14 December 2011
According to the statutory provisions, this doctrine works as follows: A person must have contracted to transfer; the subject matter of the transfer should be any immovable property; the transfer of property should be for a consideration and the transfer should be in writing and duly signed by either the transferor or on his behalf.
Finally, from the terms of the document, it should be reasonably certain that the intent of the parties is to transfer the immovable property from the transferor to the transferee.
Further, the transferee must have, in part performance of the contract, taken possession of the property or any part of the property. In case the transferee is already in possession of the property, then he should continue in possession in part performance of the contract and must have also done some act in furtherance of the contract .
AS PER SECTION 81 OF TRANSFER OF PROPERTY ACT, 1882, IF THE OWNER OF TWO OR MORE PROPERTIES NORTGAGE THEM TO ONE OR MORE PERSON AND THEN ONE OR MORE PERSONTHE SUBSEQUEST MORTGAGES IS IN THE ABSENCE OF A CONTRACT TO THE CONTRARY ENTITLED TO HAVE THE PRIOR MORTGAGE DEBT SATISFIED OUT OF PROPERTY OR PROPERTIES NOT MORTGAGE TO HIM SO FAR AS THE SAME WILL EXTEND BUT NO HAVE TO PREJUDICE THE RIGHT OF PRIOR MORTGAGEE
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