LAW CHAMBER OF HINESH RATHOD (ADVOCATE)

LAW CHAMBER OF HINESH RATHOD (ADVOCATE)

2/24/2025, 11:31:40 PM

Define charge and its framing of charge and joinder of charges and its provision under Bnss? Introduction Charge in simple words means ‘accusation’. It is a formal recognition of a concrete accusation by the magistrate or court based upon a complaint or information against the accused. Section 2(1)(f) of BNSS defines ‘charge’ which states that, the charge includes any head of charge when the charge contains more than one head. In case the accused is not informed about the charge against him it will lead to injustice as the accused is not aware of the charge against him and th us, he would not be able to prepare his defence. One of the basic requirements of a fair trial in criminal cases is to give precise information to the accused as to the accusation against him and then the ‘charge’ is to be read and explained to the accused. Purpose of Framing Charge The Supreme Court in the case of V. C. Shukla v. State (1979) held that the purpose behind framing charge is to give clear, unambiguous, or precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial. Contents of Charge: Section 234 of CrPC Section 211 constitutes essential elements of charge: It must state the offence with which the accused is charged. The charge framed shall specify the exact offence name for which the accused is charged. In case there is no specific name given under any law for the offence with which the accused is charged off, then the definition of the offence must be clearly stated so as to bring to the knowledge of the accused the exact matter with which he has been charged. The law and the section of the law against which the offence is said to be committed shall be mentioned in the charge. The mere fact that a charge has been filed equates to a declaration that every legal condition necessary by law to create the alleged offence has been met in this case. The charge must be written in the language of the court. If the accused has been previously convicted of any offence, then the fact, date and place of previous conviction should be stated in the charge for enhanced punishment which the court might pass if it finds the accused guilty of the offense charged. Particulars as to Time, Place and Person: Section 235 The charge framed shall contain the particulars as to the time and place of the alleged offence and the person against whom the offence is committed in order to give the accused precise information and clear notice of the matter for which he is charged. The exact time need not be mentioned in the charge form when the accused is charged with criminal breach of trust or dishonest misappropriation of money or any other movable property, the gross sum specified and the dates on which such alleged offence has been committed will be sufficient. For example, in case of murder the date and time of murder and the details of the accused and the deceased will be sufficient. When the Manner of Committing Offence Must be Stated: Section 236 When the nature of the case is such that the particulars indicated in Section 234 and Section 235 do not provide the accused with adequate notice of the allegation with which he is charged, the charge shall contain such particulars of how the alleged offence is committed as would provide for that purpose. For example- A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B. Alteration of Charge and the Procedure to be followed Power of the Court to Alter Charge: Section 239 This section explains that the court shall have the power to alter or add to a charge at any time before the pronouncement of judgement. After such alteration or any addition made to the charge, the charge shall be explained to the accused. If an alteration or addition to a charge is such that proceeding of the trial immediately would not prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may, in its discretion, proceed with the trial as if the altered or added charge was the original charge after the alteration or addition has been added. If an addition or alteration to a charge is such that proceeding of the trial immediately would prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may either order a new trial or adjourn it as it deems fit. If the offence stated in the altered or added charge is one for the prosecution, the case shall not move forward unless sanction has been obtained for prosecution in respect of facts constituting the offence on which the altered or added charge is founded. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accordance with the material produced before him or if subsequent evidence comes on record. Unless the evidence has been let in, charges already framed cannot be altered, as that is not the intent of Section 236 . It is obligatory on the part of the court to see that no prejudice is caused to the accused, and he is allowed to have a fair trial. The trial court or the appellate court may either alter or add to the charge provided the only condition is: The accused has not faced charges for a new offence. The accused must have been given the opportunity of defending the charge against him.

LAW CHAMBER OF HINESH RATHOD (ADVOCATE)

