DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

PROPERTY LAW-I
PROJECT
__________________________________________________________________________

IN ORDER TO CONSTITUTE A VALID TRANSFER, THE

TRANSFEREE MUST BE COMPETENT TO TAKE THE
TRANSFER. SECTION 6(h)(3) OF TRANSFER OF PROPERTY
ACT, 1882

Submitted to:

Submitted by:

Mr. Radheyshayam Prasad

Anshita Mani

Assistant Professor (Law)

Roll No: 21
B.A.LL.B.(Hons.)
5th Semester

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ACKNOWLEDGEMENT

While bearing full responsibility for any mistakes, I wish to thank Mr. Radheyshayam Prasad
for making a number of helpful comments and constructive criticisms for my project. I would
like to thank him for allowing me to make project on an appropriate topic of my choice and
that has helped me in better understanding of the subject. I also thank the comments and
suggestions of my seniors, which were also of great assistance. However, I am alone
responsible for all the remaining errors and inadequacy.

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INDEX

1) Introduction4-5
2) Case Laws..6-8
3) Conclusion..9
4) Bibliography10

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INTRODUCTION

In order to constitute a valid transfer, the transferee must be competent to take the transfer.
Section 6(h)(3) of Transfer of Property Act, 1882 which says What may be transferredProperty of any kind may be transferred, except as otherwise provided by this Act or by any
other law for the time being in force-(h) No transfer can be made (3) to a person legally
disqualified to be transferee.
This sub-clause provides that no transfer can be made to a person legally disqualified to be a
transferee. A particular person may be entitled to acquire property only on fulfilling a certain
condition, e.g., with the previous permission of a certain officer. Such person would be
disqualified from being a transferee unless he secures the requisite permission. The word
legally implies a prohibition under some provisions of law in contradiction to a prohibition
imposed by an agreement or a decree of the Court. So, where a condition of the grant is that
the grantee shall not transfer the property to a person who does not hold a certificate of
approval, a person who does not hold a certificate cannot be regarded as a person legally
disqualified to be a transferee within the meaning of this sub-clause.
Without doubt, the word legally imports a legal prohibition imposed by some statute; the
transferee should be competent to be a transferee. Any living person is competent to be a
transferee, provided he is not subject to a legal disqualification. Section 136 of the Act
forbids a Judge, a legal practitioner or officer connected with a Court from purchasing an
actionable claim. Order XXI, Rule 73 of the Code of Civil Procedure prohibits any officer, or
person, having any duty to perform in connection with any sale from acquiring an interest in
the property sold. Similarly, Section 52 of the Trust Act provides that a trustee for sale of
property, or his agent, must not buy such property. All such persons, as aforesaid, are
disqualified to be transferees to the extent of prohibition.
Minor As Transferee- In India, a minor is not disqualified to be a transferee, though neither
the guardian of a minor nor his manager is competent to bind the minor, or his estate, by a
contract for the purchase of immovable property; but a lease to a minor is void, since it
imports a covenant by the minor to pay rent and other reciprocal obligations. There are some
doubt under the old law but not the Amending Act XX of 1929 and the present Section 107

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makes it clear that a lease to minor must be void as a lease is required to be executed both by
the lessor and the lessee.1

1 Sanjiva Rao, Transfer of property Act(Vol 1, 7th edt,2011)135.

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CASE LAWS

(1) Munni Kunwar vs. Madan Gopal [(1916) ILR 38 All 62]

The plaintiff is the daughter-in-law of the defendant. The suit is a suit to recover possession
of a house. The house admittedly belonged at one time to the defendant. The house was under
attachment in execution of a decree against the defendant. Before the sale, a deed of transfer
was executed by the defendant in favour of the plaintiff. She was his daughter-in law and her
husband (the son of the defendant) was then alive. It was alleged on behalf of the plaintiff
that she paid the purchase-money of the house and became the purchaser. It was alleged on
behalf of the defendant that the whole transaction was fictitious and that no consideration of
any kind ever passed. As the result of the finding of the Court below upon the issue we
referred, it is now established that the money was really paid by the father of the plaintiff at
the time of the attachment and was duly received by the defendant. There can be no doubt
(whether the money actually belonged to the plaintiff or belonged to her father) that the
purchase was intended for her benefit. The question is whether under these circumstances, the
plaintiff was entitled to recover possession of the property, it being borne in mind that at the
date of the deed of transfer she was under age. It is contended on behalf of the defendant that
the contract for sale of the house was absolutely null and void and the decision of their
Lordships of the Privy Council in the case of Mohri Bibi vs. Dharmodas Ghose. Thus a minor
can be a transferee, though under Indian Contracts Act, a minor cannot be a transferer.

