Friday 13 November 2015

FAQ ON PART PERFORMANCE


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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