Under Section 48 of the Transfer of Property Act, a person cannot transfer a greater interest than they possess — the earlier transfer governs.

The Legal Question Before the Court

The dispute arose from a Chennai property transaction where the prior sale deed in favour of one party had created a right of way (easement by grant) over a specific passageway. A subsequent purchaser of the property claimed an exclusive right over the same passageway, denying the earlier grantee access. The court was asked to resolve this conflict of interests using the priority rule under the Transfer of Property Act, 1882.

The Court's Decision

The court applied Section 48 of the Transfer of Property Act, 1882, which embodies the nemo dat principle: a person cannot transfer a right greater than what they themselves possess. Where the prior sale deed had created a right of passage in favour of the plaintiff's predecessor, the subsequent transferee of the servient tenement took the property subject to that pre-existing right of passage. The subsequent transferee could not claim to extinguish the earlier-granted easement.

The right created by an earlier transfer is binding on all subsequent transferees of the property — whether they were aware of it or not, provided the instrument was properly registered. The principle ensures that property rights — once created through registered instruments — are stable and enforceable against the world at large.

The Court's Reasoning

The court examined Section 48 of the TPA alongside the registration provisions of the Registration Act, 1908. A registered instrument creates a public record; subsequent purchasers are deemed to have constructive notice of all registered encumbrances and rights affecting a property. The duty of due diligence requires any purchaser to examine the title chain — including all registered documents affecting the property over a reasonable period — before purchase.

The court also considered the distinction between an easement of necessity (arising by operation of law where a landlocked property has no other access) and an easement by grant (created by express provision in a registered deed). An easement by grant, once created and registered, is a real right that travels with the property and binds successive owners of the servient tenement.

Practical Implications — What This Means Today

This ruling directly informs property due diligence practice in Kerala and across India. Title verification must extend beyond the last conveyance deed — it must capture all registered instruments that may have created easements, rights of way, covenants, or other encumbrances affecting the property. A buyer who relies only on the immediate vendor's title and ignores prior registered instruments affecting access and use rights does so at significant legal risk.

In Kerala property practice, disputes over access roads, shared passage ways, and boundary rights are common — particularly in areas where properties have been subdivided over generations. A thorough title search at the Sub-Registrar's office for the preceding 30 years, with specific attention to all easement grants and rights-of-way, is essential before any purchase or development decision.

Relevant Statutory Provisions

  • Section 48, Transfer of Property Act, 1882 — Transfer by person with limited interest — priority of earlier transfer
  • Section 4, Transfer of Property Act, 1882 — Chapters and sections of Act — definitions
  • Sections 4–8, Easements Act, 1882 — Creation of easements by grant
  • Section 17, Registration Act, 1908 — Compulsory registration — rights in immovable property

Analysis by Vinode V. Luka, Advocate | Published: May 2026 | Last reviewed: May 2026