2/24/2025, 1:48:24 PM

Ingredients of Criminal Conspiracy under Section 61(2) of BNS Below are the components of this offence (1) There is common intention of the parties to an offence. (2) Such Common intention should be • to achieve an unlawful objective or • by unlawful assistance achieve an object which is not illegal per se. The meeting of minds of two or more persons for the purpose of committing an unlawful act or for an act which is not lawful is an essential ingredient of any the conspiracy. Whoever attempts to commit an offence punishable by this Sanhita with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Sanhita for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. Illustrations: 1. A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section. 2. A makes an attempt to pick the pocket of Z by thrusting his hand into Z’s pocket. A fails in the attempt in consequence of Z’s having nothing in his pocket. A is guilty under this section. opandas v. State of Bombay - 1955 This case serves as an early precedent, interpreting 'criminal conspiracy under IPC'. Here, the court held that a criminal conspiracy is an independent offence by itself, and the mere agreement between two or more individuals with the intent to commit a crime is punishable, even if no illegal act follows the agreement. Ram Narain Popli v. C.B.I. - 2003 In this landmark case, the Supreme Court of India elaborated on Section 120A IPC, emphasizing that the essence of a criminal conspiracy is an agreement to commit an offence. In a case where a conspiracy is alleged, the court must look for evidence proving that the conspirators had met and decided upon a plan to commit the crime. Kehar Singh and others v. State - 1988 This case involved the assassination of a Prime Minister, and the Supreme Court elucidated the role of circumstantial evidence in proving criminal conspiracy. It noted that the existence of an agreement, the cornerstone of a conspiracy, could be inferred from circumstantial evidence. Conclusion The Bharatiya Nyaya Sanhita, 2023, Section 61(2), is an exhaustive legal provision on criminal conspiracy in India. It explains the jurisprudence on criminal agreements and the requirement of an overt act in furtherance of the agreement to establish conspiracy. Such advances in articulation of punishment and its procedural requirements are contained in the new law, but the provisions are still similar to the old Section 120-B of the IPC. These complexity must be appreciated by anyone who is a party to a legal action involving any form of conspiracy as their understanding goes beyond the general layman’s knowledge of the law of conspiracy.

LAW CHAMBER OF HINESH RATHOD (ADVOCATE)

2/26/2025, 3:11:05 PM

↗️ *SUPREME COURT OF INDIA* CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2025 (Arising out of SLP (C) No. 21965 OF 2022) KANAHAIYA LAL ARYA VERSUS MD. EHSHAN & ORS. FEBRUARY 25, 2025 *Landlord or property owner is the best judge of which portion of the rented premises should be vacated to meet their specific needs, and the tenant cannot oppose eviction merely on the grounds that the landlord owns other properties.* *“The law with regard to eviction of a tenant from the suit premises on the ground of bona fide need of the landlord is well settled. The need has to be a real one rather than a mere desire to get the premises vacated. The landlord is the best judge to decide which of his property should be vacated for satisfying his particular need. The tenant has no role in dictating as to which premises the landlord should get vacated for his need alleged in the suit for eviction.”, the Court observed.*

LAW CHAMBER OF HINESH RATHOD (ADVOCATE)

