What property can or cannot be transferred?

The present article What property can or cannot be transferred? | Chapter-II, Section 6 of Transfer of Property Act, 1882 deals with the concept of transfer of property.

Introduction | What property can or cannot be transferred?

The said title of the article itself emphasizes the two prima facie questions:

1. What property may be transferred?
2. What property cannot be transferred?

To have detailed research on this said topic, we need to go through the Transfer of Property Act,1882.

Chapter – II, section 6 of the Transfer of Property Act, 1882 primarily deals with the concept of transfer of property like, as mentioned above, what property can be transferred and what property cannot be transferred. It also highlights a valid transfer’s essentials and its competency to understand Section 6 of TPA, 1882 better.

It says the property includes some bundle of rights called the property in righteousness, which consists of transferring to another person. It says any property can be transferred except as otherwise provided by this act or by any other law for the time being in force.

1. Mere chance or hope of succession;
2. A mere right of re-entry;
3. Right in re- aliena- easements;
4. Personally restricted interest;
5. Right to future maintenance;
6. A mere right to sue;
7. Public offices;
8. Unlawful transfers;
9. Stipends and pensions;
10. Other occasions.

The above are exempted from the transfer; any property may be transferred other than the above listed.

Thus, the project focuses more like a doctrinal study, covers relevant case laws, various central legislations, and projects with ample research.

Chapter-II, Section 6 of Transfer of Property Act, 1882

Chapter – II, Section 6 of the Transfer of Property Act,1882, Especially deals with the concept of transfer of property like, as mentioned above, what property can be transferred and what property cannot be transferred.

The literal meaning of this section is that any property can be transferred. The law also favors alienation rather than accumulation. “Alienation rei prefertur Juri assrescendi” means the rule rather than accumulation favours alienation. But the exception is non – transferability.[1]

The clauses (a) to (i) of this section constitute exceptions to this rule; the principle laid down in this section does not apply, however, to future property.[2]

It is clear that where prohibition is imposed in such cases, the burden of proof lies on that person who alleges that the property is not assignable.[3] Where a property is transferred in violation of the provisions of this section or property is transferred in violation of provisions of this section or any other law, such transfer would be a nullity, and equity cannot arise out of such transaction.[4]

Section 6, of T.P. Act 1882,

This section defined only what property cannot be transferred as exceptions to what property can be transferred. Nowhere, in Sec.6 of the T.P.A Act explained that such property can be transferred. It only emphasizes that other than the following so-called exceptions, any property can be transferred.

Exceptions are as follows

1. Mere chance or hope of succession;
2. Mere right of re- entry;
3. Right in re- aliena- easements;
4. Personally restricted interest;
5. Right to future maintenance;
6. A mere right to sue;
7. Public offices;
8. Stipends and pensions;
9. Unlawful Transfers;
10. Other occasions.[5]^.

The above are the exceptions to the general rule of what properties can be transferred and what properties cannot be transferred. So far, it is clear that any kind of property can be transferred other than the exceptions to the general rule given above.

Mere chance or hope of succession

6 clause (a) of T.P. Act, 1882, Chance of succession or legacy or chance of an heir apparent are one other the same. Which only gives one literal meaning- “mere chance or hope of succession.” This means the right of a person to inherit the property in the future; it’s a mere chance/hope, which may happen or may not. As we have read, Section 6 of the act does not apply to future property. In England, it is known as Spes Successions.

This concept is based on a maxim called “Nemo est heres viventis,” – means no one is the heir of a living person. Even in English law, a future property cannot be transferred based on expectancy. Future properties, possibilities, and expectancies are all assignable in equity, provided it is supported by consideration.[6] In India wholly null and void.

A mere right of re-entry

6 clause (b) of T.P. Act, 1882., A right of re-entry arises only when there is a breach in the condition subsequent. And the condition subsequent cannot be transferred other than owner affected thereby. It’s an absolute right of the owner towards his tenant. Such instances arise in cases of lessor and lessee. Sec 111 of the T.P. Act embodies the right of an owner, i.e., lessor, in case of a lease; the lessor re-enters the possession of his Land from the lessee. West v. Dobb.[7]^. & Deod Palk v. Marchetti.[8]^. it was held that a right of re-entry applies only to breach of an affirmative and not to the breach of negative condition.

