S.53A, transfer of property act: A sword to its own shield?

Mehta, Aman (2020) S.53A, transfer of property act: A sword to its own shield? Supremo Amicus, 19. pp. 67-72. ISSN 2456-9704

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This paper primarily focuses on the doctrine of part performance and the recent trends regarding protection under S.53A of The Transfer of Property Act, 1882 in India with the question being asked that "has the protection of S.53A lost its importance after the enactment of Registration and Other Related Laws (Amendment) Act, 2001 (Act No. 48 of 2001) w.e.f. 24-9- 2001?" After the enactment of Act No. 48 of 2001 (w.e.f 24-9-2001) S. 53A of the Act was amended and the words "the contract, though required to be registered, has not been registered, or, " were omitted from the said Section making the registration of deed transfer of an immovable property compulsory. The registration of sale deed was made a must after the amendment. Hence, if there was any other grievance or defect except registration, the help of the doctrine of part performance and the protection under S.53A of the Act could be taken. However, a document had to be registered if it was made compulsorily registrable under S. 17 of the Registration Act, 1908 or under the Transfer of Property Act, 1882. Some scholars have suggested that after this amendment, the protection of S.53A has lost the importance it had prior to the amendment. The legislative intent behind S.53A is that it is seeking to protect the transferee by allowing him to retain the possession of the property, against the right of the transferors, who after the execution or completion of an incomplete instrument of transfer has failed to complete it in the manner specified by Law, without any fault of the transferee.'153 Prior to the amendment, the doctrine of part performance provided a safeguard for the transferee against the transferor in retaining the possession of the property in circumstances where there was no fault on his part even when the sale deed was not registered. After the amendment, if the contract of sale is not registered then the Section and with it the safeguard does not have any application whatsoever. This adds another obstacle in getting protection under S.53A as there are already many necessary conditions for the application of S.53A. This paper analyzes the applicability of S.53A of the Act pre-amendment and post amendment. The paper tries to find out if the amendment has proved to be a hurdle in seeking protection of S.53A, making it lose its importance that it used to hold before the amendment was enacted.

Item Type: Article
Keywords: S.53A | Transfer of Property Act, 1882
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Mr. Syed Anas
Date Deposited: 30 Mar 2022 05:28
Last Modified: 30 Mar 2022 05:28
Official URL: https://heinonline.org/hol-cgi-bin/get_pdf.cgi?han...
URI: https://pure.jgu.edu.in/id/eprint/1966


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