(2) Thakur vs. Putli [AIR 1924 Lah 611]

A transfer of property or a mortgage, given by a minor, can be avoided at the minors option.
However, a transfer in favour of a minor is valid transfer. A minor is also capable of
purchasing immovable property and it was held that he may sue to recover the possession of

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the property purchased upon tender of the purchase money. Bench of the Lahore High Court
held that a mortgage in favour of a minor was enforceable by him where the consideration
has been paid by him in full.

(3) Ulfat Rai vs. Gauri Shankar [(1911) ILR 33 All 657]

In this case Privy Council, Court held that a minor can be legally a transferee and a
mortgagee too. However, Court contended that a minor cannot be a mortgagee. The case was
referred in Narain Das And Anr. vs Musammat Dhania2

(4) Govinda Kurup vs. Bekku [AIR 1931 Mad 147]

An agreement entered into by a Muslim minor by his de facto guardian relating to his
immovable property is a sale or a mortgage or a lease, it suffers from the same defect or want
of due capacity and the rule rendering such a transaction void applies with as much force to a
lease of immovable property as to a regular conveyance by a sale or a transfer of interest as in
a mortgage.

(5) Jaykant Harkishandas Shah vs Durgashanker Valji Pandya [AIR 1970 Guj 106]

A de facto guardian cannot impose liability by executing a lease deed on behalf of the minor
and if such lease deed is executed the same would be null and void and that the de facto
guardian has no right to start a new business on behalf of the minor and the minor is not
2 (1916) ILR 39 All 154.
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bound if any liability is incurred for any such business. He relied upon a Privy Council
decision in Mohori Bibee v. Dharmodas

(6) Shanti Prasad vs. Bachchi Devi [AIR 1948 Oudh 349]

The learned Judges also held that as the money had been advanced merely as a consideration
for the mortgage, the mortgagee could not claim it as legally due to him. The statutory tenant
could not avail himself of the provisions of Section but his remedy lay in a suit for ejectment
in the revenue Court.
In this case, it was concluded that a tenant having an untransferable right to occupancy cannot
transfer his interest. This clause contains an exception to the general rule that all tenancies or
leaseholds are transferable. In certain enactments certain categories of leasehold interests or
tenancies are made untransferable. The case referred in Mahabal Singh And Anr. vs Ram Raj
And Ors.3

3 AIR 1950 All 604.

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CONCLUSION

Section 6 (h (3) of the Transfer of Property Act, 1882 deals with cases, where a person, by
reason of the law to which he is subject, is disqualified from acquiring certain property. A
transfer is ordinarily a bilateral act. This is so, even where the law requires the execution of a
document by one party only, as in the case of a gift, since it does not become effective unless
the other party, the done, accepts the transaction. Only after such acceptance he is bound by
it. Another familiar instance is the creation of a trust. The author of a trust may create a trust
but it can have legal effect only when it is accepted by the trustees. Familiar instances of
cases, where a person is legally disqualified to be a transferee are those of wards of a Court of
Wards, or insane persons in respect of whom a committee or manager is appointed.
Even otherwise, these cases would have come under the general exception mentioned in the
opening paragraph of the section that property of any kind may be transferred except as
otherwise provided by any other law for the time being in force.4

4 Sanjiva Rao, Transfer of property Act(Vol 1, 7th edt,2011)127.

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BIBLIOGRAPHY
BOOKS:
1) Transfer of Property Act
By- Sanjiva Row
2) Property Law
By- Poonam Pradhan Saxena
3) Transfer of Property Act
By- Avatar Singh

JOURNAL:
SCC Online.

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