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Properties And Rights Which Are Transferable And Which Are Non-Transferable

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 and ambit.[1]

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.[2] The Act specifically encompasses two types of property namely (i) movable and (ii) immovable.

Movable Property – movable property shall mean property of every description, except immovable property;[3]

Immovable Property – immoveable property does not include standing timber, growing crops or grass; instrument , means a non-testamentary instrument;[4] 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; [5] The capacity in a thing of suffering alteration vis-a-vis surface is its movability whereas immovability pertains to such alteration.[6]

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 -
  1. One or more other living persons; or
  2. To himself; or
  3. To himself and one or more other living person
The word living person are also said to include-
  1. A company, or
  2. 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.[7]
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.[8] 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. [9] 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. [10] 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.[11] 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 force-,[12]
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.[13]

The different exceptions are summarized as follows:

Section 6(A): Spes Succession Is

This clause provides that the following cannot be transferred:
  1. The chance of an heir-apparent succeeding to an estate;
  2. The chance of a relation obtaining a legacy on the death of kinsman;
  3. 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.[14]

In Suryaprabhakar Rau v. Gummudu[15] 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.

Illustration: 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)[16], 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.[17]

Illustration: 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 one. [18]

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;[19]
  1. A religious office
  2. Emoluments to a priestly office
  3. A right of pre-emption
  4. Service tenures

Illustration: 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,[20] 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,[21] 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[22]. However, property with an incidental right to sue for damages may be transferred[23].

Illustration: 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 recover damages.

In Palani Goudhan v. Nallapa Goundan[24], 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.

Illustration: 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,[25] 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:
  1. Stipends allowed to military, naval, air force and civil pensioners of Government
  2. 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,[26] 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 Transferee:

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.

Illustration: 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 lawful.

Joydev Sen v State of West Bengal, [27]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.

Illustration: A farmer cannot give up his interest in a holding to pay his debt to a creditor.

In Jagat Narain v, Laljee[28], 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.

  1. Mata Din v Kazim Husain (1891 ILR 13 All 432, p 473; Bansigopal vs K Banerji AIR 1949 All 433.
  2. Jones v Skinner (1835) 5 IJ 546
  3. General clauses Act, section 3(38)
  4. Section 3, Transfer of Property Act, 1882.
  5. General clauses Act, section 3(26)
  6. Sukry Kurdepa v Goondakull (1872) 6 Mad 71.
  7. Transfer of Property Act, Sanjiva Row, Volume 1, Edition 7th.
  8. Naranbhai Dahyabhai v Suleman Isujbi, (1975) 16 GLR 289 (294) (Guj).
  9. Weavers Mills. Ltd. v. Balkis Ammal, AIR 1969 Mad 462.
  10. Official Assignee v T.D. Tehrani, AIR 1972 Mad 187 (188).
  11. Law of Properties, S.R. Myneni.
  12. Transfer of Property Act, Section 6, 1882.
  13. H.R. Khanna and P.M. Bakshi, Mulla, The Transfer of Property Act ,7th ed.,Universal Law Publishing, (1985).
  14. Sheshammal v Hasan Khani Rawther
  15. Suryaprabhakar Rau v. Gummudu, AIR1925Mad 885.
  16. Vaguram v. Rangayynagar, 31 All 304
  17. Satyanarayana v Lakshmayya, AIR 1929 Mad 79.
  18. Satyanarayana v Lakshmayya , AIR 1929 Mad 79
  19. Avtar Singh, Textbook on The Transfer Of Property Act, 1882, Universal Law Publishing, 2nd Edition, 2011, (page44).
  20. S. Rathinam v LS Mariappan, AIR 2007 SC 2134
  21. Ashfaq Mohammad Khan v Nazir Banu,[21] AIR 1942 Oudh 410
  22. Rushi Behera v. Poncha Behera, 1976 Cut LT 330
  23. New Central Jute Mill Co. v. Rovers Steam Navigation Co, AIR 1959 Cal 352.
  24. Palani Goudhan v. Nallapa GoundanAIR 1951 Mad 817
  25. Divisional Accounts Officer v Radha Kissen, AIR 1959 Cal 666
  26. Sundariya Bai Chaudhary v UOI, AIR 2008 MP 227
  27. Joydev Sen v State of West Bengal, [27]AIR 2010 (NOC) 256 Cal
  28. Jagat Narain v, Laljee , AIR 1965 All 504.

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