The Transfer of Property Act (hereinafter mentioned as TOPA, 1882) was enacted
in the year 1882 to regulate the process of transferring of property and various
other conditions associated with it. Before the enactment of TOPA, 1882 these
procedures were governed by the principles of English Law and equity. The term property hasn’t been clearly defined but the Act gives it a very wide scope
Property and its types
The word ‘property’ has not been specifically defined by the legislature. The
judiciary has however interpreted it to be of widest amplitude and most generic
in legal sense Property is not only something which is subject to ownership but
also includes dominium or right or ownership or partial ownership and is
indicative of every possible interest that the party may have. The Act
specifically encompasses two types of property namely (i) movable and (ii)
– movable property shall mean property of every description,
except immovable property;
– immoveable property does not include standing timber,
growing crops or grass; instrument , means a non-testamentary
instrument; immovable property shall include land, benefits to arise out of
land, and things attached to the earth, or permanently fastened to anything
attached to the earth;  The capacity in a thing of suffering alteration vis-a-vis surface is its movability whereas immovability pertains to such
Transfer of Property
Transfer of Property has been defined under Section 5 of the Act. As per the
aforementioned provision the transfer of property is an act by which a living
person conveys property in present or future, to -
- One or more other living persons; or
- To himself; or
- To himself and one or more other living person
The word living person
are also said to include-
- A company, or
- An association or body of individual, whether incorporated or not, but
nothing in this Act affects any law relating to transfer of property to or
by companies, associations or bodies of individuals.
The word himself
mentioned herein implies that an owner of a
property, in one capacity, may transfer it to himself to hold as owner in other
capacity. The word living person
only includes within its ambit alive human beings, a
person disposing off his property by will does not amount to living person as
the transfer takes place only after his death. The provisions expressly mentions
company or association to include them under it.  In ordinary circumstances
transfer implies change of ownership and implies the presence of two persons
namely, transferor and transferee.
The word ‘transfer’ is defined in Section 5 through ‘conveyancing’ implying
transfer of right in property inter vivos.  Act includes five modes of
conveyances namely, sale, gift, exchange, mortgage and lease. The first two
convey absolute interest and the latter three limited interest. The transfer
of property may be done immediately or on a future date.
What may be transferred
Section 6 of the Act reads as, Property of any kind may be transferred, except
as otherwise provided by this Act or by any other law for the time being in
Therefore, this provision of the Act deals with the demarcation
between transferable and non- transferable property. The section has 9 sub
clauses, each of which explains the different kinds of transfer of property
that. Everything else according to the Act can be legally transferred in various
means and forms.
The different exceptions are summarized as follows:
Section 6(A): Spes Succession IsThis clause provides that the following cannot be transferred:
- The chance of an heir-apparent succeeding to an estate;
- The chance of a relation obtaining a legacy on the death of kinsman;
- Any other mere possibility of a like nature.
These restrictions are based on Public Policy. Rights falling in this category
are uncertain and are not vested or contingent interests.
Illustration: A owns a property. If A passes away, B will get the property,
because he is A’s legal heir. However, if B during the lifetime of A decides to
transfer his chance to gain a right over the property to X, it will be deemed to
be an invalid transfer. This is because one cannot transfer his chance of
succeeding to an estate.
However, this does not meant that in case a widow who has an interest in her
husband’s property, cannot transfer such interest that she has already inherited
owing to her incidental right of survivorship. Widows are allowed to validly
partition the properties and allot separate partitions to each.
When an heir received advantage for giving up his future right to property, it
was held that he could not be allowed benefit of the doctrine of spes
successionis. He became estopped from claiming his share from the property -
Sheshammal v Hasan Khani Rawther
, AIR 2011 SC 3609.
In Suryaprabhakar Rau v. Gummudu
 it was held that: when the parties entered
into a contract, there was no certainty that the land could be enfranchised,
although he was expecting it to be so done, and agreed to transfer his interest
in the property when the event had taken place. It was held, this could not be
more than a transfer of expectation and, as such, offended this section, and the
agreement was void.