2/25/2025, 5:06:22 AM

Physical Presence Not Mandatory in Proceedings under DV Act | 24 Feb 2025 Vishal Shah v. Monalisha Gupta & Ors “We may observe that as the proceedings under the DV Act are quasi-criminal in nature, thus, there cannot be any justification to require the personal presence of the appellant in these proceedings.” Justice Pankaj Mithal and Justice Sandeep Mehta Source: Supreme Court Why in News? A bench of Justice Pankaj Mithal and Justice Sandeep Mehta held that physical presence is not important in the case of domestic violence act proceedings. Recently, the Supreme Court held in the matter of Vishal Shah V. Monalisha Gupta & Ors (2025). What was the Background of the Vishal Shah v. Monalisha Gupta & Ors Case? Vishal Shah (appellant) and Monalisha Gupta (defendant) got married on 19th February 2018, following Hindu customs and ceremonies. In March 2018, the couple moved to the United States, where the appellant had been working as a Software Engineer since 2014. The marriage faced problems almost immediately. On 23rd March 2018, appellant reported an incident of domestic abuse to local US police, showing visible injuries on his face. He requested only a warning be given to his wife. On 2nd April 2018, another incident occurred where Monalisha allegedly scratched appellant’s face, causing significant injuries. This led to her being charged with second-degree assault in the US. After only 80 days of marriage, the couple returned to India due to their differences. When it was time to return to the US, the defendant refused to go back with the appellant. The appellant returned alone to the USA. The couple has had no children. Between 2018 and 2020, the defendant lived in the same house as appellant's mother, Gayatri Shah. On 14th September 2020, Gayatri Shah left her own house to live with her daughter, claiming she was forced to leave due to physical and mental torture by the defendant. Appellant's passport was impounded by Indian authorities on 3rd October 2018, due to various cases filed against him. Currently, the defendant works as a Research Specialist at PwC in Kolkata, earning ₹50,000 per month. While Vishal was earning ₹8 lakhs per month in 2018, he claims to be currently unemployed. Multiple cases have been filed by both parties against each other and their family members across different courts in Muzaffarpur (Bihar), Howrah (West Bengal), and the United States. Trial Court (Judicial Magistrate, Howrah): The court noted that the appellant’s passport had been impounded on October 3, 2018, by the Government of India. When appellant challenged the impounding of his passport through a Writ Petition it was dismissed by the High Court. Despite knowing about the impounded passport, the trial court ordered initiation of extradition proceedings against the appellant for his non-appearance in the suit filed under Section 26 of the Protection of Women & Domestic Violence Act, 2005 (DV Act). High Court of Calcutta The Calcutta High Court dismissed the appellant’s Criminal Revision through a non-speaking order. The High Court simply stated that no grounds for interference were made out, without examining the merits or providing detailed reasoning. Aggrieved by the same the present appeal has been filed before the Supreme Court. What were the Court’s Observations? The Supreme Court observed that: On Trial Court's Order: The trial court grossly erred in requiring the appellant’s personal presence as DV Act proceedings are quasi- criminal in nature such proceedings have no penal consequences except when there is a breach of a protection order, under Section 31 of the DV Act. The extradition order was untenable since the appellant’s non-appearance was due to his impounded passport. The trial court failed to consider circumstances beyond the appellant's control. On High Court's Order: The High Court should have examined the case record more thoroughly. A reasoned decision addressing the merits was expected rather than a non-speaking order. On Marriage Breakdown: The marriage never really took off, with only 80 days of cohabitation. Multiple litigations filed by both parties showed their vindictive attitudes. No meaningful marital relationship developed between the parties. The long separation and failed reconciliation attempts proved an irretrievable breakdown. On Passport Impounding: The Court called it "ex-facie illegal" as it violated principles of natural justice. Further, the Court held that no opportunity was given to the appellant to be heard before impounding. Additionally, it was held that mere filing of cases is not sufficient ground for impounding a passport. On Permanent Alimony other factors to be considered as: Standard of living during marriage. Period of separation. Financial status of both parties. Determined ₹25 lakhs as fair and reasonable settlement. The Supreme Court ultimately found this to be a classic case of irretrievable breakdown of marriage warranting the exercise of powers under Article 142(1) of the Constitution of India. What is Breach of Protection Order? Section 31 of the DV Act states that a breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act. Shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. The offence under sub-section (1) of Section 31 shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. While framing charges under sub-section (1), the Magistrates may also frame charges under section 498A of the Indian Penal Code, 1860 or any other provision of that Code or the Dowry Prohibition Act, 1961, as the case may be, if the facts disclose the commission of an offence under those provisions.

LAW CHAMBER OF HINESH RATHOD (ADVOCATE)

2/23/2025, 3:16:38 PM

Procedures of arrest or rights of arrested person Arrest of infirm or aged persons: Now, for offences punishable with imprisonment of less than 3 years, police cannot arrest a person who is infirm or above 60 years of age without obtaining the prior permission of an officer not below the rank of a DSP (Section. 35(7), BNSS). Information of arrest: Under the CrPC, the person arrested was entitled to name a friend or relative who must be informed by the police of the arrest, unless the arrest memo was attested by a family member as a witness (S.41-B, CrPC). The BNSS now provides that the person arrested can name ‘any’ person (and not necessarily a friend or relative) to be informed of his arrest (S.36, BNSS). Designated police officer: Under the CrPC, the State Government was required to establish control rooms at district and State level for information on arrested persons (S. 41-C, CrPC). Under the BNSS, in addition to such control rooms, State Governments are required to designate a police officer in every district and police station for maintaining information about persons arrested and their offences. This information is required to be displayed prominently (including in digital mode) in every district headquarter and police station (S.37, BNSS). Handcuffs: BNSS allows a police officer to use handcuffs while arresting a person or producing him before court if he is a habitual offender, or has escaped from custody, or has committed certain specified grave offence (e.g., murder, rape, terrorist act, etc.) (S. 43(3), BNSS). Medical Practitioner: Under the CrPC (S.53), only a police officer not below the rank of sub-inspector could have requested for a medical examination of the accused. Now, any police officer can request for such examination (S. 51, BNSS). It is also now mandatory for the medical practitioner to forward the examination report to the investigating officer without any delay (S. 51(3), BNSS), which was not expressly set out in the CrPC. Timeline for production before Magistrate upon arrest: Under the CrPC, a police officer who arrests a person without warrant is required to produce him before the ‘Magistrate having jurisdiction in the case’ within 24 hours and cannot detain him in custody for more than 24 hours without the Magistrate’s order. This period of 24 hours is exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. However, while the police may endeavour to produce the arrested person before the jurisdictional Magistrate, the police are also permitted to produce the arrested person before the nearest Magistrate (who need not be the jurisdictional Magistrate) to meet the 24 hours timeline. BNSS has now expressly clarified (in S.58) that the 24 hours will be exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court ‘whether having jurisdiction or not’.

