53A. Part performance
Where any person contracts to transfer for consideration any immovable 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 the contract, though required to be registered, has not been registered, or, 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 learned Judge observed that a distinction must he drawn between a writing which is a reduction into writing of a previous oral agreement which will fall within the ambit of Section 53A of the Transfer of Properly Act, and a writing in which there is a mere reference to a previous oral agreement which will not attract the provisions of Section 53A of theTransfer of Property Act. The point of distinction would he whether an unregistered sale deed itself can he used for the purpose permissible under Section 53A of the Transfer of ProperlyAct. The writing referred to evidently does not mean any and every collateral writing wherein a reference to the oral agreement might be made. But the writing should be one evidencing the terms of the contract. It may he in the form of an agreement, or it may he some limes in the form of a draft sale deed which has for some reason or the other not been got registered. We have no doubt that such a draft sale deed
lease deed was prepared before the final thekapatra was to be executed. That was to ensure that there should be no difference of opinion, and no changes in the terms of the thekapatra. The learned Judges held that the draft itself could be used in proof of part performance as per Section 53A of the Transfer of Properly Act.
P.K. Tare, J.