but in #ndian law, it gives rise to a statutory right of defence"
•
*nder the English law, the doctrine of part0performance creates a title in the transferee whereas under the #ndian law, it does not create any form of title in the transferee"
This ection does not confer title on the defendant in possession5 and he cannot maintain a suit on title"; The upreme .ourt has approved this principle" Thus it can be concluded that this section does not create a title in the defendant but merely acts as a bar to the plaintiff in asserting
19 "otia v. $as%ant Singh, AIR 1964 Raj. 11; Amrao Singh v. Sanatan Dharma Sabha, AIR 1985 P& 195. Page | 17
his title" #t is limited to the cases where the transferee has ta(en possession, and against whom the transferor is debarred from enforcing any right, other than that mentioned in the contract" 9owever, it is only in a case of suit for specific performance that the part performance assists plaintiff" A transferee who has come into the possession of the property in part performance of a written agreement can continue in possession, if he is ready and willing of perform his part of agreement" #n such a case, it is not necessary that the transferee should have filed a suit for specific performance within the limitation period prescribed for a suit for specific performance"
Pro-iso 7 )ransferee 0or Consideration Without Notice The proviso to this ection protects the rights of a subsequent transferee for value without notice of previous transferee6s rights of part0performance" Therefore, this ection does not affect the rights of transferee for consideration who has no notice of the contract of sale or of part0 performance" +or e'ample0 A who is owner of a land contracts to sell it to &" The contract is unregistered and in part0performance of this contract & ta(es possession of this land" *nder this section, the transferor or any other person cannot dispossess & from the land" &ut, if A sells the land to . through a duly e'ecuted and registered sale0deed and . has not the least (nowledge of &6s rights of part0performance then, ection =>0A shall not apply" And, &$previous transferee% cannot resist $subsequent transferee% from evicting & and ta(ing possession of the land" The purpose of the proviso is to defeat the claim which would otherwise, have succeeded under the main part of this ection"1 The question of proviso does not arise until and unless the claimant has substantiated his claim under the main part of this ection" The proviso to the
20 "-"&aner)ee v" @uchwar 7ime tone .o" 7td., A#< 1!41 P. 18" 21 7# B
Page | 18
ection saves the right of a transferee for consideration who has no notice of the contract or its part0performance" The burden for proving that he is a transferee for consideration without notice is on the transferee" This was so held prior to the en actment of ection =>A" Important Case +a, S! Par-arthamma -! A! Srini-asan %%
+A.T/ The appellant in this case was the rentholder of the property and thereafter he entered into an agreement with the landlord for the purchase of the property, thereby becoming a prospective buyer of the property" ince, he was already living in that property or was in the possession of that property, the landlord0tenancy relationship superseded to the prospective buyer0seller relationship where the appellant became the buyer in possession of that property" &ut the disputed fact remained of the agreement to sell made between the original landlord and the tenant" The original landlord in 1!8> sold the land to the respondent via a registered sale deed and transferred their right, title and interest in the property to the respondent including the suit premises" Thus, in this case, the respondent here became the subsequent transferee and as per the law under ection =>A of the Act, nothing in the section shall affect the rights of the transferee for consideration who has no notice of the contract or the part performance thereof" Thus, the respondent being the subsequent transferee has the right to protect his property rights under the section" The respondent in this case claimed himself to be the owner0landlord of a property see(ing eviction of the appellant which the respondent claimed that he is the tenant of the said property, and got eviction by the A of the ActH 9E7D/ The court in this case dismissed the petition on the following grounds/ 1
Ghen the appellant filed a suit for in)unction, the suit was dismissed in its entirety" Along with the suit for in)unction dismissed but also the alternative suit filed for specific performance and monetary relief was also dismissed"
22 $;;>% 4 .. 3;= Page | 19
econdly, he could not prove that he was in possession of the property in part performance of the contract" Ghen a person who is already in possession of the property enters into a contract to purchase the property, he in order to protect his benefit as the possessor of that property must show that he has done some act in furtherance of the contract and that the act must be effective from that day must be consistent with the contract alleged"
>
Thirdly, with his suit for specific relief getting dismissed, it could not be said that the he performed or was willing to perform his part of the contract" This is so as the appellant had not disowned his character as tenant in the suit premises and that there was no evidence or findings that the appellant was in possession of the property pursuant to the contract to sale" Also the appellant did not pursue the matter further"
4
+ourthly, the respondent who became the subsequent transferee had no notice of contract of part performance" As stated in ection => of the Act, the rights of the transferee are to be protected and ta(en care of" #n no case can the transferee6s rights over the property be affected if he had no prior notice of the contract or the part performance" #n this case, the transferee was a bona fide purchaser and had no notice of the contract to sale of the property"
Thus, the 9igh .ourt upheld the decision of the
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1i"+io*raphy 1OO8S 9 S)A)6)ES
ingh Avtar $Dr"%, *extbook on *he *ransfer of 'roperty !ct , >rd ed", *niversal 7aw Publishing .o", -ew Delhi, ;1>"
Tripathi, " P" $Dr"%, *he *ransfer of 'ropert !ct , 13th ed", .entral 7aw Publications, Allahabad, ;11"
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