Section 6(B): Right of Re-entry
As per this clause, a mere right of re-entry for breach of a condition
subsequent cannot be transferred to anyone except the owner of the property
affected thereby. The right of re-entry being a mere incident of the rights of
the owner in leased premises, its transfer is prohibited by Law.
Where X grants a lease of land to Y for 5 years. At the expiry of
5 years he transferred the right of re-entry to Z. This transfer shall be valid.
In Vaguram v. Rangayynagar,
(31 All 304), the lessee committed a breach of
the convenant to pay rent and incurred forfeiture. Thereupon, the lessor leased
the lands to another to take possession of the land from the tenant in default.
The transfer was held to be invalid.
Section: 6(c): Easement
An easement is a right to use or restrict the use of another over a property in
some way or the other. It has been defined as the liberty, privilege or
advantage one may have in the lands of another. An easement cannot be
transferred apart from the dominant heritage. Its scope is limited to easement
which exist for the benefit of the dominant tenement and has no applications to
easement not connected with possession or ownership of dominant heritage.
If A, the owner of a house, has a right of way over the adjoining
land of B. A cannot transfer this right without transferring the house.
In the case of Satyanarayana v Lakshmayya
, AIR 1929 Mad 79., it was stated that
this clause contemplates transfer of existing easement and not the creation of
Section 6(d): Restricted interest
According to this clause, a person cannot transfer an interest that has been
restricted in its enjoyment of him. This is because a transfer of such an
interest will defeat the purpose of the restriction. Various kinds of interests
have been held to be restricted under this clause, such as;
- A religious office
- Emoluments to a priestly office
- A right of pre-emption
- Service tenures
X has an exclusive right of conducting priestly ceremonies in a
temple. He is the sole owner of the right and cannot transfer that right to his
friend B who is a mechanic by profession.
S. Rathinam v LS Mariappan
, AIR 2007 SC 2134 merely because donor mother has
reserved to herself possession and enjoyment of property gifted did not render
gift deed in favor of minor ineffective.
Section 6(dd): right to future maintenance
As per this provision inserted in the year Amending Act of 1929, a right to
future maintenance in whatsoever manner arising, secured or determined, cannot
be transferred. Maintenance being for the personal benefit of a person,
therefore cannot be transferred.
In the case of Ashfaq Mohammad Khan v Nazir Banu
, AIR 1942 Oudh 410 it was
held that right to future maintenance whether acquired under a deed cannot be
attached in execution of decree.
Section 6(e): Right to Sue:
This clause provides that a mere right to sue cannot be transferred. The word mere implies that the transferee acquires no interest in the subject of
transfer other than the right to sue as an ostensible owner of the property
claimed of which, it may be, the real owner is somebody else. However,
property with an incidental right to sue for damages may be transferred.
If A publishes libel of B. B can sue A as defamatory statements
have been published. However, B cannot transfer this right to C and allow him to
In Palani Goudhan v. Nallapa Goundan
, an ex-minor transfers property that
has without authority been sold by his guardian during his minority, he transfer
not a mere right to sue but his interest on the property.
Section 6(f) Public office
A Public office is held for qualities personal to the incumbent, having a public
duty attached to it. Person being chosen due to his qualities, cannot substitute
another in his place. The office confers an interest which is restricted in its
enjoyment to the incumbent person.
A police officer cannot transfer his job to his friend who is a
salesman. He can however attach his salary within certain limits as has been
provided under section 60 of the Code of Civil Procedure, 1908.
In Divisional Accounts Officer v Radha Kissen
, AIR 1959 Cal 666 - the
abovementioned clause does not apply to arrears of a family.
Section 6(g): Stipends and Pensions:The clause lays down:
- Stipends allowed to military, naval, air force and civil pensioners of
- Political pensions,
Cannot be transferred. The object is to confer benefit of the stipend or pension
to the recipients in the capacity of a pensioner.
