What May Be Transferred

WHAT MAY BE
TRANSFERRE
D?
S.6, TOPA
ALIENATIO REI PREFERTUR JURI
ACCRESCENDI
TESTS:-
TRANSFERABILIT
OWNABILITY
Y
RES EXTRA
RES COMMUNIS
COMMERCIUM
• SECTION 6(a)-Spes Successionis
1. Chance of an heir apparent
NON- 2. Chance of obtaining a legacy on
TRANSFERABLE death of a kinsman
PROPERTIES:- 3. Any other possibility of alike
(GIVEN UNDER nature
SECTION 6 IN 10 A person can neither transfer nor
renounce a chance of inheriting
CATEGORIES) property.
1. Chance of Heir apparent
• based on maxim “nemo est heres viventis”-a living person does not
have any heir.
• An heir is a person who succeeds to the property of another on his
death
CHANCE IS:-
WHETHER THE
PROPERTY
WHO THE HEIR
WOULD BE
WILL BE?
AVAILABLE OR
NOT?
• IF A PERSON TRANSFERS SPES SUCCESSIONIS- IT IS VOID-AB-INITIO. It
does not convey any right in favour of the transferee, even if the transferor who transfers a chance may, in
fact, become the owner of the same property in future.
ANSWER:-
• NO, because transaction was void from inception. C cannot press upon delivery of
possession.However, he would be entitled to have his amount back, that is 2.5
lakhs in this example.
• H wants to secure the property he owns in favour of W, but instead of making a

Will, he asks D to sign a release deed to the effect, that she would not claim her
share of inheritance out of the property of H, when he dies. D signs the release-
deed in favour of W. When the father dies, she claims half of his property by way
of his heir.
• YES, She can do so, as what she had transferred by way
of the release deed was her chance to succeed to the
property of the father, and as that is expressly prohibited
ANSWER:- under the Act, the same was void, and she will not be
bound by it. (SAMSUDDIN V. ABDULHUSSAIN, 1906)
PROPERTY OF ANY KIND MAY BE TRANSFERRED

BUT INTEREST ARISING IN ANY PROPERTY IN A
FUTURE DATE CANNOT BE TRANSFERRED
2. Chance of obtaining a legacy on the death
of kinsman
• Cannot be transferred.
• A legacy is money or property given under a Will. If a person expects to receive
property under a legacy, the same cannot be transferred by him before the death of
the testator.Eg: rights of a reversioner (Ananda Mohan Roy v. Gaur Mohan Malik)
3. Any other possibility of alike nature

• The term ‘of a like nature’ indicates that those possibilities that are similar to the one explained above cannot
be transferred, i.e., those based on hope or expectancy.
Rule of estoppel
• Person can neither transfer nor renounce either a chance of inheriting the property in future or
the chance of obtaining a legacy on the death of a kinsman and even if he does that, he would
not be bound by such transfer/renunciation as the same is expressly prohibited. However, judicial
interpretation of this section favours imposition of a rule of estoppel as against such transferors
who without having any present interest, agree to transfer the property based on future
possibilities for a consideration and later try to avoid the same under this legal rule.
• If the expectant heir misleads the subsequent transferee and receives the payment for same, rule
of estoppel shall be applied on him and he shall be bound to transfer the property to the
bonafide purchaser.
(Gulam Abbas v. Haji Kayyam Ali, 1973))