LAW CHAMBER OF HINESH RATHOD (ADVOCATE)

2/25/2025, 5:50:10 AM

Top 5 Landmark Judgments Related to Real Estate Laws in India 1) Lalita Kumari v. Government of Uttar Pradesh (2013) Takeaway: Registration of FIRs, which is a duty of the police, is mandatory in cases of cognizable offenses. Fraud in selling and buying real estate is hence cognizable. This judgment basically made it binding upon the police to register an FIR as soon as a cognizable offense was reported. Delays in registration of FIRs frustrated consumers, especially in those cases that involved fraud in real estate. This judgment held that police authorities are duty-bound to register an FIR immediately upon receipt of a complaint regarding offenses, including those relating to property fraud. This in itself provided a facility for quicker legal remedy where developers or real estate brokers cheated homebuyers. The judgment also turned out to be a preventive measure against fraudulent practices associated with the field of real estate, meant to save consumer rights. Impact on Real Estate: The Lalita Kumari judgment gave strong legal support to consumers in case of fraud in the real estate sector, wherein the police had to act immediately without leaving any discretion. This has brought positive impact due to the consumer confidence while investing in the real estate, especially the projects which are under construction or pre-launch. 2) M/s. Satyam Shivam Sundaram v. State of U.P. (2013) Key Takeaway: Buyers are entitled to get compensation in case of delayed possession. The ratio in M/s. Satyam Shivam Sundaram v. State of U.P. succinctly lays down that the developer has to ensure the possession of the property is issued to the buyers in terms of the contract and that, too, within the stipulated time. If that is not fulfilled, then the developer has to pay compensation to the buyer. This judgment brought the interest of the buyer in a house and made developers more liable since they would now have to adhere to timelines for completion of projects or pay monetary damages. Impact on Real Estate: The judgment, therefore, came as a landmark in many cases that were filed seeking more accountability and ‘strict adherence’ to the contract provisions with regards to the project completion schedule. The judgment saved the consumers from financial loss and harassment caused due to indefinite delays and also made real estate developers aware of the importance of handing over a project on time. 3) K.K. Verma v. Union of India (2007) Overview: The compensation payable for land acquisition should be just and fair. The present case related to the acquisition of land, and this Court, while laying down that it is the bounden duty of the government to see that just and fair compensation is paid to the landowners. It explained that when properties are being acquired for public purposes, such as building buildings, roads, etc., the owners must be suitably compensated at current market rates so that their interest is adequately protected. This judgment insisted on transparency in regard to the compensation to be paid, so that the land owners are not exploited in any manner whatsoever. Impact on Real Estate: This judgment brought transparency into the process of land acquisition in cases of major infrastructure or housing projects. The compensation given to the people displaced needed to be reasonable, market-oriented; both central and state governments and private firms enjoyed a healthy balance between public interest and private rights. Further, this judgment brought down many disputes arising due to low compensations and treated landowners in a much fairer way. 4) Bangalore Development Authority v. R. Vasudeva (2006) Principle laid down: “It should be fair play and transparent as far as the allotment of property is concerned by those at the helm of affairs”. The Supreme Court, in the instant case, has held that the development authorities cannot reject the allotment arbitrarily for those who have fulfilled all conditions. This judgment was one important step to make sure that the housing boards and development authorities act transparently, unbiased, and just with all applicants intending to use their services. It gave a greater degree of protection from arbitrary actions mishandled by government authorities for lack of knowledge to the applicants for residential plots or commercial plots so that the applicants get what they deserve on merit and nothing less. Impact on Real Estate: It discouraged malpractices and nepotism among the development authorities and made the allotment of properties quite fair. It protected consumers against bureaucratic delays and possible corruption, hence assuring fair dealing in the development and allotment process of real estate. 5) Real Estate (Regulation and Development) Act, 2016 (RERA) Key Takeaway: RERA made landmark changes in the regulation of real estate. RERA 2016 remains a milestone for Indian real estate. Not precisely a judgment, in fact, the constitutional framework of RERA was alright from the Supreme Court itself and was cast into real estate law. Forcing real estate developers to register themselves under the authority for the particular projects they would develop, so as to make it a point that there is much more accountability and transparency. It essentially kept the consumers fully informed about project timelines, delays, and regulatory approvals, besides providing a platform for grievance redressal to the homebuyer. Impact on Real Estate: RERA brought a transformation in the real estate sector, as it subjected developers to stricter norms, making them responsible for the timeline and quality of projects. It put an end to unethical practices like selling unapproved properties by various regulatory authorities and misrepresenting facts to buyers. This act has empowered consumers in their choice and helped projects enhance their transparency, regulated real estate markets, and the like.

