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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM, AP,

INDIA

PROJECT TITLE

DOCTRINE OF PRIORITY

SUBJECT

TRANSFER OF PROPERTY

NAME OF THE FACULTY

P. JOGI NAIDU

SUBMITTED BY

Aleena Maria Moncy, 2017007

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 3
APPLICABILITY OF THE RULE ................................................................................................ 5
OWELTY OR EQUALITY OF PARTITION ................................................................................ 6
EXCEPTIONS TO THE RULE...................................................................................................... 8
PRIORITIES IN THE LAW OF MORTGAGES ......................................................................... 11
TRANSFERS EXECUTED ON THE SAME DATE .................................................................. 14
THE POLICY OF SECURITY OF TITLE .................................................................................. 15
CONCLUSION ............................................................................................................................. 17
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INTRODUCTION
“It is a serious problem to identify the priorities and rights of successive assignees who has the
same rights or any other overlying rights. When two interests which are equitable in nature and
competing with each other exist then the time period in which the laws came into existence will
determine the strength of the laws and this is explained through the maxim “qui prior est
tempore potior est jure”. It means that the laws which came into existence from the initial stage
itself will prevail over the other laws which came later. This concept is well explained in Section
48 of Transfer of Property Act, 1882 which explains the principles based on the priority and
the grounds on which it exist.”

“This section has the foundation on the principle that “no man can convey a title than what he
has” which means that no person can transfer his/her title more than what he possess. It is a
principle based on natural justice and it is purely based on the grounds mentioned under this
particular section that if any conflict arises between two equals who have the same rights, then
the person who has the advantage in time will also have the advantage in law. This will come
into place only when there is any kind of conflicting equities and in such a state it is solved based
on this principle.”

“In Duraiswami Reddy v. Angappa Reddy the Madras High Court held that even if the first
transferee did not register the document he will be entitled to enforce his rights. It was further
held that even if the subsequent transferee enter into transactions in good faith without having
any knowledge about the earlier transaction the prior transferee can enforce his rights. This result
is implicit and it is a direct consequence of two Acts (Section 47 of the Indian Registration
Act, 1908 and Section 48 of the Transfer of Property Act, 1882) combined together. In this
case it was also observed that right of priority of first transferee will be post ponded only if the
subsequent transferee establishes any kind of fraud, negligence or any other such related acts.”

“According to this section, it is said that if a person has already affected a transfer, he cannot
drift away from his grant and deal with his property free from the rights acquired by that
particular person through the earlier transaction. Section 48 of the Transfer of Property Act, 1882
determines the priority when there are many transfers which are succeeding one after another.
The right of priority is defined in Section 78 of Transfer of Property Act, 1882 which tells
about the exceptions under the doctrine of priority given under Section 48. It performs as
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exclusion by permitting succeeding mortgagee to have superiority on the previous mortgagee. It

also tells about the privileges that can be obtained by the mortgagee according to the time of
entering into the transaction, i.e. previous mortgagee can claim the privileges only after the other
succeeding mortgagee receive the benefits.”

“In K.H.Nathan v. Maruthi Raothe Supreme Court held that from the day of registering the
mortgage the mortgage- deed will come into effect and start functioning. It will succeed till a
time when the transfer will take place between the implementation and registering of the
previous transaction. The transferor cannot prejudice the rights of the transferee by any
subsequent dealing with the property. An owner of a property can assign either all or any of his
rights in the property i.e. he may sell the property, mortgage it or give on a lease. When he sells
the property all his rights in the property are transferred to the transferee but when he lets it or
mortgages it, only some of the rights are transferred.”

“This section says that if there are successive transfers of the same property, the later transfer is
subject to the prior transfer. In the Companies Act of 1956, Section 429A, did not specifically
provide for rights of priorities over mortgaged assets. In such a case, the specific provision
contained in Section 48 of Transfer of Property Act, 1882, becomes applicable. The section
provides that the claim of the first charge holder would prevail over the claim of the second
charge holder.”
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APPLICABILITY OF THE RULE

“Section 48 of the Transfer of Property Act, 1882is applicable when there is a competition
between a mortgagee and a succeeding purchaser on the grounds of deposit of title- deeds. This
particular section does not tell about any kind of exceptions.”