(Hameeda v. Jameela, 2010)
S.6(b)- Mere rt. To re-entry
• A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except
theowner of the property because it is not an independent right, it is accompanied with interest in a land
S. 6(c)- easement apart from Dominant
heritage-not an independent right
• An easement is a right which the owner or occupier of certain land possesses for the beneficial enjoyment of
his land, to do and continue to do something, or to prevent and continue to prevent something from being
done, in or upon, or in respect, of certain other land that is not his own.
Types of easementary rights
S.6(d)-Restricted Interest-personal rights
• Rts. That can only be enjoyed personally by the owner
• An interest in property restricted in its enjoyment to the owner personally cannot
be transferred by him.As the right is personal in character, it is untransferable.
• For instance, two brothers partition a property and give a right of pre-emption to
each other, i.e., if any one of them wants to sell his portion, he must first offer it
to the other brother, who would have a preferential right to buy it. This right is
personal to the brothers and cannot be transferred by them to a third party, and
if they do so, such transfer would be void.
• Other examples:- skills of a pujari, teacher,etc
s.6(dd)-right to future maintenance
• Added in year 1929.
• This term ‘whatsoever manner arising secured or determined’ is very exhaustive
and covers cases where this right has been created either under a will, deed or
compromise. Thus, the right of a woman to either receive maintenance under a
decree or award of the court from her husband, or her ex-husband, or from his
property on his demise, or under a will is a personal right. It is neither
transferable nor can it be attached by a court’s decree.
• If a right to receive maintenance were made transferable, then it would go
against the very purpose for which maintenance laws are passed.
• The very objective of maintenance is that a person unable to maintain himself or
herself should not be left destitute,and should be prevented from being in a state
of vagrancy. If it is allowed to be transferred, it will defeat this very purpose.
S.6(e)- A mere right to sue
• This is also a personal right.

• Objective is to prohibit practise of gambling out of litigation.
• “mere”/bare right to sue is non-transferable but if it is attached with a
interest n a land it is assignable.
s.6(f)-public office and salary of a public
officer
• A public office cannot be transferred. Similarly, the salary of
a public officer cannot be transferred whether before or after
it has become payable.78 The term public office or public
officer has not been defined in the TP Act, 1882. By ‘public
officer’ it is meant a person who is appointed to discharge a
public duty and receives a monetary return for it in the form
of a salary. As the salary is a return for his personal services,
it is neither transferable nor attachable.
s.6(g)- Stipends
• Stipends allowed to military, naval air force and civil
pensioners of the government and political pensions cannot
be transferred.
• Political pension refers to pensions and allowances paid to
political prisoners, or pension granted under a treaty
entered into by the Government of India with another
sovereign country.
• What is made non-transferable is the stipend paid to civil
pensioner and not the pension of that civil pensioner
S.6(h)-
• 1.Transfer opposed to nature of interest-discussed in previous slides
• 2.Transfer or unlawful object or consideration- discussed in previous
slides
• 3.Transfer to a person disqualified to be a transferee
Incompetency imposed by statutes.
Eg:- CPC O.XXI,R.73-when a person/officer assigned a duty in
connection with the sale of property.
S.136,TOPA- judge, legal prac. Or officer connected with court
S.6(i)-statutory prohibitions on transfer of
interest
• A tenant having an untransferable right of occupancy
cannot transfer his interest
• A farmer of an estate in respect of which default has
been made in the payment of revenue
• The lessee of an estate under the management of the
court of wards
THANK YOU
ESSENTIALS OF A VALID TRANSFER:-
1. PROPERTY MUST BE TANSFERABLE

2. TRANSFEROR MUST BE COMPETENT
3. COMPETENCY OF TRANSFEREE
4. CONSIDERATION MUST BE LAWFUL
5. TRANSFER MUST NOT BE OPPOSED TO NATURE OF INTEREST-S.6(h)
6. MUST BE MADE IN THE FORM AND MANNER REQUIRED BY THE
ACT-S.9
S.8-TOPA
Based on maxim:- res essorira sequiter rem principaleur
• Unless a different intention is expressed or necessarily implied,

a transfer of property passes forthwith to the transferee all the
interest which the transferor is then capable of passing in the
property, and in the legal incidents thereof.
Operation of law-section 8
Based on maxim:- res essorira sequiter rem principaleur- The accessory thing
follows the principal thing.
• Unless a different intention is expressed or necessarily

implied, a transfer of property passes forthwith to the
transferee all the interest which the transferor is then
capable of passing in the property, and in the legal incidents
thereof.

What May Be Transferred

Uploaded by

Copyright:

Available Formats

What May Be Transferred

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

What May Be Transferred

Uploaded by

Copyright:

Available Formats

WHAT MAY BE

• H wants to secure the property he owns in favour of W, but instead of making a

PROPERTY OF ANY KIND MAY BE TRANSFERRED

3. Any other possibility of alike nature

(Gulam Abbas v. Haji Kayyam Ali, 1973))

• This is also a personal right.

1. PROPERTY MUST BE TANSFERABLE

• Unless a different intention is expressed or necessarily implied,

• Unless a different intention is expressed or necessarily

You might also like