Right in re-aliena-easements

6 clause (c) of T.P. Act, 1882, means the transfer of easement. Easement means right over the property of another, which is nothing but right in inter aliena –’ neighbors rights.’ An easement is a right, which cannot be separated from the property. An easement is defined under Sec 4 of Easements Act 1882. An easement right is, right to water, way, air, light, and the right to take and carry away soil.

These rights are absolute rights of an owner of the land known as dominant heritage; hence, it’s clear that one without the other has no use. Thus, an easement is a legal right annexed, embodied to the owner of the land having dominant heritage, which cannot be separated nor transferred. This is a patrasitical right in nature.[9]^. neither country has recognized the right of separation between the dominant heritage and the transfer of easement.[10] nor in England.[11]^.

Personally restricted interest

6 clause (d) of T.P. Act, 1882. As we all knew, the property owner has absolute right over the property, and a right called right to transfer, which includes property, can be transferred with restrictions and without. This clause of 6(d) says that when every property is transferred subject to restrictions, further transfer by violating those restrictions shall be void. Property may be restricted to personal enjoyment either by law or custom or the conditions of grant [12] A right of karach-i-pandan, even if the payment is a charge on immovable property.[13] right to parwarish granted for the lifetime of the grantee.[14]

A religious office like that of mutwalli of a wakf, or mohunt of muth,[15] Emoluments attached to the priestly office,[16]. A lady inherited some property from her maternal father as owner; she gifted this property to her minor child, reserving her possession and right of enjoyment. This was held a restricted- interest. The child is the absolute owner of the property.[17]

Right to future Maintenance

6 clause (dd) of T.P. Act, 1882. Initially, there is no clause was embodied in this act. Still, this particular provision has been brought into enforcement by 1929, amendment and affected from 1^st April, 1930.before this amendment, there was a conflict of opinions between the right to transfer of future maintenance. But after the amendment, it is clear that a right to future maintenance cannot be transferred in whatever manner. But this section does not apply to a decree for recovery of past arrears. The right of Hindu widow is of maintenance is a personal right, and from its nature, it is incapable of assignment,[18].

A mere right to sue

6 clause (e) of T.P. Act, 1882 speaks about the mere right to sue. It’s also known as pre-emption. It’s a law of Torts principle. It clearly emphasizes that a right to sue is an absolute personal right—the right to sue, make a legal claim, or initiate legal proceedings.

In civil law, the law of torts, in a contract- privity of contract, which means parties to the contract. It’s a settled principle in civil law only the parties to the contract or the person affected shall make a legal claim in the court of law. It is a transient right in very inspection and nature, being a personal privilege of the pre-emptor, cannot be transferred to anyone except the property owner affected thereby.[19]

Public offices

Sec.6 clause (f) of T.P. Act, 1882. Also known as service tenures. It means any land, public office, salary for services rendered cannot be transferred. It is entirely against public policy. Inam lands are also inalienable,[20]. The Mufai lands, land gifted to Brahmins and his descendants on the condition that he should give his blessings to the grantor are transferable,[21]. In Henley v. Lyme corporation, a public office and public officer has been defined; everyone appointed to discharge a public duty and receives Compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer. And the office held by such an officer is a public office.

Stipends and pensions

6 clause (g) of T.P. Act, 1882 speaks about stipends and pensions. Pension means periodical allowance or stipends granted not regarding any right to the office but on past services or particular merit,[22]. Thus, a bonus or a reward is not a pension. Similarly, scholarships, medals, rewards cannot be transferred. Sec 11 and 12 of The Indian Pensions Act,1871, Read with the sec 6 of the T.P. Act, 1882, prohibits the voluntary or involuntary alienations of pensions,[23].

It is also clear that the salary of the public officer cannot be assigned or transferred so long as it reached the hands of the public officer, becomes it is not his salary. Still, when the salary reaches the public officer, it becomes his property entirely. Once the salary is received by the public officer, he can transfer it to anyone,[24].

