The Transfer of Property Act, 1882 was enacted on 17th February 1882 and it came into force on 1st July, 1882. The Act regulates the transfer of property in India and contains provisions relating to Sale of immovable property, discharge of encumbrances on sale, Mortgages and Charges of Immovable property, rights and liabilities of Mortgagor and Mortgagee and Leases of immovable property.
“Property” has not been defined under the Act, however, under section 5 of the Act, “transfer of property” is defined and it reads as follows;
“Transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons.
What may be transferred?
Transferability of property is the general rule whereas its non-transferability is an exception. Section 6 of the Act elaborates on what may be transferred.
SpesSuccessionis – section 6 (a)
Under English law, during the lifetime of a person, the chance of his ‘heir apparent’ succeeding to the estate or the chance of a relation obtaining a legacy under his will is known as a spessuccessionis (chance of succession).[i]
For instance, if John, who is the father of Robert, has a property in his name. Now, Robert is an heir apparent to this property if John dies. However, Robert is not allowed to sell or transfer or alienate the property during the lifetime of John without his consent because the property is in the name of John and it will only be inherited by Robert upon John’s death. Therefore, transfer of property cannot be validated by a mere chance of succession.
In the case of Ananda Mohan vs. Gaur Mohan[ii], a Hindu contracted to sell an immovable property to which he was the nearest reversionary heir expectant upon the death of a widow who was in possession of that property. The Privy Council held that such a contract was void since section 6 (a) of the Transfer of Property Act, forbids the transfer of an expectancy. He was only going to inherit the property upon the death of the widow and that was a spes successionis which is void ab inito.
Right of re-entry- section 6 (b):
Re-entry refers to the right to continue or resume possession of a property which, for a certain period of time, has been given to the possession of another. This is generally seen in cases of a leased out land.
Section 6 (b) of the Act states that a mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property. A condition subsequent is when, upon happening of a particular event, the rights and duties of a party in a contract is extinguished.
For instance, Rohan has leased out a building to Nita for a period of 3 years, and there are certain conditions laid down in the lease agreement between the two. If Nita, being the lessee, breaches any of the conditions laid down in the agreement, then Rohan, as the lessor, has the right of re-entry into the building. The lessor usually reserves the right of re-entry after transferring possession of his property.
Right to re-enter is a personal right enjoyed by the lessor and the same cannot be transferred to another person, if it is transferred then according to section 6 (b), it is rendered void.
Easements- section 6 (c):
An easement is a right which the owner or occupier of a certain land possesses as such for the beneficial enjoyment of that land to do and continue to prevent something being done, in or upon or in respect of certain other land which is not his own.[iii]
An easement involves a dominant heritage and a servient heritage. The dominant heritage is a land to which the benefit of the easement attaches, and the servient heritage is a land to which the burden of the easement is attached.
If X owns a house and has a right of way through B’s land, the house is the dominant heritage and the right of way is the servient heritage.
According to section 6(c), an easement cannot be transferred without the dominant heritage. In the above example, X cannot just transfer the right of way to Y, however, if X transfers the house to Y, Y will receive the right of way as well.
Restricted interests- section 6 (d):
In certain situations, the interest which a person has in a property may be such that he alone can enjoy it and no one else. Such interests are considered inalienable. According to section 6(d), an interest in property which is restricted in enjoyment to the owner personally cannot be transferred by him.
The following are a list of restricted interests that cannot be transferred:
- Service Inams
- Religious office- in the case of Raja Varma vs. Ravi Varma[iv], a manager of a temple transferred his right over the management of the temple to the plaintiff who then filed a suit against the defendant to recover jewels of the deity of the temple from the defendants. The defendants contended that the plaintiff was not the manager of the temple and that they had no right to file a suit against them. The Court upheld the defendant’s contention and stated that management of the temple was a religious office and it couldn’t be alienated.
- A right of Pre-emption
- Emoluments which are attached to the priestly office.[v]
A right to future maintenance- section 6 (dd):
In the case of Thimmanayanim vs. Venkatappa[vi], the Madras High Court held that the right to future maintenance is transferable if it is obtained by a decree. However, in the case of Asad Ali vs. Haidar Ali[vii], the Calcutta High Court took a contrary view. In order to resolve this conflict, the Transfer of Property (Amendment) Act, 1929 inserted clause dd to section 6 according to which, transfer of the right to receive maintenance is a personal right which cannot be validated.
A mere right to sue- section 6 (e):
A bare right to sue is non-transferable. But, if property is transferred and the right to sue is an accrued right, then it may also pass along with the property. In the case of Shankarappa vs. Khatumbi[viii], a sale of property was made along with the right to sue and collect mesne profits. The Bombay High Court considered that in this case, it wasn’t a transfer of mere right to sue but the property was also transferred and hence such a transfer is valid.
Public Office- section 6 (f):
According to section 6(f), a public office or the salary whether before or after it has become payable to the public officer cannot be transferred. Section 2(17) of the Civil procedure Code, 1908 defines the term “public officer”.
Pensions- section 6 (g):
Stipends allowed to military, naval, air-force and civil pensioners of the government and political pensions cannot be transferred. A pension is a periodical payment of money made by the government to the pensioner. In the case of Saundariya Bai v. Union of India, AIR 2008 MP 227 it was held that pension is non-transferable, so long as it is unpaid and in the hands of the government.[ix]
Prohibited transfers- section 6 (h):
A transfer made in the following situations are considered as void:
- if it is opposed to the nature of the interest affected or
- for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 or
- to a person legally disqualified to be transferee.
Unlawful transfer- section 6(i) :
The following persons are not authorized to assign their interest according to section 6(i):
- a tenant having an untransferable right of occupancy or
- the farmer of an estate in respect of which default has been made in paying revenue, or
- the lessee of an estate, under the management of a Court of Wards.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
[i] G.C.V. SubbaRao’s Transfer of property Act, revised 16th ed, 37.
[ii] 50 Cal 929.
[iii]section 4 of the Easements Act, 1882
[iv] I. Mad 235 (P.C)
[vi] (1978) Mad. 713 (F.B)
[vii] 38 Cal. 13.
[viii] 56 Bom 403.