Source: Supreme Court 

Why in News? 

A bench of Justice JB Pardiwala and Justice R Mahadevan laid down the conditions requisite for invoking Section 53A of Transfer of Property Act, 1882.               

• The Supreme Court held this in the case of Giriyappa & Anr v. Kamalamma & Ors. (2024). 

What was the Background of Giriyappa & Anr v. Kamalamma & Ors. Case?  

• The respondents instituted a suit seeking declaration of title and recovery of possession of the suit-scheduled property. 
• The Trial Court decreed the suit in favor of the respondents. 
• The petitioners filed a Regular First Appeal, which was dismissed. They then filed a Regular Second Appeal which was also dismissed by the High Court. 
• The High Court framed a key legal question regarding whether the defendants could claim protection under Section 53A of the Transfer of Property Act, 1882 (TPA) based on an unregistered sale agreement. 
• The High Court observed the following: 
  • The petitioners failed to prove the existence and execution of the alleged sale agreement. 
  • The property in question was shown to be in the lawful possession of the respondents. 
  • The findings of the lower courts were consistent with the evidence presented. 
• The petitioners (original defendants) filed this Special Leave Petition (SLP) challenging the dismissal of their Second Appeal by the High Court of Karnataka. 

What were the Court’s Observations?  

• The Court first of all discussed the conditions to be fulfilled for invoking the remedy of part performance under Section 53 A of TPA. 
• The Court observed that Section 53A has been added to act as a shield for the prospective transferee who is holding possession of the property under the contract of sale. 
• The main question to be determined here was whether the relief of part performance can be granted or not. 
• The Court observed that the plaintiff has failed to show that the respondent has executed a sale agreement in it’s favor and would not entitle him to claim part performance of the contract. 
• Thus, the petition was dismissed in this case.

What is Section 53A of TPA?

• Section 53A of TPA provides for part performance of contract. 
• The purpose for introducing Section 53 A in TPA is to partly set right the conflict of views in this country. 
• Principally, it was inserted however for the protection of ignorant transferees who take possession of or spend money on improvements relying on documents which are ineffective as transfers or on contracts which cannot be proved for want of registration.  
• The effect of this section is to relax the strict provisions of the Transfer of Property Act and the Registration Act in favor of transferees in order to allow the defense of part performance to be established. 
• Section 53-A is an exception to the provisions which require a contract to be in writing and registered and which bar proof of such contract by any other evidence. 
• The exception must therefore be strictly construed.

What are the Conditions Requisite for Invoking Section 53A of TPA? 

• The conditions requisite for invoking Section 53 A of TPA are as follows: 
  • There is a contract in writing by the transferor for transfer for consideration of any immovable property signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. 
  • 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. 
  • The transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract. 
• Thus, the elements of Section 53 A of TPA: 
  • Existence of an Agreement: 
    • There must be a valid agreement between the parties for the transfer of property, even if it is not in writing or registered. 
  • Payment of Consideration: 
    • The transferee must have paid or agreed to pay the consideration, either fully or in part, as per the terms of the agreement. 
  • Taking Possession or Making Improvements: 
    • The transferee must have taken possession of the property or performed substantial acts of improvement on it based on the agreement.

What are the Case Laws on Section 53A of TPA?

• Probodh Kumar Das v. Dantra Tea Company Limited & Others (1939): 
  • The Privy Council in this case laid down the law that Section 53 A of Transfer of property Act, 1882 (TPA) does not confer any right of action on a transferee in possession. 
  • The Court was in agreement with the view that the right conferred by Section 53 A is a right available only to the defendant to protect his possession. 
  • It does not confer any active title on the transferee.
• Arun Kuamr Tandon v. M/s Akash Telecom Private Limited (2010): 
  • The Supreme Court in this case held that in order to give benefits of Section 53 A of TPA the document relied upon must be a registered document.  
  • Any unregistered document cannot be relied upon or taken into evidence in view of Sections 17 (1A) read with Section 49 of the Registration Act. 
  • Thus, the benefit of Section 53 A of TPA can be given if and only if the alleged agreement to sell is registered and it satisfies the requirements of Section 17 (1A) of Registration Act, 1908.
• Shrimant Shamrao Suryavanshi And Another v. Pralhad Bhairoba Suryavanshi (d) by LR’s And Ors. (2002): 
  • In this case the issue to be determined by the Court was whether the plaintiff was entitled to protect their possession in pursuance of part performance under Section 53 A of TPA when the suit for specific performance of contract is barred by limitation. 
  • It is to be that Section 53 A nowhere prohibits the party from taking this plea of defence. 
  • The necessary conditions for the purpose of applicability of Section 53 A are: 
    • There must a contract to transfer for consideration any immovable property. 
    • The contract must be in writing signed by the transferor. 
    • The writing must be in words from which terms necessary to construe transfer can be ascertained. 
    • The transferee must in part performance take possession of the property, or any part thereof. 
    • The transferee must have done something in furtherance of the contract. 
    • The transferee must have performed or be willing to perform his part of the contract. 
  • The Court therefore held that if the conditions above are fulfilled the law of limitation does not come in way of a defendant taking the plea under Section 53 A of TPA.  
  • Further, the Court held that the law of limitation is not applicable to the plea taken in defense unless there is an express provision in the statute. The law of limitation applies to suits and applications, and it does not apply to defence taken in suits.