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Doctrine of Part Performance under TPA could be raised only if there is an agreement between the parties: High Court of Delhi

Doctrine of Part Performance as enshrined in Section 53A of the TPA (Transfer of Property Act, 1882) could be raised if there is an agreement between the parties. 53A expressly provides that the transferee should have taken possession of the property or if he being already in possession should continue in possession and the same should be in furtherance of a contract. An Agreement to Sell, not being a registered Deed of Conveyance would not meet the requirement of Sections 54 & 55 of the TPA and the same was upheld by High Court of Delhi through the learned bench led by Justice Asha Menon in the case of SUNIL KUMAR CHATURVEDI (HUF) vs. PIYUSH SAMA & ANR. [CS(OS) 195/2021] on 07.02.2022.

The facts of the case are that the suit property had been originally leased by the Delhi Development Authority (DDA) to Mr. Inder Pal Singh Pantle. Subsequently, after receiving permission and approval from the DDA, he sold the property Mr. Joginder Pal Singh. Mr. Joginder Pal Singh, then executed an Agreement to Sell and a General Power of Attorney (GPA) in favour of defendant i.e. Smt. Rita Chaudhary, who is the sister-in-law of the Karta. The defendant permitted the Karta to live in the suit property and he remained in the peaceful possession of the suit property in terms of the internal family understanding. The defendant then executed the Agreement to Sell in the name of the representatives and associates of FTPL and FMCNPL even though she had no marketable title or possession over the suit property.

The plaintiff is a Hindu Undivided Family (HUF) and is suing through the ‘Karta’ for declaration of title over the suit property as he claims to be the rightful owner in possession of the said property.

The plaintiff’s counsel submitted that the Karta and his family members are still in possession of the entire suit property and therefore, pending the disposal of the suit, their possession be protected. He further submitted that the defendant was closely connected with the FMCNPL as his maternal aunt was a 25% shareholder in it and, all the documents filed by the defendant established the clear nexus. The Agreement to sell executed by defendant was clearly under coercion and no consideration had been passed. Therefore, the Agreement to Sell was invalid and non est and on that basis.

The respondent’s counsel submitted that since the suit property was the only dwelling unit available with the Karta, the defendant did not disturb their occupation till they found an alternate accommodation. Thus, only symbolic possession was handed over by defendant to the Karta.

According to facts and circumstances, Court disposed of the suit on terms that the plaintiff cannot claim any ownership or title in the suit property u/s 54 & 55 of TPA on the basis of which they could file the instant suit or seek interim protection.

The Court observed that, “doctrine of Part Performance as enshrined in Section 53A of the TPA could be raised if had there is an agreement between the parties. An Agreement to Sell, not being a registered Deed of Conveyance would not meet the requirement of Sections 54 & 55 of the TPA.”

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Judgment reviewed by – Shristi Suman

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