Contract - Its Registration and the Defence of Part-Performance
Avnish Mittal, Advocate
Punjab & Haryana High Court, Chandigarh
Email Id : firstname.lastname@example.org
Date : 02/06/2020 - Location : Office cum Residence: House No. 115, Sector 16-A, Chandigarh, Phone No. 9872000579
Contract - Its Registration and the Defence of Part-Performance"A contract is only as good as the people signing it." Contract Act is one of the principal statutes governing all the contractual relations, not only in the business world, but also words and promises that form a part of one's daily routine. It is one of the most important legislations ever drafted by Britishers with an identical basic principle throughout the world, where they ruled. Before the said Act was brought on the statute book, the contractual relationship between people were governed by the personal customary laws of different communities - like different laws each for Christians, Greeks, Romans, Hindus and Muslims. Barter was also one of the common recognised modules for completing the business transactions. Also, prior to the Contract Act, Britishers had their own law to govern to, but because of the existence of so many divergent laws, it created confusion for implementation of a contract. Therefore, with a view to promote the smooth business transactions, Contract Act was enacted. The Indian Contract Act, 1872, regulates the law relating to contracts in India, and is the key Act formulating contract law in India. The Act is based on the principles of English Common Law. It is applicable to all the States of India and determines the circumstances in which promises made by the parties to a contract shall be legally binding. Under Section 2(h), the Indian Contract Act defines a contract as an agreement which is enforceable by law. A proposal on the basis of a trust becomes a promise and further cumulates into a valid enforceable contract. Section 2 of The Indian Contract Act, 1872, lays down:
(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;
(b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise;
(c) The person making the proposal is called the "promisor", and the person accepting the proposal is called the "promisee";
(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;
(e) Every promise and every set of promises, forming the consideration for each other, is an agreement;
(h) An agreement enforceable by law is a contract;Thus, whenever a proposal completes the parameters of becoming an enforceable legal agreement, it is called a contract. A contract may be, for the transfer of property, movable or immovable; service; or to complete anything that has a legal backing, and is not immoral or illegal. A property, movable or immovable, is transferred from one person to another, under different situations and various circumstances and for different values. The transfer may be a gift, an inheritance or an asset acquired by paying full value. A contract may be in writing or oral, but if it fulfils the parameters of being a valid contract, the same is duly enforceable. It may also be considered to be a valid contract even if it is signed by the vendor alone, and not by the purchaser who accepted it, the said principle of law was recognised by the Supreme Court in Alka Bose v. Parmatma Devi & Ors. 2009(2) SCC 582 and again in K. Nanjappa (Dead) By Lrs. v. R.A. Hameed alias Ameersab (Dead) by Lrs. and Another 2015 AIR (SC) 3389. The transfer of movable goods and services was regulated to an extent by the Indian Contract Act, 1872. When a movable property is transferred inter-vivos, (between two living persons), Sales of Goods Act, 1930 comes into play (which was bifurcated from the main enactment i.e. Indian Contact Act, 1872). When an immovable property is transferred from a living person to another living person(s), the Transfer of Property Act, 1882, comes into play. The Transfer of Property Act, 1882, (TPA) is an Indian legislation which regulates the transfer of property in India. It contains specific provisions regarding what constitutes a transfer and the conditions attached to it. It came into force w.e.f. 1st of July, 1882. According to the Act, 'transfer of property' means an act by which a person conveys the property to one or more persons, or himself and one or more other persons. The act of transfer may be done in the present or for the future. The person may include an individual, company or association or body of individuals, and any kind of property may be transferred, including the transfer of immovable property. Section 7 of the Transfer of Property Act lays down:
7. Persons competent to transfer.-Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.Thus, though a contract may be entered into between the parties to transfer the property, yet it has to be given legal transfer in the form of lease, sale, gift etc. under the provisions of Transfer of Property Act. However, there may be occasions whereby one party to a contract is ready and willing to perform his part of the contract, and the other party is evasive or is guilty of breach. In those circumstances the party wanting an enforcement of the contract can seek legal protection by filing a civil suit under the provisions of Specific Relief Act. Yet again, there may be a situation where a party to a contract have done some act in furtherance of his contractual obligations, like delivery of possession of immovable property on receipt of earnest money. In such like situations Section 53A of the Transfer of Property Act comes as a protective shield to the person, who has taken the possession of the immovable property in furtherance of the contract, and has performed his part of the contract or is ready to perform his part of the contractual obligations. It was held by the supreme court in Delhi Motor Company v. UA Basrukar AIR 1968 SC 794 that any right available under 53A is available only as a defence and does not create a title in the defendant and he cannot maintain a suit on title. It was further held in Chetak Constructions Ltd v. Om Prakash AIR 2003 MP 145 that "it is a weapon of