Supreme Court of India· 13 August 2026
When does a tenant's continued possession after entering into an agreement to sell qualify as part performance protected under Section 53A of the Transfer of Property Act?
NAZIM SHAIKH HASAN v. NASIR MUSHTAQ SHAIKH
2026 INSC 853 · SPECIAL LEAVE PETITION (CIVIL) NO.17699 OF 2026
Coram: Prashant Kumar Mishra; N.V. Anjaria
Answer
Only where the possession is shown to be directly relatable to and flowing from the agreement to sell, as where the tenant is inducted into possession for the first time under the contract — continued possession referable merely to the pre-existing tenancy does not qualify.
Headnote
Transfer of Property Act, 1882 — s.111(e), s.111(f), s.53A, s.54 — Registration Act, 1908 — s.17(1A) — Surrender of tenancy — Agreement to sell — Part performance —
Transfer of Property Act, 1882 — s.111(e)(f) — Surrender — Mere agreement to sell insufficient —
Held: The mere execution of an agreement to sell between a landlord and tenant, even on part payment, does not ipso facto determine the tenancy. Determination requires an express or implied surrender under Section 111(e) or (f) of the Transfer of Property Act. (¶20, 21)
Surrender — Terms of the agreement — Reversion of possession negatives surrender —
Held further: Surrender must appear from the agreement's own terms or conduct inconsistent with continuing tenancy — as in R. Kanthimathi, where possession was expressly acknowledged as already surrendered. The present agreement instead provided for reversion of possession "as it was" if the loan fell through, negativing any surrender. (¶12, 22)
Section 53A — Part performance — Possession must be referable to the agreement —
Held further: Continuous possession as a tenant after an agreement to sell is not part performance under Section 53A unless referable to the agreement rather than the antecedent tenancy. Having entered as a tenant, the petitioner could not show his possession had become that of a transferee. (¶18, 24)
Registration Act, 1908 — s.17(1A) — Unregistered agreement — No s.53A protection —
Held further: An unregistered agreement to sell executed after the 2001 amendment to Section 17(1A) of the Registration Act has no effect for the purposes of Section 53A. The petitioner could not invoke that protection, and the Special Leave Petition was dismissed. (¶25, 29)
In the Court's own words
Paragraph 18This Court in Vayyaeti Srinivasarao (supra) further considered the interplay between Section 53A of the TP Act and the continuance of tenancy subsequent to the agreement to sell. It was observed that Section 53A operates as a shield for a transferee who has taken possession pursuant to a contract of transfer, or who continues in possession in part performance thereof and has done some act in furtherance of the contract, thereby debarring the transferor from enforcing any right in respect of such property. Significantly, this Court categorically held that the continuous possession of a tenant in the suit property even after entering into an agreement to sell would not by itself amount to part performance so as to put the tenant in possession pursuant to the agreement to sell. It is only where the tenant is inducted into possession for the first time subsequent to the contract that it would constitute strong evidence of possession changing hands pursuant to the contract.
Paragraph 24At this juncture, it is also apposite to turn to the contention of the petitioner/defendant, that his possession subsequent to the agreement to sell was that of a prospective purchaser under Section 53A of the TP Act. This submission, however, is sans merit. This Court in D.S. Parvathamma v. A. Srinivasan[^8] laid down the foundational principle governing such a situation, holding that when a person already in possession of the property in some other capacity enters into a contract to purchase the property, to confer the benefit of protecting possession under the plea of part performance, his act effective from that day must be consistent with the contract alleged and cannot be referred to the preceding title, and that having entered into possession as a tenant and having continued to remain in possession in that capacity, a tenant cannot be heard to say that by reason of the agreement to sell his possession was no longer that of a tenant. Tested on the touchstone of the aforesaid principle, the petitioner/defendant having been in possession as a tenant prior to the execution of the agreement to sell and having neither alleged nor established that his possession as lessee ceased, and commenced as that of a transferee under the agreement to sell, his conduct throughout including continued occupation without any disavowal of his character as a tenant is wholly inconsistent with the plea of part performance.
Acts & Sections
Transfer of Property Act, 1882 — s.111(e)Transfer of Property Act, 1882 — s.111(f)Transfer of Property Act, 1882 — s.53ATransfer of Property Act, 1882 — s.54Registration Act, 1908 — s.17(1A)One judgment a day. That's the whole habit.
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