Monday 21 September 2015

PART PERFORMANCES

PART PERFORMANCES

Sale of an immovable property is an act of contract between the 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.

Section 53 A of Transfer of Property Act stipulates certain conditions;
1.It must be 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 authorised 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.

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.

The applicability of part performance has two important ingredients, the existence of written contract and payment of consideration.The transfer should be a transfer 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 not applicable to gifts.

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