defence and not attack". The Doctrine of Part Performance, based on principle of equity, developed in England and was subsequently added to the Transfer of Property Act, 1882 via the Amendment Act of 1929. In law of contracts (for e.g., a contract for sale), no rights pass to another till the sale is complete But if a person after entering into a contract performs his part or does any act in furtherance of the contract, he is entitled to reimbursement or performance in case the other party becomes dishonest and is guilty of non performance or breach. This section was first enacted in 1929 by the Transfer of Property (Amendment) Act, 1929, and import into India a modified form of the equity of part- performance as developed in England in Maddison v. Alderson (1883)8 App Cas 467. The enactment of the section sets at rest the considerable uncertainty prevailing in Indian Law, as can be seen by three decisions of the Privy Council in Mohomed Musa v. Aghore Kumar Gangoli (1914) ILR 42, Ariff v. Jadunath AIR 1931 PC 79 and Mian Pir Bux v. Sardar Mohomed Tahar AIR 1934 PC 235. The section has been described by the Privy Council, and the Supreme Court, as a partial importation of the English equitable doctrine of part performance. By virtue of this section, part performance does not give rise to an equity, as in England, but to a statutory right. Though an oral agreement to sell or a contract is duly recognised by law in India, yet in order to take the defence of part-performance under section 53-A of the Transfer of Property Act the same is required to be in writing. This right is more restricted than the English equity in two respects, (1) there must be a written contract, and (2) it is only available as a defence. Section 53A of TPA reads:
Part performance.-Where any person contracts to transfer for consideration any immoveable 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 has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2 where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.The provisions of Section 53A, aforesaid, envisage situations where under a contract for transfer of immovable property, the purchaser has paid the price, and has taken possession of the property, even though the transfer deed or conveyance has not been registered. In such cases the transferor is debarred from agitating his title to the property against the purchaser. The essential conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A are:
(1) There must be a contract to transfer for consideration of any immovable property;
(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
(4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;
(5) the transferee must have done some act in furtherance of the contract; and
(6) the transferee must have performed or be willing to perform his part of the contract.If these conditions are fulfilled, then in a given case there is an equity in favour of the proposed transferee, who can protect his possession against the proposed transferor, even though a registered deed conveying the title is not executed by the proposed transferor. In such a situation equitable doctrine of part performance provided under Section 53-A comes into play and provides that the transferor, or any person claiming under him, shall be debarred from enforcing against the transferee, and persons claiming under him, any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. However, any transfer of rights with regard to anything that is valued for more than Rs 100 requires registration under the provisions of The Registration Act, 1908. Section 17 of The Registration Act lays down:
17. Documents of which registration is compulsory
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:]
PROVIDED that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rent reserved by which do not exceed fifty rupees.
(2) Nothing in clauses (b) and (c) of sub-section (1) applies to-
(i) any composition-deed; or
(ii) any instrument relating to shares in a joint Stock Company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such company; or
(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a court 13[except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding;] or
(vii) any grant of immovable property by government; or
(viii) any instrument of partition made by a revenue-officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or
(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a civil or revenue-officer.
[Explanation: A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.]
(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.However, with the passage of time and development of various legal complications, the said Section was amended by an Act No. 48 of 2001, w.e.f. 29.9.2001, whereby section 17 (1A) was incorporated which reads as:
17(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.Although, after the amendment in the Registration Act, it has become incumbent upon a party to a contract, who wishes to take the plea of 53A as part performance of his contract to have a registered agreement, yet, since a mere agreement to sell did not convey any title and as such did not require any registration, originally, a contract/agreement that satisfies the ingredients of Section 53A of 1882 Act was not compulsory registrable, whether under the Transfer of Property Act or the Indian Registration Act, 1908. The said inconsistency led to two conflicting judgements, in the High Court of Punjab and Haryana, when a question arose as to whether in the absence of registration of a contract, which is not compulsorily registrable, whether a suit for specific performance of a contract is maintainable. It was held in Gurbachan Singh v. Raghubir Singh 2010 (5) RCR (Civil) 737
"15. Thus, the substantial question of law involved in this appeal is as to "whether a suit for specific performance can be decreed on the basis of an unregistered agreement to sell in view of Section 17(IA) of the Indian Registration Act, 1908 (for short the 'Act of 1908') if the plaintiff claims himself to be in possession in part performance of the agreement."