“In Sitaram v. Rajnarain, there was a question of priority between a mortgagee and the
succeeding purchaser. It was held by the court that the question of priority is governed by
Section 48 and there is no governance of the provisions of Section 41 and there is no evidence or
proof regarding the negligence or any kind of negligent act from the part of the mortgagee. When
it comes to determining the right of priority we can see that it can be done by the collective
operation of Section 48 of the Transfer of Property Act, 1882 and Sections 47 and 49 of the
Registration Act.”

“If any unjustifiable or unnecessary importance is given on Section 49 of the Registration Act
specially and in isolation then it is said that the other equally important provisions of the other
two sections, Section 47 of the Registration Act and Section 48 of the Transfer of Property Act,
1882 would be rendered as irrelevant and insignificant. Section 49 of the Registration Act would
become irrelevant once the document get registered and the document will take effect based on
the other two sections, Section 47 of the Registration Act and Section 48 of the Transfer of
Property Act, 1882from the date of its execution.”

“When comparing the charges which the plaintiff has and the charge that the defendant has it is
clear that the charge which the plaintiff has is not entitled to priority or his charge is not
considered to be equal with that of defendant. Hence the defendant will be entitled to priority
over the charge in plaintiff’s favor. Following lease cannot operate to the preconception of the
old tenant.”
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OWELTY OR EQUALITY OF PARTITION

“When there is partition in the joint family it is not possible to divide it according to the metes
and restrictions as there will be unequal distribution of property among the different members of
the joint family. Such a distribution will result in division of properties of unequal volume. There
will arise a situation where the properties of larger volume will go to some people and some
others will get properties of smaller volume. When such a situation comes there has to be some
adjustment in the values and the person who got the property of smaller volume has to equalize
with the person who got the property of larger volume by providing payment to that person so
that there would not be any kind of difference in the division. Such a position has been
recognised in law and there is a provision in law for such kind of payment which is named as “a
provision for the owelty or equality of partition”.”

“When there is an excessive allotment of property to one of the co- sharer, the other co- sharer is
eligible and he has the right to acquire it, thereby this provision for owelty is construed as a lien.
Such a provision of owelty creates a lien ordinarily or a charge on the land taken under the
partition.”

“It shadows that when an owelty is presented to a participant on the partition for equalization of
the portions on an extreme allocation of immobile or permanent possessions to alternative or the
other participant of the combined family, such kind of an establishment of owelty generally
generates a lien or creates a responsibility on the property occupied below the partition. A lien or
a charge may be formed in express terms or language by the requirements of the provisions of
the partition pronouncement itself. Thus there will be anestablishment of a legal charge in favour
of a member to whom that particular owelty is conferred. If, nevertheless, no such charge is
produced in express terms, even so the lien may be existent because it is implicit by the actual
terms of the partition in the deficiency of an express establishment in that behalf. The member
whoever it is, to whom the extreme or abundantallocation of property has been made on such
partition, that person cannot point out anything to claim to procurepossessions falling to his
portionnotwithstanding of or cleared from the responsibility to pay owelty to the other
members.”

“The principle or the standard of this particular Section 54 of the Transfer of Property Act, 1882
cannot be applied in the instances where there are two interests which do not conflict or engage
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in a difference between them. Thus if we look on to a circumstance where the belongings or

possessions are mortgaged to one party and consequently if it is sold to another party who may
be unknown to the earlier party, we can see that this particular Section 54 of the Transfer of
Property Act, 1882 will not apply, because here in this case the purchaser or customer has
attained only the part of equity of renovation or improvement. So there is no struggleor conflict
between anaccomplishedtransaction and agreement for sale, as the agreement for sale deliberates
no right on the possessions. Any unregistered sale-deed, where theregistering is unavoidable or
compulsory, it will also not confer any particular rights as such upon the vendee, and hence that
particular person cannot claim as in contradiction of the registered transferee.But it is completely
the opposite when it comes to such dealings, if the latter had received some kind of notificationor
any notice about the former.”

