What
is part performance?
Sale of an immovable property is an act of contract between
parties. Each party to the contract has definite duties to perform; the vendor
has to establish his title to the property, handover the title deeds and vacant
possession of the property at the time of registration. The purchaser has to
pay the consideration as agreed. Attend the registration office and help in
completion of registration formalities. The vacant possession of the property
is handed over to the purchaser at the time of registration. But in certain
cases, the vendor hands over the vacant possession of the property to the
purchaser pending registration of sale deed. This is called part performance.
Whether
part performance is recognized and what are the rights of the purchaser?
Section 53 A of Transfer of Property Act recognizes part
performance. The purchaser who gets possession of the property under terms of
contracts gets equitable rights. The seller who puts the purchaser in
possession or anybody claiming under are debarred from enforcing their claim
against the purchaser or anybody claiming under purchaser. The seller cannot
enforce eviction against the purchaser, once he has put him in possession of
the property. The purchaser can continue and enjoy the possession of the
property even though the sale deed is not executed and registered. Section 29
of Registration Act, recognizes the part performance.
What
are the requirements of part performance?
Section 53 A of Transfer of Property Act stipulates certain
conditions ;
1. It must be a contract for transfer of immovable property
for consideration.
2. It must be in writing.
3. It must have been signed by the seller or his authorized
agents.
4. The terms of contract shall be clear, should be
ascertainable with reasonable care with certainty, the act of part performance
should also be part of the contract.
5. The vendor in pursuance of the contract should have put
the purchaser in possession of the property. The purchaser should have taken
the possession and if already in possession shall continue to be in possession.
6. The purchaser has done some act like payment of
consideration in pursuance of the contract or willing to perform his part of
contract.
Whether
the equitable right of the purchaser is enforceable against third party?
The equitable right is available only against the seller or
anybody claiming under him. It is not enforceable against a party who has
purchased the property for consideration and who has no knowledge of contract
or act of part performance.
Whether
the act of part performance apply to the gifts?
The applicability of part performance has two important
ingredients, the existence of written
contract, and payment of consideration. The transferee should be a
transferee for consideration.
In case of gifts there is neither sale contract nor
consideration. The essence of the gift is transfer of property without
consideration. As such the doctrine of part performance is applicable to gifts.
When
the doctrine of part performance is not available ?
When the person who desires to invoke the doctrine of part
performance is not the signatory to the agreement or the consent party nor the
recitals show that the agreement was entered into with the consent of such
person, he cannot seek protection under the doctrine of part performance since
there is no privity of contract between the parties.
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