How To Protect The Possession Of Your Property?

A transferee who is in possession of the property under writing can protect his possession and can create an estoppel against the vendor to enforce his right, title or interest in the suit property.

You must all know about this crucial property law of Section 53­A Transfer of Property Act which protects the possession of the transferee subject to certain conditions.

Let us analyse the relevant law in detail:

WHAT IS THE SCOPE OF SECTION 53A OF TRANSFER OF PROPERTY ACT?

Section 53A gives statutory recognition to what had hitherto been regarded as the Doctrine of Part Performance and applied by the Indian Courts to cases where the transfer was not affected by a registered instrument. [omitted by the act of 2001]

The general ground upon which the doctrine is based is the prevention of fraud

It is clear that where one party has executed his part of the agreement in the confidence that the other party would do the same, it is obvious that if that latter should refuse, it would be a fraud upon the former to allow this refusal to work to his prejudice. 

When a transferee has, in the faith that the transfer would be completed according to law, taken possession, it would be inequitable to allow the transferor to treat the transferee as a trespasser. 

The defence of part performance, as embodied in S. 53A, requires the following four conditions to be fulfilled : 

(i) There should be a contract to transfer, for consideration, any immovable property by a writing signed by the transferor or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. 

It will be noticed that a person who has entered into an oral contract cannot, under this section, invoke the doctrine of part performance

The agreement must be in writing and signed by the person (or his agent) whom it is sought to bind. Thus, where the transferee under the contract seeks protection under S. 53A, the contract must be in writing. 

For this purpose, an incomplete deed of transfer, though not attested, is regarded as a contract in writing. But such a deed must have been signed by the transferor or his agent. 

(ii) The transferee should, in part performance of the contract, have taken possession of the property or any part thereof, or, if already in possession, should have continued in possession in part performance of the contract, and should have done some act in furtherance of the contract. 

(iii) The transferee should have performed or should be willing to perform, his part of the contract. 

(iv) The rights of any other subsequent transferee for consideration without notice should not be affected. 

S. 53A is based on the following three maxims of equity : 

i)  He who seeks equity must do equity.

ii)  Equity treats that as done which ought to have been done.

iii)  Equity looks to the intent rather than to the form.           

CAN SECTION 53A BE USED AS A SHIELD OR A SWORD?

In case of Dharmaji Alias Baban Bajirao vs Jagannath Shankar Jadhav AIR 1994 Bom 25 His lordship has observed that often it is said that the right cannot be used as a sword and can be used only as a shield.

“If this right as a shield is available to him as a defendant, I do not see any justification for a view that it would be denied to him even if by force of circumstances he as a law-abiding citizen is compelled to approach the Court as a plaintiff to use that shield. The transferee is entitled to resist any attempt on the part of the transferor to disturb transferee’s lawful possession under the contract of sale and his position either as a plaintiff or as a defendant­­ should make no difference. 

A contrary interpretation viz., the transferee can use the shield only as a defendant and not as a plaintiff, would defeat the very spirit of S. 53A for it will be possible for an overpowering transferor to forcibly dispossess the transferee even against the covenants in the contract and compel him to go to the Court as a plaintiff. As far as letter of law is concerned, there is nothing which militates against the above object-oriented interpretation. 

In case of Bhima Savalaram Shinde v. Bhaguji Annaji Unde, 1978 Mh L J 442,  it has been held that the plaintiff could file a suit to protect his possession under Section 53A and restrain the defendants who were strangers from disturbing his lawful possession. 

The controversy whether sec 53A can be used as a sword as a shield is set to rest In AIR 2004 Bom 378, Sadashiv Chander Bhamgare Vs. Eknath Pandharinath Nangude, in which a Full Bench of Bombay High Court has held that when it is said that proposed transferee in possession can use S.53A as a shield, but not as a sword, it means that he can use S.53A either as a plaintiff or as a defendant to protect his possession, but he cannot use S.53A either for getting title or for getting possession if he is not actually in possession. In other words, when the transferee­-in-­possession comes to the court as a plaintiff seeking a decree of perpetual injunction against the transferor, he is using S.53A as a shield to protect his possession. 

While deciding the above case a full bench of Bombay high court reiterated the views of Hon’ble Supreme court echoed in case of Biswabani V Santosh Kumar AIR 1980 SC 226 

Section 53­A of the Transfer of Property Act, 1882 does not confer any title on any person. 

 A transferee who is in possession of the property under writing can protect his possession and can create an estoppel against the vendor to enforce his right, title or interest in the suit property. 

Section 53A of the Act affords protection to a transferee on certain conditions, one of which that ‘ the transferee has performed or is willing to perform his part of the contract’

It is well established that the right conferred by Section 53A is a right available to the transferee only to protect his possession and on the basis of that section, the transferee cannot claim any title and it merely operates as a bar. 

The doctrine of part performance cannot also be applied to void agreements. No amount of part performance can validate a void agreement. 

CONCLUSION:

To conclude it is observed that as per Sec 53 A is to be used as a shield and legal consequences of using this provision as a shield is: 

(a) the limitation does not bring infirmity to the right of a transferee without title to hold possession, but it cripples the right of the vendor with title to recover possession; 

(b) possession is one of the incidences of transfer of the interest of a transferor. As a consequence, transferee holds possession irrespective of transfer of interest as a whole of the transferor as envisaged by Section 8 of the Act; 

(c) as statutory limitation cannot be carved out in Section 53­A of the Act, protection available to transferee thereon runs indefinitely

(d) the shield becomes more effective than sword and equity then prevails over law. 

If you have any further queries regarding this article, you may contact me at:

Adv.Sidharth Arora 
Supreme Court of India 
+91-9599200768 +91-9560601768 
legalkennen@gmail.com 
A-1/121 Janakpuri, New Delhi. 
DISCLAIMER: Through this article, we wish to help those who are in genuine need of help and are willing to understand the law. This is not a solicitation, advertisement or a substitute of professional legal advice. It does not create any client-attorney relationship.

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