Section 53A part-performance protection fails where possession was not proved to have passed to the transferee.

Section 53A of the Transfer of Property Act, 1882 applies only where the contract is in writing and signed by the transferor, the transferee has taken or continued in possession in part performance, an act has been done in furtherance of the contract, and the transferee has performed or remains willing to perform his part; these conditions are cumulative and each is essential. On the evidence, the recital in the later power of attorney showed that the transferor remained in possession, which undermined the plea of delivery of possession under the agreement to sell. The defendants were therefore denied the protection of section 53A, and the finding that possession was not delivered was upheld.

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Issues: Whether the defendants were entitled to protection under section 53A of the Transfer of Property Act, 1882 on the basis of an agreement to sell and alleged delivery of possession in part performance.

Analysis: Protection under section 53A is available only if the contract is in writing signed by the transferor, the transferee has taken possession or continued in possession in part performance, the transferee has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract. These conditions are cumulative and each of them is a sine qua non for invoking the equitable defence. On the evidence, the recital in the later power of attorney showed that the transferor remained in possession of the property, which negatived the defendants' plea that possession had been delivered under the agreement to sell.

Conclusion: The defendants were not entitled to the benefit of section 53A of the Transfer of Property Act, 1882, and the finding that possession was not delivered was upheld. The appeal failed and the result was in favour of the respondents.

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