"18. The facts are not much in dispute. The plaintiff is in possession of the property in dispute in part performance of the agreement to sell which has been made the basis of the suit for specific performance and is unregistered. Section 53-A of the Act of 1882 empowers the transferee to resist any attempt on the part of the transferor to disturb transferee's lawful possession under the contract of sale in case of a suit having been filed for seeking decree for specific performance on the basis of an agreement to sell in which the plaintiff is already in possession in part performance of the contract but according to Section 17(1A) of the Act of 1908, the agreement shall have to be registered if it is executed on or after the commencement of the Registration and Other related laws (Amendment) Act, 2001 and if such documents are not registered, on or after such commencement, then the agreement shall have no effect for the purposes of the said Section. In the present case, since the agreement to sell is unregistered, therefore, in view of Section 49 of the Act of 1908 such an agreement would not be received as an evidence of any transaction affecting the property in question. Thus, the substantial question that has been raised by the learned counsel for the appellant is answered in his favour in affirmative and it is held that the agreement to sell being unregistered does not confer any right or title upon the plaintiff as the same cannot be received in evidence in view of Sections 17 (1A) and 49 of the Act of 1908...................................................
Thus, an unregistered agreement does not give a right to seek decree for specific performance and as a necessary corollary the plaintiff is not entitled to retain possession under the garb of such an agreement"The said judgement though, clearly held that an unregistered agreement to sell does not give a right to the agreement holder in possession to seek specific performance, yet the relief for refund of earnest money, along with interest was granted. However, another coordinate bench of the Punjab and Haryana High Court in the case of Birham Pal and Ors. v. Niranjan Singh and Anr. 2011 (2) Law Herald (P&H) 1136 held that:
"12. Learned counsel for the appellants vehemently contended that according to impugned agreement, possession of the suit land was also delivered to the plaintiff and, therefore, the agreement required compulsory registration, but it is unregistered and, therefore, cannot be used as evidence. Reliance in support of this contention has been placed on judgment of Allahabad High Court in the case of Prag Narayan Mook Badhir Vidalaya Samiti v. Hukam Singh and others, 1997(1) Civil Court Cases 0458, judgment of this Court in the case of Gurbachan Singh v. Raghubir Singh, 2010(3) Civil Court Cases 731 (P&H) and judgment of Hon'ble Supreme Court in the case of K.B. Saha and sons Private Ltd. v. Development Consultant Limited, (2008) 8 Supreme Court Cases 564. I have carefully considered this contention, but the same cannot be accepted. Sub-Section (1A) of Section 17 of the Registration Act, requiring compulsory registration of an agreement whereby possession is also transferred, came into force with effect from 24.9.2001 whereas the impugned agreement is dated 10.4.2001. The said provision was thus not in existence, when the impugned agreement was entered into and, therefore, the impugned agreement did not require compulsory registration. In addition to it, even as per Section 17(1A) of the Registration Act, if an agreement whereby possession is delivered is unregistered, it cannot be used as defence for the purpose of Section 53A of the Transfer of Property Act. However, Section 17(1A) of the Registration Act does not make such an unregistered agreement completely invalid. Such an unregistered agreement can certainly be the basis of suit for specific performance of such agreement and at best same cannot be used as defence for the purpose of Section 53A of the Transfer of Property Act. Judgments cited by counsel for the appellants are not applicable to the instant case."The said conflict of judgements led to the matter being referred to a larger bench, whereby a division bench of Punjab and Haryana High Court, in the case of Ram Kishan and another v. Bijender Mann alias Vijender Mann and others 2013 (2) RCR (Civil) 419 held that:
"A reference relating to the apparent conflict between two Single Bench judgments titled as Gurbachan Singh v. Raghubir Singh, 2010(5) R.C.R.(Civil) 737 : 2010(2) Punjab Law Reporter 511 and Birham Pal and others v. Niranjan Singh and another, 2011 (2) Law Herald (Punjab and Haryana) 1136, has been placed before us. The questions that require to be answered are whether an unregistered agreement to sell, accompanied by delivery of possession or executed in favour of a person in possession, i.e. an agreement that envisages part performance, of an agreement to sell as envisaged by Section 53A of the Transfer of Property Act, can be received in evidence as proof of the agreement and as a natural corollary whether a suit for specific performance would lie on the basis of such an unregistered agreement to sell.