“In a particular instance where there are three parties and if A, the first party mortgages or sells
to B, the second party and subsequently C, the third partyprocures or purchases at a Court-sale
where the then existing right, title, and interest of A, C purchases in the principal instance the
equity of renovation or redemption and in the second instance there is nothing at all. In such a
similar case the process of registration cannot help in any way because for on the very
appearance of his documentation of sale, that mentioned possession or property encompassed
therein is not at all the property conveyed to B beforehand, but it is only the remainder of the
estate of A after such kind of transmission.”

“In Chouth Mal v. Hira Lal, it was a case where an arrangement or agreement was made to sell
property or plot in favour of one of the defendant and it was implemented on January 17th in the
year 1932. The mentioned sale-deed was implemented in the favour of defendant on May 5th in
the year 1932. When all such activities were happening, in the meanwhile the owners executed a
usufructuary mortgage of the same land in the favour of plaintiff' on February 20th1932. It was
held by the court of law that the mortgage must have its due consequence as against the
succeeding sale.”

“It is seen that once if it is acknowledged that the parties involved are really anticipatedwith the
intention to transfer the suit possessions and ownership of the above said properties was in fact
distributed or delivered to the conveyee in acquirement of the said transportation or conveyance,
the ordinary omission of the numbers of the plot in the sale-deed is not of any much serious
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significance. According to the Section 48 to the Transfer of Property Act, 1882it is seen that if
the same property has been transmitted at dissimilarperiods the consequenttransmission shall not
deliberate any right, title or interest on the grounds or basis of the succeedingtransmission vis-à-
vis the first transfer.”

EXCEPTIONS TO THE RULE

1. Salvage Charges

“When we look onto the exceptions under the rule we can see that an exception to the rule qui
prior est tempore is to be found in the salvage charges produced on interpretation of
improvementscompleted to protect the overloadedor burdened possessions from forfeiture,
damage or devastation. We can see that any kind of such developments are payable in
precedence to all other charges which are present of previous date, and between themselves they
have superiority in the oppositedirection or order of their corresponding dates.On the basis of the
same principle, where it is mentioned that the court give permissionfor the receiver to
appropriate money on a mortgage pointing that it should establish a first charge on the
belongings, it will take priority over any other mortgage though it is of an earlier date.But if
needed, in order to deliberate such kind of significance the loan must have been elevated for the
determination of conserving the property.If in such a case the Court even
inappropriatelydeliberates or confers priority, of which the mortgagees who are affected thereby
have notice about it, the order which is against them will have a great impact unless it is set
aside.”

2. Estoppel

“This particular rule also directs to the equitable principle of estoppel. In regard to this, if in a
case where the first mortgagee was a witness to the second mortgagee, even though there was no
definite proof of his knowledge about the contents thereof, yet, since there was a
presuppositionthat he might have known the same, he was postponed to the second
encumbrancer. When we look onto the instance where the registered purchaser was present in the
circumstances and time when ownership was made over to the other party who was an
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unregistered purchaser, the registered purchaser was on that explanation postpones to the
unregistered purchaser.It is said that the party who is giving off a previous mortgage cannot be
stopped but that particular person has a right to use that mortgage as a protectionor defence
against thesucceeding mortgage provided that if that person’s intention was to keep the previous
mortgage still in action.It is to be noted that there is no succeeding mortgage which is guaranteed
in law to provide notice of his encumbrance to the previous encumbrancers. In any of the casesit
is said that nothing which is less in number of estoppels would postpone him to the consequent
transferee. The rule which is applied in India is same in England also, and there is no rule
mentioned in the Hindu law which tells about requiring such kind of notices. Due to some mere
absence of any activity on the part of an equitable encumbrancer the authorities cannot
rescheduleor postpone his encumbrance.”