The term political pension
has a wider import than the term pension .
depending on whether the pension is granted or continued by Government on
political considerations. It is also exempted from attachment in execution of
decree against the pension holder under the Code of Civil Procedure, 1908.
In Sundariya Bai Chaudhary v UOI,
 AIR 2008 MP 227 (DB)—Stipends allowed to
officers and political pensions cannot be transferred.
Section 6 (h): Nature of interest, Unlawful Object, Disqualification of
According to this sub-section, transfer of any property that can lead to an act
that is (1)Against the interest affected thereby, or (2) For committing an act
that is for an unlawful object or consideration, or, (3) When is transferred to
someone who is legally disqualified to be a transferee, then such transfer shall
be deemed to be invalid.
A, B and C enter into an agreement for the division among them of
gains acquired by fraud. The agreement is void, as the consideration for it is
Joydev Sen v State of West Bengal
, AIR 2010 (NOC) 256 Cal—the petitioners
were not entitled to obtain a stamp vending license on the basis that their
father held such license.
Section 6(i): Untransferable Interests:
This clause was added in the year 1885 to remove incongruity in the non-
transferability of occupancy rights. Any tenant having an untransferable right
of occupancy cannot transfer his interest.
A farmer cannot give up his interest in a holding to pay his debt
to a creditor.
In Jagat Narain v, Laljee
, the Allahabad High Court has held that where a
Sridhar transfers his holding and subsequently becomes a Bhumidar of the
holding, the transfer becomes effective with the aid of Section 43and is not hot
by this clause.
- Mata Din v Kazim Husain (1891 ILR 13 All 432, p 473; Bansigopal vs K
Banerji AIR 1949 All 433.
- Jones v Skinner (1835) 5 IJ 546
- General clauses Act, section 3(38)
- Section 3, Transfer of Property Act, 1882.
- General clauses Act, section 3(26)
- Sukry Kurdepa v Goondakull (1872) 6 Mad 71.
- Transfer of Property Act, Sanjiva Row, Volume 1, Edition 7th.
- Naranbhai Dahyabhai v Suleman Isujbi, (1975) 16 GLR 289 (294) (Guj).
- Weavers Mills. Ltd. v. Balkis Ammal, AIR 1969 Mad 462.
- Official Assignee v T.D. Tehrani, AIR 1972 Mad 187 (188).
- Law of Properties, S.R. Myneni.
- Transfer of Property Act, Section 6, 1882.
- H.R. Khanna and P.M. Bakshi, Mulla, The Transfer of Property Act ,7th ed.,Universal
Law Publishing, (1985).
- Sheshammal v Hasan Khani Rawther
- Suryaprabhakar Rau v. Gummudu, AIR1925Mad 885.
- Vaguram v. Rangayynagar, 31 All 304
- Satyanarayana v Lakshmayya, AIR 1929 Mad 79.
- Satyanarayana v Lakshmayya , AIR 1929 Mad 79
- Avtar Singh, Textbook on The Transfer Of Property Act, 1882, Universal
Law Publishing, 2nd Edition, 2011, (page44).
- S. Rathinam v LS Mariappan, AIR 2007 SC 2134
- Ashfaq Mohammad Khan v Nazir Banu, AIR 1942 Oudh 410
- Rushi Behera v. Poncha Behera, 1976 Cut LT 330
- New Central Jute Mill Co. v. Rovers Steam Navigation Co, AIR 1959 Cal
- Palani Goudhan v. Nallapa GoundanAIR 1951 Mad 817
- Divisional Accounts Officer v Radha Kissen, AIR 1959 Cal 666
- Sundariya Bai Chaudhary v UOI, AIR 2008 MP 227
- Joydev Sen v State of West Bengal, AIR 2010 (NOC) 256 Cal
- Jagat Narain v, Laljee , AIR 1965 All 504.