The Transfer of Property Act of 1882 (TPA) is the backbone of property law in India. This article highlights the essential doctrines under TPA, offering a glimpse into their significance and application.
1. Doctrine of Cypress
Under the Transfer of Property Act, the concept of cypress is not explicitly provided. The term ‘cy-pres‘ is derived from the French phrase “cy près comme possible,” which means ‘as near as possible.’
Section 26 of the Transfer of Property Act is based on the doctrine of cypress. According to this, if a contract specifies that certain conditions must be satisfied before a person can acquire an interest in the property, the conditions will be deemed satisfied if they have been substantially satisfied.
2. Doctrine of Election
The doctrine of election is recognised in section 35 of the Transfer of Property Act.
The doctrine is based on equity. It says that benefit and burden must coexist and is based on the phrase “no one can approbate and reprobate at the same time.”
The term ‘election,’ as used under section 35, refers to a choice between two inconsistent rights. Accordingly, an owner who chooses to take advantage of the benefits provided through a transfer must give up any claim to the property used as collateral for the benefit.
3. Doctrine of Holding Out
It is also known as the doctrine of apparent ownership or the doctrine of the ostensible owner. It is recognised in section 41 of the Transfer of Property Act.
This doctrine applies when a person permits or holds out another person as the owner of the property and allows them to deal with it as if they were the actual owner. In such cases, the apparent owner may be bound by the acts of the person holding them out.
Under this doctrine, if someone allows another person to appear as the owner of the property, and third parties reasonably rely on that appearance in their dealings with the property, the apparent owner may be treated as the true owner. The person who permitted the appearance may be estopped from denying the apparent owner’s authority or ownership.
4. Doctrine of Feeding Grants by Estoppel
The doctrine of feeding grants by estoppel is recognised in section 43 of the Transfer of Property Act.
It is a legal principle that applies in cases where a person promises to transfer the right in the immovable property that they do not currently hold but subsequently acquire that right at any time during which the contract of transfer subsists. In such cases, the person who made the representation or promise may be estopped from denying or revoking the transfer when he subsequently acquires property.
5. Doctrine of Lis Pendens
The doctrine of lis pendens is recognised in section 52 of the Transfer of Property Act. It is a legal principle derived from Latin, which means ‘pending litigation.’
The doctrine is based on a maxim ut lite pendente nihil innovator, which means nothing new should be introduced during the pendency of the suit. It applies to immovable property that is the subject of a pending legal action.
According to the doctrine, no property can be transferred during the pendency of any suit or proceeding except if the court permits it. If the property is transferred, the transferee is bound by the court’s decision, whether or not he had notice of the suit or proceeding.
6. Doctrine of Part Performance
The doctrine of part performance is recognised in section 53A of the Transfer of Property Act. It is also known as equity of part-performance. It provides certain protections to transferees of immovable property who have taken possession of the property or have performed their part of the written and registered agreement for transfer.
Accordingly, if a person contracts to transfer an immovable property for consideration and acting in furtherance of this contract, the transferee has either taken possession or performed his part of the contract or is ready and willing to perform his part of the contract. In such a case, he would not be ejected from the property on the ground that the sale was unregistered and legal title had not been transferred to him.
7. Doctrine of Priority
The doctrine of priority is recognised under section 48 of the Transfer of Property Act.
Generally, the doctrine of priority operates on a ‘first in time, first in right‘ basis. This means that an interest or claim created or recognised earlier in time will have priority over interests or claims that arise later.
While the Doctrine of Priority generally follows a chronological order, there may be exceptions that affect priority. For example, the doctrine of lis pendens or estoppel may alter the priority of interests in certain circumstances.
8. Doctrine of Clog on Redemption
The “doctrine of clog on redemption” is a legal principle that applies to mortgage transactions. The doctrine is recognised under section 60 of the Transfer of Property Act.
Where an immovable property is mortgaged, a mortgagor has a statutory right to redeem or get back the mortgaged property once the debt or loan secured under the mortgage has been repaid. A clog is a condition or stipulation that prevents the mortgagor from redeeming the mortgaged property upon loan payment.
In other words, anything that interferes with the mortgagor’s right to redeem his property is null and void and considered clogged on redemption.
9. Doctrine of Subrogation
The doctrine of subrogation is recognised under section 92 of the Transfer of Property Act.
It is a legal principle that allows a person or entity to step into the shoes of another party and assume their rights, duties, or remedies. It is commonly applied in the context of insurance, suretyship, and mortgages.
Under this doctrine, the person or entity assuming the rights of another is known as the “subrogee,” while the party whose rights are transferred is the “subrogor.”
Conclusion
As we conclude our overview of these doctrines, it is evident that they represent the cornerstone of property law jurisprudence in India. By embracing these principles, we can navigate the complexities of property law with clarity, integrity, and fairness.
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