LAW CHAMBER OF HINESH RATHOD (ADVOCATE)

2/27/2025, 1:55:18 PM

↗️ *SUPREME COURT OF INDIA* CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.3238-3239 OF 2025 (@Petition for Special Leave to Appeal (C) Nos.23308-23309/2017) NIRMITI DEVELOPERS THROUGH ITS PARTNERS & ANR. VERSUS THE STATE OF MAHARASHTRA & ORS. 25th FEBRUARY, 2025. *Recently observed that Section 127 of the Maharashtra Regional and Town Planning Act, 1966 requires that the land reserved, for any purpose specified in any plan under this act, should be utilised within the prescribed timeline. Otherwise, the reservation shall be deemed to have lapsed. The Court also observed that the timeline provided under the Act is sacrosanct and has to be adhered to by the State or by the authorities under the State.* *“The landowner cannot be deprived of the use of the land for years together. Once an embargo has been put on a landowner not to use the land in a particular manner, the said restriction cannot be kept open-ended for indefinite period.,” the Bench of Justices J.B Pardiwala and R. Mahadevan said.*

LAW CHAMBER OF HINESH RATHOD (ADVOCATE)

2/27/2025, 9:53:41 AM

VIDEO-CONFERENCING: In The State of Maharashtra v. Dr. Praful B. Desai [AIR 2003 SC 2053], the question involved was whether a witness can be examined by means of a video conference. The Supreme Court observed that video conferencing is an advancement of science and technology which permits seeing, hearing and talking with someone who is not physically present with the same facility and ease as if they were physically present. The legal requirement for the presence of the witness does not mean actual physical presence. The court allowed the examination of a witness through video conferencing and concluded that there is no reason why the examination of a witness by video conferencing should not be an essential part of electronic evidence. In Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal 11), the court held that the physical presence of person in Court may not be required for purpose of adducing evidence and the same can be done through medium like video conferencing. In Twentieth Century Fox Film Corporation Vs. NRI Film Production Associates (P) Ltd. (AIR 2003 KANT 148), certain conditions have been laid down for video recording of evidence. They are as follows: 1) The person who examines the witness on the screen shall file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification. 2) The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media. 3) The witness should not plead any inconvenience on account of time different between India and USA. 4) Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgment is to be filed before the Court in this regard. 5) Learned Judge is to record such remarks as is material regarding the demeanour of the witness while on the screen. 6) Learned Judge must note the objections if raised during recording of witness and to decide the same at the time of arguments. 7) After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings. 8) The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certificate to this effect. 9) The learned Judge may also impose such other conditions as are necessary in a given set of facts. 10) The expenses and the arrangements are to be borne by the applicant who wants this facility. In Suvarana Musale vs Rahul Musale [2015 (2) Mh.L.J. 801], it was held that recording of evidence with help of electronic method and techniques is acknowledged and recognized in judicial system. In that case, the Petitioner-wife was working in U.S. and has a minor daughter aged 6 yrs, traveling to India for being present physically was expensive and she may face difficulty in getting leave and hurdles in obtaining VISA. An application for recording evidence through video conferencing was therefore allowed.

LAW CHAMBER OF HINESH RATHOD (ADVOCATE)

