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Define Transfer of Property and Enumerate Property Which Cannot

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33 views5 pages

Define Transfer of Property and Enumerate Property Which Cannot

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sbrb283
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Define transfer of property and enumerate

property which cannot be transferred


Introduction
The Transfer of Property Act, 1882, is a key legislation in Indian law that governs the transfer
of property rights between living persons. Section 6 of the Act is particularly significant as it
delineates which types of property can be transferred and which cannot. Understanding
these distinctions is important for legal practitioners, property owners and potential buyers
or transferees. This article provides an in-depth analysis of transferable and non-transferable
property under the Transfer of Property Act, 1882, focusing on the provisions and
exemptions laid out in Section 6.
 The Transfer of Property Act, 1882 (TPA) provides for law relating to transfer of property by
act of parties.

o Section 6 of TPA enumerates the kinds of property which cannot be transferred.

 The reasons for placing restrictions on transferability are

o Public policy;
o The right is personal to one exercising it;
o The right is intrinsically connected to larger property or right which is not
being transferred.

What is transfer of property under the transfer of property act-


According to Section 5 of the Transfer of Property Act 1882, the Act of a live
person transferring property to one or more living individuals, himself, and
other living persons is considered a property transfer. The phrase "assignment"
can refer to selling a home, transferring a mortgage or other property right, or
assigning a debt. This transfer must take place at a time when the property is in
existence. Companies, organisations, and other groups of people are all
included in the definition of "living person," omitting only the specific laws that
apply to such entities.
What Property cannot be Transferred?
 Section 6 of TPA provides for property which cannot be transferred – The property which
cannot be transferred is as follows:

o Spes Successionis: This would mean chance of a person obtaining a right in the
future, clause (a) of Section 6 mentions the following possibilities:

i. the chance of an heir apparent succeeding to an estate;

ii. the chance of a relation obtaining a legacy on the death of a kinsman;

iii. any other mere possibility of a like nature.

 The policy behind this is that a person can only transfer what he
owns.

 Therefore, unless the heir succeeds to the estate of predecessor, any


transfer by him is a mere possibility.

Example: Consider a family where Father Ram owns a property and his son Shyam is the heir
apparent. As long as Ram is alive, he retains full ownership of the property. Shyam cannot
sell or transfer the property without Ram’s consent. If Ram dies intestate (without a will),
Shyam may inherit the property. However, if Shyam attempts to transfer his future
inheritance while Ram is still alive, such a transfer would be void ab initio (void from the
outset). This provision was upheld in the case of Official Assignee, Madras v. Sampath Naidu,
where the court observed that a mortgage executed by an heir apparent is void even if he
subsequently acquires the property as an heir.

o Mere right to re-entry:


 Next right which cannot be transferred is mere right to re-entry under Clause
(b) of Section 6.

 The right of re-entry refers to the right to resume possession of


land that has been given to another person for a certain
period. This right is commonly seen in lease agreements,
where the lessor can re-enter the premises if the lessee fails to
pay rent or breaches other terms of the lease.
 Example: In the case of Re Davis and Company, A purchased
goods from B under a hire purchase agreement that included a
right of re-entry clause. If A failed to pay the installments, B
could enter A’s premises and reclaim the goods. However, the
right of re-entry is a personal right and cannot be transferred
by B to another party. Any attempt to transfer this right would
be void.
o Easementary Rights:
 Clause (c) of Section 6 of TPA provides that an easement cannot be
transferred apart from dominant heritage.

 An easement is a right that the owner or occupier of certain


land possesses for the beneficial enjoyment of that land. This
right allows them to do something on another’s land or prevent
something from being done. Easements include the principle of
“profits à prendre,” which means the right to enjoy benefits
arising from the land.

 Example: If A has the right of way over B’s land to access his
own property, this is an easement. Similarly, in Ganesh
Prakash v. Khandu Baksh, it was held that the right to dry
clothes over the roofs of shops constitutes an easement.
Importantly, an easement cannot be transferred apart from the
dominant heritage to which it is attached, as established
in Sital v. Delanney.

o Property Restricted in Enjoyment to


Owner
 Clause (d) provides that if the interest is restricted in enjoyment to the
owner only, it becomes non-transferable.

 Examples of such rights are the maintenance granted to wife on divorce,


alimony ordered to be paid on her judicial separation.

o Right to future maintenance


 Clause (dd) added by way of Amending Act of 1929 provides that right to
future maintenance cannot be transferred.

 The need for adding this clause was that even though transfer of right to
maintenance was prohibited by virtue of clause (d), some Courts held that if
the amount of maintenance were fixed by decree or agreement it could be
transferred.

 This clause was therefore introduced to protect this right created for the
personal benefit of the qualified owner.

Example: A woman’s right to receive maintenance from her husband under a


court decree or to receive a share of his property upon his death is personal.
This right cannot be transferred or attached by a court’s decree, as upheld
in Dhupnath v. Ramacharit.
o Right to sue
 Clause (e) of Section 6 provides that mere right to sue cannot be transferred.

 However, if the decree for damages has been passed it can be transferred as
it is no longer a mere right to sue.

 A right to recover mesne profits is a mere right to sue and is not transferable.

 The Privy Council in the case of Manmatha Nath Mullick v. Hedait Ali
(1931) laid down the difference between actionable claim and a mere right
to sue.

Example: In Sethupathi v. Chidambaram, the court held that a bare right to sue,
where the transferee has no interest other than the right to sue, is non-transferable.
For instance, if A contracts to buy goods from B and fails to take delivery, causing B a
loss, B cannot transfer the right to recover damages to C. Such a transfer would be
invalid.

o Public office and salary attached


to public office
 Clause (f) of Section 6 provides that public office and salary attached to it
cannot be transferred.

 An office granted to a person is personal to the incumbent and hence cannot


be transferred.

o Stipends allowed to military, naval,


air force and civil pensioners
 Clause (g) of Section 6 of TPA provides that stipends allowed to military,
naval, air force and Civil pensioners of Government and political pensions
cannot be transferred.

 An example of this clause can be found in S. 11 and S. 12 of Indian Pensions


Act, 1871 read with S.6 of Transfer of Property Act which prohibits the
voluntary or involuntary alienation of pensions.

o Three categories of transfer that cannot happen


 Clause (h) of Section 6 provides for three categories of transfer that cannot
happen.
 Transfer that is opposed to nature of the interest affected thereby
Res nullius, Res communes and res extra commercium fall under this. This
would mean things which are owned by none like air, water, land etc.

 Transfer for Unlawful Object or Consideration:

 Transfer to Legally Disqualified Persons: A transfer to a person legally


disqualified to be a transferee is not permitted. Under Section 7 of the Act,
the transferee must be competent to contract and not legally disqualified.
An example of this is found in S. 136 of the TPA which provides for the
incapacity of officers connected with Courts of Justice.

Conclusion

The Transfer of Property Act, 1882, particularly Section 6, provides a comprehensive framework for
understanding which properties can be transferred and which cannot. By clearly defining transferable
and non-transferable properties, the Act ensures legal clarity, protects individual rights and maintains
the integrity of property transactions.

Under TPA, the general rule as enunciated by Section 6 is that property may be transferred. However,
there are certain exceptions based on principles of public policy. These exceptions are provided from
Clause (a) to Clause (i) of Section 6 of TPA.

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