3. By the Registration

“The exceptions to the rule give a better idea about the various rules and regulations and also
about the conditions imposed on them. Any instrument functions from the date on which it was
executed and it is immaterial to look onto the fact that it is forcibly or compulsorily registrable,
because in that case too, it will be operating from the same date itself. In the case where two or
more number of deeds are being implemented on the same day and the instruction of their
execution cannot be determined, it is said that all the deeds will take effect at the same time
itself, and pari passu. Such a case is corresponding to that of an instance offormulating to A a
party and then devise of the same estate to B, the other party in a succeedingportion of the will,
which will give the estate to A and B either jointly or as tenants as commonly.Where there arise
a situation like two deeds having dissimilar or different dates, are registered on different days,
when we say about giving priority as between them we can see that it is determined with
orientation to the dates of the deeds and it is not with reference to the date on which they were
correspondingly registered on it and this priority is not prejudiced by the very fact that the party
who is having the advancedor future deed is in proprietorship of the property.In another instance
where after theimplementation, but before the registration, if the deed is lost or misplaced and
there was a necessity where the another party had to be executed in its place, as a substitute the
salesperson having between the two dates, he re-sold the property by a registered deed to another
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with the notification of the previous sale, it has been held that the first purchaser was allowedor
authorized to a decree on his sale-deed.”

4. By notice

“According to the Section 78 of the Transfer of Property Act, 1882 it pronounces the cases or
instances in which the rule of this particular mentioned Section would be lamented from. Thus, it
has been held by the authorities that Section 50 of the Registration Act, 1877, did not avoid or
prevent to give the holder of a consequent registered deed priority in respect of his deed over the
holder of an earlier unregistered deed not being compulsorily registrable, if in fact, the holder of
the registered deed had, at the time of its execution, notice of the earlier unregistered deed.So it
can be understood that where a bona fide contract, whether oral or written, is made for the sale of
property, and a third party, subsequentlypurchases the property with notification of the previous
contract, the title of party who is demanding under the previous contract succeeds against the
consequent purchaser, although the latter’s purchase may have been registered, and even though
he has acquiredownership under this consumption.”

5. By possession.

“If a person who is about to take a mortgage which is supposed to be made by registered deed,
finds some person other than the intending mortgager in possession of it, then the fact of such
possession is appropriate to put that there would be mortgagee on request for information as to
the title of such person on the property, and if the title of such person is that of a previous
mortgagee under a particular manuscriptwhich is not compulsorily or forcibly registrable, the
second mortgagee cannot in any way, by receiving his mortgage registered, achieve or obtain the
precedence over the first mortgagee. Ownership or possession in certain cases is the notice or
notification of the title of the person who is in possession or ownership and a party who
isanticipating with an intention to contract with the mentioned possessions is guaranteed to
questionor conduct inquiry into the nature and grounds of such kind of the possession. If it is
assumed by the person that the inhabitant is a occupant and it appears to be that he had since
acquiredor purchased the land, the succeeding transferee would be pretentiousand affected with
the particular notification or notice of the acquisition.”

6. By decree or order
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Under this particular exception it can be seen that a decree or order which isapproved in respect
of a property or a possession does not by itself obtainor procure any importance or priority over
enumeratedor registered deeds. A decree or order which is acquired upon an unregistered
previous deed which is against the mortgagor alone and not accompanied by anyone else,
consequently to a registered transfer of the mortgaged property, does not achievefondness in
opposition with the concluding one.

PRIORITIES IN THE LAW OF MORTGAGES

If we are talking about the common law, priority of right as amid uninterrupted transmissions of
benefits in terrestrial land by the same transferor is decided and approved based on the priority in
time.1“As between challenging following equitable interests in the same subject matter, produced
by the same transferor, the universal equitable doctrine regarding priorities is that .the instruction
of time administers. In an instance where if the owner of an equitable interest, the legal estate
being unresolved, has mortgaged his interest or approved an allowance and
subsequentlycommences to deliver his entirenotice to a purchaser, the concludingobtains only
such interest as it was left in his transferor after the mortgage or allowance was made.”2”

“In England an equitable interest or evenhandedness has been suspended to a consequently

attained interest or equity in many other cases since there failed to obtain or maintain ownership
of the title deeds to the property in disagreement. This would infrequently, if ever, occur in the
United States of America where, under our schemes of conveyancing, the possession of the title
deeds retains no overall importance.Two overall circumstances, in association with the
ownership of the title deeds, have been obtainable by the English cases that (1) That where the
mortgagee has not achieved ownership of the deeds and (2) That where he has acquired control
of them but has reverted them to the mortgagor for some other use.”