2/23/2025, 5:06:26 AM

Conditions to Invoke Section 53A | Giriyappa & Anr v. Kamalamma & Ors “Section 53A of TPA is to principally protect the ignorant transferees.” Source: Supreme Court Why in News? Justice JB Pardiwala and Justice R Mahadevan A bench of Justice JB Pardiwala and Justice R Mahadevan laid down the conditions requisite for invoking Section 53A of Transfer of Property Act, 1882. The Supreme Court held this in the case of Giriyappa & Anr v. Kamalamma & Ors. (2024). What was the Background of Giriyappa & Anr v. Kamalamma & Ors. Case? The respondents instituted a suit seeking declaration of title and recovery of possession of the suit-scheduled property. The Trial Court decreed the suit in favor of the respondents. The petitioners filed a Regular First Appeal, which was dismissed. They then filed a Regular Second Appeal which was also dismissed by the High Court. The High Court framed a key legal question regarding whether the defendants could claim protection under Section 53A of the Transfer of Property Act, 1882 (TPA) based on an unregistered sale agreement. The High Court observed the following: The petitioners failed to prove the existence and execution of the alleged sale agreement. The property in question was shown to be in the lawful possession of the respondents. The findings of the lower courts were consistent with the evidence presented. The petitioners (original defendants) filed this Special Leave Petition (SLP) challenging the dismissal of their Second Appeal by the High Court of Karnataka. What were the Court’s Observations? The Court first of all discussed the conditions to be fulfilled for invoking the remedy of part performance under Section 53 A of TPA. The Court observed that Section 53A has been added to act as a shield for the prospective transferee who is holding possession of the property under the contract of sale. The main question to be determined here was whether the relief of part performance can be granted or not. The Court observed that the plaintiff has failed to show that the respondent has executed a sale agreement in it’s favor and would not entitle him to claim part performance of the contract. Thus, the petition was dismissed in this case. What is Section 53A of TPA? Section 53A of TPA provides for part performance of contract. The purpose for introducing Section 53 A in TPA is to partly set right the conflict of views in this country. Principally, it was inserted however for the protection of ignorant transferees who take possession of or spend money on improvements relying on documents which are ineffective as transfers or on contracts which cannot be proved for want of registration. The effect of this section is to relax the strict provisions of the Transfer of Property Act and the Registration Act in favor of transferees in order to allow the defense of part performance to be established. Section 53-A is an exception to the provisions which require a contract to be in writing and registered and which bar proof of such contract by any other evidence. The exception must therefore be strictly construed. What are the Conditions Requisite for Invoking Section 53A of TPA? The conditions requisite for invoking Section 53 A of TPA are as follows: There is a contract in writing by the transferor for transfer for consideration of any immovable property signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. 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. The transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract. Thus, the elements of Section 53 A of TPA: Existence of an Agreement: There must be a valid agreement between the parties for the transfer of property, even if it is not in writing or registered. Payment of Consideration: The transferee must have paid or agreed to pay the consideration, either fully or in part, as per the terms of the agreement. Taking Possession or Making Improvements: The transferee must have taken possession of the property or performed substantial acts of improvement on it based on the agreement. What are the Case Laws on Section 53A of TPA? Probodh Kumar Das v. Dantra Tea Company Limited & Others (1939): The Privy Council in this case laid down the law that Section 53 A of Transfer of property Act, 1882 (TPA) does not confer any right of action on a transferee in possession. The Court was in agreement with the view that the right conferred by Section 53 A is a right available only to the defendant to protect his possession. It does not confer any active title on the transferee. Arun Kuamr Tandon v. M/s Akash Telecom Private Limited (2010): The Supreme Court in this case held that in order to give benefits of Section 53 A of TPA the document relied upon must be a registered document. Any unregistered document cannot be relied upon or taken into evidence in view of Sections 17 (1A) read with Section 49 of the Registration Act. Thus, the benefit of Section 53 A of TPA can be given if and only if the alleged agreement to sell is registered and it satisfies the requirements of Section 17 (1A) of Registration Act, 1908. Shrimant Shamrao Suryavanshi And Another v. Pralhad Bhairoba Suryavanshi (d) by LR’s And Ors. (2002): In this case the issue to be determined by the Court was whether the plaintiff was entitled to protect their possession in pursuance of part performance under Section 53 A of TPA when the suit for specific performance of contract is barred by limitation. It is to be that Section 53 A nowhere prohibits the party from taking this plea of defence. The necessary conditions for the purpose of applicability of Section 53 A are: There must a contract to transfer for consideration any immovable property. The contract must be in writing signed by the transferor. The writing must be in words from which terms necessary to construe transfer can be ascertained. The transferee must in part performance take possession of the property, or any part thereof. The transferee must have done something in furtherance of the contract. The transferee must have performed or be willing to perform his part of the contract. The Court therefore held that if the conditions above are fulfilled the law of limitation does not come in way of a defendant taking the plea under Section 53 A of TPA. Further, the Court held that the law of limitation is not applicable to the plea taken in defense unless there is an express provision in the statute. The law of limitation applies to suits and applications, and it does not apply to defence taken in suits.