This Essay is submitted by –
- Abhyuday Tripathi
Spes successionis is a Latin maxim. It is a hope of succeeding to the corpus of a person after his death. This doctrine states about a mere possibility or chance of a person to succeed to an estate of another person after his death. It is mainly an expectancy of succession of an heir apparent or any other relation to succeed in principle’s property by way of succession or will respectively. Such expectancy does not amount to an interest in property and cannot be made the subject matter of a transfer.
Spes successionis means expectation of succession. Expectation of succession is expecting or having a chance of getting property through succession. Spes successionis is, therefore, not a present property or any right over property. It is merely a possibility of getting certain property in future.
Collins Dictionary of Law defines spes successionis as an expectation of succeeding to property. It is not a title, but adventurous lenders may see it as a form of comfort. A person whose hope did not come to fruition because the testator’s intentions were not legally affected by a negligent solicitor was compensated to the amount of the succession from the solicitor’s insurers rather than the estate, which went to someone else[1].
Spes successionis is distinguished from a contingent right it must not be taken as contingent right. Contingent right is an actual right which depends on the happening of specified future uncertain event; however spes successionis is only an expectancy of succeeding. With reference to contingent interest a judicial committee said:
It is something quite different from a mere possibility of a like nature of an heir-apparent succeeding to the estate, or the chance of a relation obtaining legacy, and also something quite different from a mere right to sue. It is a well ascertained form of property it certainly has been transfer in this country for generations in respect of which it is quite possible to raise money and to dispose off it in any way the beneficiary chooses[2]
EX: If Matilda has nursed her invalid friend for thirty years, she may have every hope of succeeding to the property, but she has no right.[3]
The transferability of spes successionis is prohibited by the provision of section 6(a)[4] of Transfer of Property Act, 1882. Section 6 of the mentioned Act provides for some exceptions to the general rule that is property of every kind may be transferred which itself obtain its origin from section 6. Section 6(a) prohibits alienation of the chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of kin, or any other mere possibility of a like nature;
The transferability of spes successionis is prohibited under English Law too, but not in whole term. If the transfer of spes successionis is attached with some consideration then it is not void ab initio under English equity. So if any person transfers its mere chance of succeeding by way of gift then it is void; however if it sale that chance for consideration than it will be the valid transfer in future when such person gets right over that property.
Applicability of this Doctrine in Equity Courts
Under English Law too, spes successionis is non-transferable; however it allows such transfers which are attached with consideration. So it is a general rule that spes successionis is non-transferable but if the transferor alienates his mere chance of succeeding to another person for some consideration then this contract is not treated as void ab initio. In other words transfer of expectancy for some value is protected by equity but at the same time a gift of expectancy is prohibited. For protecting the rights of the transferee, in good faith, equity courts follow this rule. The result is that if an heir-apparent transfers the property, for which he has expectation of succeeding, and the transfer is for valuable consideration then, when that heir-apparent becomes legal heir and gets interest over that property, the equity shall compel him to pass on the title to the transferee.
In the case of In re Parsons it was observed that:
It is indisputable law that no one can have any estate or interest at law or in equity, contingent or other, in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person. During the lifetime of such person no one can have more than spes successionis, an expectation or hope of succeeding to his property[5].
In India neither a gift nor a transfer for some value, of expectancy, is allowed. But this equitable principle is also incorporated in section 43[6] of Transfer of Property Act, 1882, which safeguard the rights of a bonafide transferee by enforcing the fraudulent or erroneously transfers by transferor, for consideration, up to the interest of transferor in such immovable property.
Spes successionis as an exception to transferability
The rule of transferability is based on the legal maxim “alienation rei prefertur juri accrescendi” which means the law prefer alienation over accumulation of property and prohibits all interference on an individual’s right to alienation or transfer if such transfer is not barred by any statute. Right to transfer comes from a valid title; a person having ownership over certain property can alienate it without any impediments. If a person owns a property than it is open for him to transfer it to another person according to his will. Any Alienation under any pressure or by force is void under Indian Contract Act, 1872. The right to property itself includes the right to transfer the property to another.[7] The burden of proof is upon the person alleging that any kind of property is not transferable[8]. Spes successionis is an exception to this general rule as its transfer is prohibited by law. Section 6(a) of Transfer of Property Act, 1882, prohibits the alienation or transfer of mere expectancy of succeeding. Therefore it may be stated that transferability of property is a general rule, its non-transferability is an exception.
Provisions of spes successionis under section 6 of Transfer of Property Act, 1882
Except as otherwise provided by the Transfer of Property Act property of any kind may be transferred, so transferability of property is general rule and this rule obtains its enforcement from section 6. Exception to this general rule is provided by the provisions of section 6 itself. Section 6(a) of Transfer of Property Act restricts the transfer of a mere expectancy or chance of an heir-apparent succeeding to an estate, the possibility of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of alike nature. So during the life time of a person his heir-apparent cannot transfer its mere expectancy of succeeding because it is not his right it’s only an expectation of getting a share, after the death of the principle, in future. A person having interest over a property which is spes successionis i.e. mere possibility to succeed to the property in future is not a right and is not capable of being transferred. Such person cannot file a suit on the basis of such expectation of succession.