“The cases where the first mortgagee has received the title deeds but has subsequently returned
them to the mortgagor, who has deposited them with a second mortgagee as security for a loan,
may be classified as follows: (1) Where the deeds have been returned to the mortgagor upon a
reasonable representation made by him as to the object in borrowing them, the mortgagee has not

1
Ralph W. Aigler, The Operation of the Recording Acts, 22 Mich. L. Rev. 405, 406 (1924)
2
Tiffany on Real Property, 2nd ed., § 566 (c); Phillips v. Phillips, 4 De G. F. & J. 208 (1861), per Lord Westbury
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been postponed to a subsequent mortgagee or purchaser3 and (2) Where the deeds have been
returned to the mortgagor for the purpose of borrowing upon the security of them, but with the
expectation that the mortgagor would disclose the existence of the prior mortgage, the first
mortgagee has been postponed to the second mortgagee.4”

“Where there is a contest between the claimant of a legal interest in certain land and the claimant
of an equitable interest, both of which the same transferor purported to create, the normal basis
of priority is order of time. Here, however, the doctrine of bona fide purchaser may reverse the
order. If the transferee of the legal estate was a purchaser for value without notice he will be
preferred even as against the older equity. A court of equity will not dispossess a defendant of his
subsequent original purchase of a legal interest in an estate for value without notice of the
plaintiff's prior equitable interest. The possibility of procedure of this doctrine comprises a
mortgagee, for he is considered as a purchaser pro tanto.5”

“The protection given to the bona fide purchaser had its origin exclusively in equity, and is based
entirely upon the fact that the jurisdiction of equity is ancillary and supplemental to that of the
law, and upon the conception that a court of chancery acts solely upon the conscience of litigant
parties, by compelling the defendant to do what, in foro conscientiae, he is bound to do... The
protection given to the bona fide purchaser simply means.., that from the relations subsisting
between the two parties ... equity refuses to interfere and to aid the plaintiff in what he is seeking
to obtain, because it would be unconscientious and inequitable to do so, and the parties must be
left to their pure legal rights, liabilities and remedies... In the vast majority of cases the protection
is only given to a defendant, and as a consequence the doctrine itself is commonly spoken of, and
ordinarily treated, as essentially a matter of defense.6”

“The doctrine of bona fide purchaser is not a rule of property. The application of the doctrine
does not determine the question of title between the parties. As a general rule, equity simply
refuses to interfere and do an unconscientious act by depriving a defendant of the advantage
accompanying the purchase of the legal interest made in good faith and for value. So the doctrine

3
Martinez v. Cooper, 2 Russ 196 (1826)
4
Briggs v. Jones [1870] L. R. 10 Eq. Cas 92
5
Willoughby v. Willoughby, 1 T. R. 763 (1756), per Lord Chancellor Hardwicke
6
Phillips v. Phillips, 4 De G. F. & J. 208, 217, 218 (1861)
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is generally applicable as a shield in the hands of a defendant, to protect him against the claim
asserted by his adversary.7”

“Under the bona fide purchaser doctrine notice is of importance as affecting priority of right.
Also, in determining whether competing equities are equal or unequal, notice plays an important
part. But, under the doctrine of tacking, it was settled in England that a bona fide purchaser of an
equitable interest, without notice of a prior equitable interest outstanding, might, even on
subsequently receiving notice of this interest, acquire the outstanding legal interest and thus
obtain priority over the transferee of the mesne interest. The general doctrine as to the effect of
notice on priority of right is stated to be that a transferee of a legal or equitable interest in land,
even for a valuable consideration, but with notice that another person has already received a
transfer of an equitable interest in the same property, created by the same transferor, takes his
interest subject to the prior one.8”

“Actual notice is said to be information concerning the prior claim or interest; whereas,
constructive notice assumes that no information concerning the prior claim or interest exists. The
distinction between the two classes of notice is said to depend upon the manner of obtaining
information and not upon the amount of information. In actual notice there is knowledge of the
factual basis of the prior interest. It is said that actual notice may be established as a conclusion
of fact either by direct or circumstantial evidence, whereas, constructive notice is said to be that
where information is inferred by operation of legal presumptions.”