Unlawful Transfers

6 clause (h) of T.P. Act, 1882 talks about unlawful transfers. When we go through the literal meaning of the sec6, clause(h), we find specific terms which expressly says those are unlawful transfers as follows:

1. Opposed to the nature of the interest- res nullis, which belongs to no one;
2. Unlawful object or consideration,[25];
3. Forbidden by law;
4. Defeat the provisions of law;
5. Fraudulent;
6. Injury to person or property of another;
7. Transfer of immoral objects;
8. Transferred opposed to public policy;
9. Agreement offending a statute.

In Dhirendra Kumar v. Chandra Kaul Roy,[26]the following agreements were recognized to be against public policy:

1. Agreement which injures the State in its relation to other States, e.g., trading with the enemy;
2. Agreement tending to injure the public service, e.g., influencing a person in authority in the discharge of his duties;
3. Agreement which tends to prevent the course of justice, e.g., stifling the prosecution for an offense of a public nature;
4. Agreement which tends to abuse legal process;
5. Agreement which is contrary to good morals;
6. Agreement which affects the freedom of marriage or security of marriage;
7. Agreement in restraint of trade. To these may be added the creation of monopolies.
8. The payment of a bribe to an official is a transfer opposed to public policy.

Other occasions

Sec. 6 clause (i) of T.P. Act, 1882. This section should be read along with section 108 of the same act. This emphasizes certain occasions as follows,

1. A tenant having the untransferable right of occupancy cannot transfer his right of tenancy.
2. A farmer of an estate in respect of which default has been made in paying revenue is not permitted to transfer the estate.
3. Under the management of a court of wards, a lessee of an estate is not allowed to transfer his interest,[27]

What property may be transferred?

The literal meaning of the section itself speaks that any property may be transferred, except otherwise provided by this act or by any other law for the time being in force. This means any kind of property may be transferred other than the exceptions in this section (a) to (i). any property may be transferred.

Conclusion

The said project dealt with all the aspects of Section 6 of the Transfer of Property Act,1882, and explained with the help of various case laws. It also consisted of multiple clauses, exceptions for a better understanding of the concepts. It finally answered

1. What property may be transferred?
2. What property cannot be transferred?

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Author(s): Andukuri Anoop and Chssr Bharadwaj
Gitam School Of Law, Visakhapatnam.

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References

[1] Lala Baijranath v. Chandragapal, (1925) 47 All. 55.

[2] Mohammad Ali v. Madarisah, (1927) 102 I.C. 626.

[3] Chiatley & Appu Rao, The Transfer Of Property Act, 4^th Ed., P. 255.

[4] Ibid.

[5] Clause (a) to (i), Section 6, of T.P. Act 1882

[6] Taliby v. Official receiver (1883) 13 App. Cas. 523, 543

[7] West v. Dobb, 39. L.J. Q.B. 190.

[8] Deod Palk v. Marchetti, (1831) IB & A D . 715.

[9] Gale’s Easement (6^th Ed). pp. 65 & 492

[10] Municipal Board of Cownpore v. Lallu 20 All. 200 (2003)

[11] Gale’s Easement (6^th Ed). p.11.

[12] Gaur, H.S.: Law Of Transfer, 8^th ed., p. 345.

[13] Altaf Begum v. Brij Narain, 1929 All. 281(286).

[14] Zahiruddin Hussain v. Chokhey Lal And Others, 1952 All.662

[15] Jaganath v. Kishan, (1867) 7 Cal. W.N. 266.

[16] Mahamaya v. Haridas, 42 Cal. 455.

[17] K. Balakrishan v. K. Kamalam (2004) I SC 581.

[18] Nandarani v. Krishna (1935 ALJ 715).

[19] Jasudin v. Sakharam, (1912) 36 Bom. 139.

[20] Anjaneyalu v. Sri venugopala, (1922) 45 Mad. 620.

[21] Hari kishan v. Ratan singh, (1934) 151 I.C. 562.

[22] Secretary of state v. Khem Chand Jaychand, (1880) 4 Bom. 432, 436

[23] The Indian Pensions Act,1871, Sec 11 and 12

[24] Bansilal v. Mercer, 714 W.P.H.C.R. 331.

[25] Sec 23 of Indian Contract Act, 1872

[26] Dhirendra Kumar v. Chandra Kaul Roy, AIR. 1923 Cal. 154.

[27] Sec.108, of T.P. Act, 1882.

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