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Priority of rights created by transfer u/s. 48 of Transfer of Property Act

The Transfer of Property Act, 1882

48. Priority of rights created by transfer.—

Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

CASE NOTES

This section provides that when with respect to one property documents of transfer of rights therein are executed at different points of time, then, earlier documents would prevail over later documents.

When a person owns a property he owns a bundle of rights ie an owner may let out the property-one right, he may then mortgage the same- second right, and then he may sell whatever rights remaining, in him as a mortgagor of a tenanted property-a third right.

Rights which are talked of in any property which is the subject matter of Section 48 of the Transfer of Property Act, would include rights either in whole or in part of the property and either entire ownership rights or even part rights in the property.

Section 48 of the Transfer of Property Act specifically uses the expression rights in an immovable property and not complete ownership rights indicating that once different rights exist in an immovable property; qua one right in an immovable property which is transferred at one earlier point of time, the said earlier transaction will prevail over a right of the same nature created later qua the same immovable property.

For example, if a tenancy right is created with respect to one floor in a property on one date and thereafter tenancy rights are again created with respect to the same floor on a later date, then the earlier tenancy rights created will prevail over the later created tenancy rights. Tenancy rights are obviously lesser rights than the complete ownership rights in a suit property.

Therefore, if valid rights are created as per the doctrine of part performance of Section 53A of the Transfer of Property Act in favour of the plaintiff, even if thereafter there are rights created in the suit property in favour of defendant in terms of the later documents relied upon by them, such later documents are of no purport and effect because once rights have already been transferred by an earlier set of documents, merely because subsequent set of documents are created the said later documentation cannot transfer rights ie nemo dat quod non habet. [Vaneeta Khanna Vs. Rajiv Gupta [Delhi High Court, 1 Oct 2015]

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