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Doctrine of Priority
Course: Property law (2048)
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Students shared 239 documents in this course
University: Karnataka State Law University
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Doctrine of Priority
As the title itself suggests, the doctrine tells about who would be given the
priority over others or who would be preferred first. The courts have faced and
still face a lot of problems in determining as to whose rights are to be given the
priority over the other when parties before the court have conflicting interests.
The doctrine of Priority solves this problem faced by the courts to a large
extent.
This doctrine is embodied in Section 48 of the Transfer of Property Act, 1882.
The need for the doctrine is, there arises the situation where the transferor of
property deals with the same property or transfers or creates rights in the
same property, to different people subsequently.
The question as to who will have the right over the others in cases where the
rights of subsequent transferees are clashing and there is no contract between
the parties to deal with the same would be determined by Section 48 of TPA.
I. Essentials of Section 48
The transferor transfers the rights in the same immovable property
At different times – one interest created should be prior in time and another
should be subsequent.
Such rights created cannot coexist or cannot be enjoyed in full extent together
Then, each later right created is subject to the previously created rights.
Provided that there is no contract to the contrary or reservation binding the
earlier transferee.
Note: the property in question must be the same and the rights created in
favour of different transferees must be in conflict in order to attract this
principle. Qui prior est tempore potior est jure – Basis of the principle
This rule is based on the maxim Qui prior est tempore potior est jure which
stands for: he who is prior in time is better in law, meaning that the
subsequent dealings by the transferor of the same property cannot prejudice
the rights of the transferee of the same property (prior transferee).