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Which equitable maxim best explains the priority rules in sections 48, 78 and 79 of the Transfer of Property Act, 1882?

Question and options

Which equitable maxim best explains the priority rules in sections 48, 78 and 79 of the Transfer of Property Act, 1882?

  1. Where equities are equal, the first in time shall prevail

  2. Equity delights in equality

  3. He who seeks equity must do equity

  4. Where there is equal equity, the law shall prevail

Answer and explanation

Correct answer: A - Where equities are equal, the first in time shall prevail

These sections apply the maxim qui prior est tempore, potior est jure: where equities are equal, the first in time prevails. Section 48 makes a later inconsistent right subject to the earlier right unless a binding special contract or reservation provides otherwise. Section 78 postpones a prior mortgagee whose fraud, misrepresentation or gross neglect induced the later advance. Under section 79, a prior mortgage securing future advances, a running account or future engagements takes priority up to its stated maximum over a later mortgage made with notice of the earlier mortgage.

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