vustudents
08-29-2012, 11:20 PM
1. Introduction:
Doctrine of part performance is regarded a exception to the general rule as laid down in the registration act that a document relating to an immoveable property of value of Rs. 100 or upwards has to be compulsorily registered. it is founded on the English rules of equity.
2. Relevant provisions:
Sec. 53A transfer of property act.
3. Part performance:
Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has, in part performance of the contract taken possession of the property or any part thereof or the transferee, being already in possession, continues in possession, in part performance of the contract and transferee has act in furtherance of the contract and transferee has performed or is willing to perform his part of the contract then not withstanding that contract, though required to be registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for time being enforce, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person claiming under him shall be debarred from enforcing against the transferee and person claiming under him any right in respect of property of which the transferee has taken or continue in possession other than a right expressly provided by the terms of the contract.provided that noting inn this section shall effect the right of a transferee for consideration who has no notice of the contract or of part performance thereof.
4. Object:
PLD 1961 Kar. 53
The main object of Sec,. 53A is to protect ignorant transferee who have taken possession or spend money in improvement relying on document which are ineffective as transfers or on contracts which can not be proved for want of registration.
5. Essentials:
Following are essentials of part performance.
(i) Contract for transfer of immoveable property:
There must be contract for transfer of immoveable property.
(ii) Valid contract:
The contract must be valid.
(iii) Consideration:
There must be consideration for the contract to transfer the immoveable property.
(iv) Writing and signature:
The contract must be in the writing and signed by the contractor himself or signed on his behalf.
(v) Certainty of terms:
The contract or instrument of transfer must be such as to enable the court to ascertain there from with reasonable certainty the term of the contemplated transfer.
(vi) Possession:
The transferee must have been put into possession of the property in part performance of the contract and if he was in possession of property from before he must have continued in possession in part performance of the contract and must have been done some act in furtherance of the contract.
(vii) Willingness of transferee to perform his part of contract:
The transferee must have willingness to perform his part of contract.
6. Conclusion:
To conclude I can say that part performance as laid in Sec. 53-A of transfer of property act is exception to the general rule embodied in the registration act. the effect of Sec. 53-A is to relax the strict provisions of the transfer of property act as well as registration act.
Doctrine of part performance is regarded a exception to the general rule as laid down in the registration act that a document relating to an immoveable property of value of Rs. 100 or upwards has to be compulsorily registered. it is founded on the English rules of equity.
2. Relevant provisions:
Sec. 53A transfer of property act.
3. Part performance:
Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has, in part performance of the contract taken possession of the property or any part thereof or the transferee, being already in possession, continues in possession, in part performance of the contract and transferee has act in furtherance of the contract and transferee has performed or is willing to perform his part of the contract then not withstanding that contract, though required to be registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for time being enforce, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person claiming under him shall be debarred from enforcing against the transferee and person claiming under him any right in respect of property of which the transferee has taken or continue in possession other than a right expressly provided by the terms of the contract.provided that noting inn this section shall effect the right of a transferee for consideration who has no notice of the contract or of part performance thereof.
4. Object:
PLD 1961 Kar. 53
The main object of Sec,. 53A is to protect ignorant transferee who have taken possession or spend money in improvement relying on document which are ineffective as transfers or on contracts which can not be proved for want of registration.
5. Essentials:
Following are essentials of part performance.
(i) Contract for transfer of immoveable property:
There must be contract for transfer of immoveable property.
(ii) Valid contract:
The contract must be valid.
(iii) Consideration:
There must be consideration for the contract to transfer the immoveable property.
(iv) Writing and signature:
The contract must be in the writing and signed by the contractor himself or signed on his behalf.
(v) Certainty of terms:
The contract or instrument of transfer must be such as to enable the court to ascertain there from with reasonable certainty the term of the contemplated transfer.
(vi) Possession:
The transferee must have been put into possession of the property in part performance of the contract and if he was in possession of property from before he must have continued in possession in part performance of the contract and must have been done some act in furtherance of the contract.
(vii) Willingness of transferee to perform his part of contract:
The transferee must have willingness to perform his part of contract.
6. Conclusion:
To conclude I can say that part performance as laid in Sec. 53-A of transfer of property act is exception to the general rule embodied in the registration act. the effect of Sec. 53-A is to relax the strict provisions of the transfer of property act as well as registration act.