Section 6(a) of property made spes successionis an exception of rule of transferability as per the provision of section 6 spes successionis includes:
1). chance of an heir-apparent succeeding to an estate
2). chance of a relation obtaining legacy on the death of a kinsman or,
3). any other mere possibility of a like nature
Chance of an heir-apparent succeeding to an estate:
An heir-apparent is totally different from a legal heir. A legal heir is one who is legally entitled to inherit an estate when a person dies intestate; however an heir-apparent is a person who has expectation of succession and not an actual entitlement. So basically an heir-apparent is a person who has expectation to become legal heir in future and succeed the property of the propositus. An heir can legally transfer his shares over the property of the deceased but this cannot be done by an heir apparent because he does not possess any right over the property all he has is mere expectation. The inherit entitlement of an heir-apparent is depends upon future uncertain events like (a) he has to survive the propositus and (b) the propositus must die intestate i.e. without making any will and ,therefore, an heir-apparent would get the rights over the property of the deceased only after the fulfilment of above mentioned conditions.
Ex: A is father of B. During the lifetime of A, B is only his heir-apparent and not more than that. If B survives A and A died intestate then B can inherit the property of A. But if A makes a will and on that will he express that all his property will give to his daughter C after his death. Now though B survives A he cannot inherit his property.
Where a person is not heard of for a long period and is believed to have been dead, the transfer of his properties by his brother as his legal heir would be a valid transfer because, under the circumstances, brother is not merely an heir-apparent but a legal heir.
So before the intestate death of a person his heir-apparent’s expectations of getting property is merely a future possibility and not an actual right. It is only a naked right which does not create any present interest in favour of the heir-apparent and law cannot treat it as a present fixed right in the property. Therefore, chance of an heir-apparent is not transferable.
Chance of a relation obtaining legacy on the death of a kinsman:
Chance of a legacy is a mere possibility of getting certain estate in future under a will. It is chance or expectation of any friend or relation to get property, under a will, after the death of the testator. Chance of an heir-apparent and chance of a legacy is very much alike because both possess no right in property and they are mere expectation. The chance of a relation or a friend receiving a legacy is a possibility even more remote than the chance of the succession of an heir, and non-transferable[9]. A will only operates after the death of the testator and not on the date when it is written and if there is more than one will the last one prevails. So for obtaining the entitlement over the property of the testator the person has to qualify two conditions (a) he has to survive the testator and (b) he must be the person who was mentioned in the last will. If two or more wills have been executed in favour of different persons, only the legatee under the last will is entitled to get the property. Before a will operates i.e. before the death of the testator, the legatee has only a mere hope of getting certain property under will, and is non-transferable.
Any other possibility of a nature:
Any other possibility of the like nature would mean any other possible interest or property which is as uncertain as the chance of an heir-apparent or of a legatee. The central aim of section 6(a) is to prohibit the transfer of properties which are merely a future uncertain possible interest. Therefore, clause (a) of section 6 exclude not only the chance of an heir-apparent or of a legatee but also any other chance of getting future property which is not at present a fixed right of a transferor. The words of a ‘like nature’ indicate that the possibility referred to herein must belong to the same category as the chance of an heir-apparent or the chance of a relation obtaining legacy. In this case, the usual illustration of a possibility is the case of a fisherman’s net. There is no certainty that any fish will be caught, and the fisherman has no interest in the fish until they are caught[10]. An agreement for the sale of Otkarnam lands is a possibility and therefore void[11].
Conclusion
The alienation and transferability of property is a general rule, however, there are some exceptions to the general rule which are enumerated in the provisions of section 6 of the Transfer of Property Act, 1882, and from those entire enumerated exception one is spes successionis. The provision of section 6(a) of the mentioned Act prohibits and restricts the transfer of the chance of getting the rights of the property in future after the death of the owner. Such provision prohibits the transfer of rights of an heir-apparent, which he will get in the future, and not prohibits the transfer of the property itself which he will get in future because such transfer of property itself is void ab initio as no one transfer a property on which they have no rights.
Thus accordingly, the general law lays down that all property is transferable under the section unless there is some legal restriction to the contrary. Section 6 makes property of any kind alienable subject to the exception set out which cannot be supposed to be selected by reason of the future character of the chances. The truth is that an attempted conveyance of non-existent property may, when made for consideration, be valid as a contract and when the object comes into existence, equity fasten upon the property and the contract to assign becomes a complete assignment. It is well settled that a transfer of property clearly contemplates that the transferor has an interest in the property, which is sought to be conveyed.
Section 6 provides that, in general, every kind of property can be transferred from one person to another. However, following are the exceptions to this general rule, which the researcher has analysed.
First, in Chance of an Heir Apparent/ Spes Succession-The technical expression for the chance of an heir apparent succeeding to an estate is called spes secession is. It means succeeding to a property. This means an interest which has not arisen but which may arise in future. It is in anticipation or hope of succeeding to an estate of a deceased person. Such a chance is not property and as such cannot be transferred. If it is transferred, the transfer is wholly void.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[1]Collins Dictionary of Law © W.J. Stewart, 2006
[2] Kali Prasad v Ram Golavi 167 IC 839, AIR 1937 Pat 280.
[3]George Whitecross Paton, A Textbook of Jurisprudence 306 (G.W. Paton & David P. Derham eds., 4th ed. (1972).
[4]( 6). What may be transferred.—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,—
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred;
[5]http://www.legalservicesindia.com/article/2163/SPES-Successionis-As-An-Exception-To-Transferability.html.
[6](43). Transfer by unauthorised person who subsequently acquires interest in property transferred.—Where a person 1[fraudulently or] erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.
[7] Lal Baijnath v Chandrapal (1925) ILR 47 ALL 55, AIR 1924 ALL795
[8] Mohommad Ali v Madarisah AIR 1927 Oudh 297
[9] Cf Pag Dat v Chote Singh (1906) 9 OC 55
[10] Mulla; Transfer of Property Act, Ed. VII, p.59.
[11] Auryaprabhakara v Gummudu (1925), AIR MAD 885