2. A relevant extract from the reference order reads as follows :-
"However, since there is a conflict regarding the legal position as to whether the suit for specific performance can be decreed on the basis of unregistered agreement to sell in view of Section 17(1A) of the Registration Act, 1908 and the other provisions referred to above, if the plaintiffs claim to be in possession in part performance of the agreement. Therefore, it would be appropriate, if the matter is referred to the Division Bench to decide the said issue of law."
"11. A conjoint appraisal of Sections 53A of the Transfer of Property Act, 1882 Sections 17(1A) and 49 of the Indian Registration Act, 1908, particularly the proviso to section 49 of the Indian Registration Act, in our considered opinion, leaves no ambiguity that, though, a contract accompanied by delivery of possession or executed in favour of a person in possession, is compulsorily registrable under Section 17(1A) of the Registration Act, 1908, but the failure to register such a contract would only deprive the person in possession of any benefit conferred by Section 53A of the 1882 Act. The proviso to section 49 of the Indian Registration Act clearly postulates that non-registration of such a contract would not prohibit the filing of a suit for specific performance based upon such an agreement or the leading of such an unregistered agreement into evidence.
12. A suit for specific performance based upon an unregistered agreement to sell accompanied by delivery of possession or executed in favour of a person who is already in possession, cannot, therefore, be said to be barred by Section 17 (1A) of the Registration Act, 1908.
13. Section 17(1A) merely declares that such an unregistered contract shall not be pressed into service for the purpose of Section 53A of the Transfer of Property Act, 1882. Section 17(1A) of the Registration Act, 1908, does not, whether in specific terms or by necessary intent, prohibit the filing of a suit for specific performance based upon an unregistered agreement to sell, that records delivery of possession or is executed in favour of a person to whom possession is delivered and the proviso to section 49 of the Indian Registration Act, 1908 put paid to any argument to the contrary.
14. We, therefore, hold that:
(a) a suit for specific performance, based upon an unregistered contract/agreement to sell that contains a clause recording part performance of the contract by delivery of possession or has been executed with a person, who is already in possession shall not be dismissed for want of registration of the contract/agreement;
(b) the proviso to Section 49 of the Registration Act, legitimises such a contract to the extent that, even though unregistered, it can form the basis of a suit for specific performance and be led into evidence as proof of the agreement or part performance of a contract.
15. We, therefore, express our respectful disagreement with the judgment in Gurbachan Singh v. Raghubir Singh (supra) and affirm the judgment in Mool Chand Mindhra v. Smt. Indu Bala, 2012(5) R.C.R.(Civil) 646 : P.L.R, 378 (R.S.A.No. 2056 of 2011). The reference is answered accordingly. The appeal be set down for hearing, as per roster."The cumulative effect of all these judgements is that although a suit for specific performance is clearly maintainable, even if the agreement in question is unregistered, yet for taking the plea of part performance under section 53A of the Transfer of Property Act, the said agreement is required to be compulsorily registered. It would be pertinent to notice that still there is another set of unregistered documents, such as agreements to sell, will, a Special Power of Attorney (SPA), General Power of Attorney (GPA), etc., whereby though the intention of the vendor/ testator is clearly to transfer the 100% rights in the property by virtue of the said document, yet the same are not registered as title documents, in order to save the stamp duty and other registration charges. The Supreme Court of India, while dealing with the abovementioned set of documents in the case of Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana and another 2011(4) RCR (Civil) 669 has held that:
"15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank, 2002(1) R.C.R.(Civil) 543 : 94(2001) DLT 841, that the "concept of power of attorney sales have been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularise the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of Transfer of Property Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision. (Emphasis Supplied by the writer)
19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding 'SA/GPA/WILL transactions' are not intended to apply to such bona fide/genuine transactions."Thus what transpires from the above mentioned ratio of law is that though it is the mandate of law for anyone taking the plea of part performance to have his agreement registered after the amendment of 2001 under Section 17 of the Registration Act, 1908, yet the same does not bar the validity of the said agreements and the same are legally enforceable, as per law, in case of any of its breach. Doctrine of Part Performance is an equitable doctrine and it is incorporated to protect breach of contractual frauds where one of the parties has already acted in good faith in furtherance to a written contract. This Doctrine is based on legal maxim, Equity looks to the intent rather than the form. (The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared are personal only)
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