“Where an intending transferee finds the apparent owner of property, with whom he is dealing,
in possession of all of the deeds, he is in a position analogous to that of an intending transferee in
this country who examines the record and finds the intending transferor's title free from
competing interest. In each instance, the intending transferee stands in a like position of
advantage and protection.”

“The possession of land by a tenant or lessee operates as notice to subsequent transferees not
only of interests connected directly with the lease but also of interest acquired by collateral
agreements. This rule prevails both in England and in this country.In some jurisdictions it has

7
German Savings & Loan Soc. v. De Lashmutt, 67 Fed. 399 (1895), per Bellinger, J
8
Clark, Principles of Equity, § 304
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been decided that where a grantor of land remains in open, notorious, and exclusive possession
thereof after a conveyance of the premises by him, such possession is sufficient to put a
subsequent transferee of the same premises upon inquiry as to the equitable rights of such
grantor.' These decisions have proceeded upon the theory that the fact of such possession is, of
itself, inconsistent with the legal effect of the grantor's deed and the immediate right of
possession by his grantee-a fact that should favor the presumption that some interest in the
premises still remains in the grantor. And this rule prevails even in a jurisdiction where a statute
provides that "the property and possession of the grantor passes fully by his conveyance as if
seisin had been formally delivered.”

TRANSFERS EXECUTED ON THE SAME DATE

If two or more transfers are executed on the same date, then the evidence may be taken as to
which was executed first and that will have the priority. There are many exceptions to the given
rule.

 Section 50 of the Registration Act gives priority to a subsequent registered deed over a
prior unregistered deed of which the registration is optional. However this exception is
subject to the doctrine of notice.9
 Where transfer deed is executed through fraud, misrepresentation, or gross negligence of
prior transferee (mortgagee), the priority of the prior mortgagee will be postponed.
(Section 78, Transfer of Property Act).
 In a suit for partition, if the receiver under the direction of the government mortgages the
whole or part of the estate, the mortgagee would be entitled to priority over an execution
creditor by whom the property was attached after the commencement of the suit for
partition.10
 The lien of a co- sharer for owelty (It is an equalization charge. It is defined as the
amount that one co-owner must pay to another after a lawsuit to partition real estate, so
that each co-owner would receive equal value from the property) money on partition is

9
Hathi Singh v. Kuvarji, (1886) 10 Bom 105
10
Herumbo Nath Banerjee v. Satish Chandra, (1906) 33 Cal 1175
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entitled to precedence over prior mortgages of property allotted to the co- sharer who is
liable to pay for owelty.11
 A previous mortgage by a co- owner of his share was subject to a prior charge created by
a manager over the whole estate under Section 98 of the Bengal Tenancy Act (Bengal
Act of 1885).

THE POLICY OF SECURITY OF TITLE

“In regard to larceny, finding, adverse possession and prescription the policies adopted by our
legal system includes encouraging certainty, finality, or repose with to who has a right to a given
resource. Such security is required so that persons can order their affairs upon certain
assumptions concerning their rights and the rights of others. No one wants to buy a house from a
seller who might or might not own it. The buyer wants to be able to rely that indeed his seller can
give him rights that are both stable and predictable. Likewise, an owner with doubtful title will
himself have little incentive to use the resource productively if he doubts that he can keep the
fruits of his labor. A person will more likely build upon land he knows he can keep than upon
land whose title is not secure. In that sense, then, the policy in favor of security of title may be
said to be just another aspect of the previously discussed policy encouraging productivity.
Security also serves to prevent unlawful incursions and physical confrontations as well. If the
law decrees that a person in possession has a right to a resource this may deter another from
attempting forcibly to take it from him.”

“There is one additional reason not to have an automatic prior possessor rule. In a lawsuit the
plaintiff, as the person asking the court to change the status quo ante to a more favorable position
for him, ordinarily has the duty of demonstrating that there is a compelling reason to do so;
otherwise the court tends to leave the parties where they were at the beginning of the case. A
prior thief suing a subsequent finder certainly is not in a position to assert such a reason. All
things considered, the justifications posed for an across the board first possessor rule do not stand
up under analysis. Rather, a comparison of the propriety or impropriety of the two possessor's
acts should help to determine which of the two should prevail. Under such an analysis it is

11
Shahebzada Mohamed Kazim Shah v. R.s. Hills, (1908) 35 Cal 388
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reasonably clear that a prior finder or thief should recover against a later thief, but that a prior
thief should not be able to recover against a later finder.”

“Prescription as a Last in Time Rule: In the case of the two succeeding thefts, the first in time
rule serves the fundamental purpose of promoting security of title by refusing to reward the
second thief with title. But what happens if the law doesn't work and the second theft occurs?
The answer is that the first in time rule operates only for a while, and then after the passage of a
statutory prescriptive period, a last in time rule applies and the second thief becomes entitled to
keep the property as against the prior (or even as against the original) owner. The statutes of
limitation on causes of action for trover, replevin, .and the like are interpreted to vest title in the
second thief by adverse possession provided that certain requirements, that the possession be
open, notorious, continuous, and hostile, are met.”

“Prescription as a First in Time Rule: Certain other kinds of rights could be acquired in England
by longcontinued but non-adverse use. For example, mere long-standing operation of a market or
a ferry, which were ordinarily monopoly rights granted by the crown, gave the operator the same
right to exclude all competitors as would a royal charter.38 These last English cases permitting
the acquisition of a prescriptive right against the world, unlike the usual prescriptive rules earlier
described, really embody a first in time or first occupant rule quite similar to that concerning
acquisition of title to wild animals. They are first in time in the sense that the person acquiring
the right does not adversely affect a previous right of another person in something or to do
something. There are, however, important differences between the wild animal cases and the
prescriptive market cases. The latter represent claims to be permitted to continue doing or using
something without fear of competitive or inconsistent acts by others. The wild animal cases
represent more: a claim to a physical asset that completely excludes the access of the rest of the
world. As we have seen, the animal cases favoring the first occupant rest upon a policy of
rewarding efforts in order to encourage productivity. A similar first in time argument
superficially buttresses the rules protecting markets from competition. Thus, it can be argued that
the English courts protected an established market or ferry in order to give persons incentives to
set up those activities initially where needed.”

“Conflicts Between Security of Title and Productivity: As we have noted above, the two policies
fostering security of title on the one hand and productivity on the other most often militate
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toward the same legal rule. A person who is secure in his ownership of aresource is more likely
to improve it or use it productively than a person who is unsure that he can keep the fruits of his
efforts. Occasionally, however, the two goals clash and the law has difficulty in working out the
appropriate results. Such a case involves disputes between various prior claimants and
subsequent purchase money mortgagees.”

In the policy of security of title it should be made clear so as to who has to get the title and also
to provide the grounds on which such title is given to that individual. The title has to be carried
on in a secured manner as it has a greater impact on the transfer of property and it has to be dealt
in a manner where a clear idea is obtained regarding the priorities and transformation of
property.

CONCLUSION

The doctrine of priorities is dealing with the transfer of title and that of the priorities. With regard
to the priorities there are many grounds on which such priorities depend upon and also such
grounds have to be taken care of while the transfer of property takes place. The transfer of title is
completely on the discretion of the person who has the possession of that particular land and the
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functions in further to it has to be dealt according to the provisions of the Transfer of Property
Act, 1882 and also based on the doctrine of priorities.

Under Section 48 of the Transfer of Property Act, 1882 it is said that the priority is determined
when there are successive transfers and such a transfer is common in any joint family and also it
is to be noted that the various actions like the transfer includes technicalities which have to be
dealt in the required manner.

As per the doctrine it is understood that when there is any transfer of title or any kind of transfer
then the provision under the Transfer of Property Act, 1882 comes into place and it will help to
determine the manner in which the various partitions should take place based on the schemes of
transfer considering the doctrine of priorities and the conditions under it.