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INTRODUCTION

Before the transfer of property act came into existence in 1882, the transfer of immovable
properties in India were governed by the principle of English law and equity. Property has been
given a rather wide spectrum covering both tangible material things, e.g., land and houses as well
as rights which are not exercised over any material, e.g., a right to repayment of a debt. The word
‘transfer’ in the Act has also been used in a wide sense. It may mean either transfer of all the
rights and interests in the property or transfer of one or more of subordinate rights in the
property. Transfer of Property Act, 1882 is a civil legislation of immense importance owing to
the vast number of property related transactions taking place throughout the country. A uniform
legislation was the need of the hour considering this factor, and this act was drafted to serve the
selfsame purpose.

The transfer of property Act:

[The Transfer of Property is defined as 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, and ‘to transfer property’ is to perform such act.] In this section ‘living person’
includes a company or association or body of individuals, whether incorporated or not, but
nothing herein contained shall affect any law for the time being in force relating to transfer of
property to or by companies, associations or bodies of individuals. However the general
provision of this act will not affect provisions of any special law dealing with transfers of
property by companies, associations or body of individuals.

According to this analyzing it can be said that the transfer of property is an act of conveyance,
conveyance is affected through living persons, these properties may be conveyed either to one or
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more other living person, or himself, or to himself with one or more other living persons,
property may be transferred either in future or in present.

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.

(b) 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.

(c) An easement cannot be transferred apart from the dominant heritage.

(d) An interest in property restricted in its enjoyment to the owner personally cannot be
transferred by him.

(dd) 1[ A right to future maintenance, in whatsoever manner arising, secured or determined,

cannot be transferred.]

(e) A mere right to sue 2[ cannot be transferred].

(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or
after it has become payable.

(g) Stipends allowed to military 3[ , naval], 4[ air- force] and civil pensioners of 5[ Government]
and political pensions cannot be transferred.

(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected
thereby, or (2) 6[ for an unlawful object or consideration within the meaning of section 23 of
the Indian Contract Act, 1872 (9 of 1872 ),] or (3) to a person legally disqualified to be
transferee.
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(i) 7[ Nothing in this section shall be deemed to authorize a tenant having an un-transferable
right of occupancy, 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, to
assign his interest as such tenant, farmer or lessee.]

General Rule of Transferability of Property:

The transferability of property is the general rule and non-transferability is an exception.

[Transferability of property is based on the maxim alienation rei prae fertur juri accrescendi
which means to say that alienation is favored by the law rather than accumulation.] 2The general
policy is to promote free alienation and circulation of property rather than accumulation of it.

[Section 6 of the Transfer of Property Act, 1882 says that property of any kind may be

transferred excepting the non-transferability property. Transfer of the property can be prohibited

only by provision of the law and not by the judgment or direction. Restrictions contained in

tendency legislation can be waived by the competent authority.] 1) Spes Successions:

[Spes successions means exception of succession; it is a possibility of getting property in future

through succession.]2 The things referred to in this sub-section as non-transferable are the chance
of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the
death of the death of a kinsman, and other mere possibility of a like nature. This clause says that
spes successions are not transferable.

a) Chance of an heir-apparent:

Heir apparent is not a legal heir but apparently an heir. Heir apparent is that person who would be
the heir if he survived the propositus and if the propositus dies intestate. Propositus is a deceased
person whose property the heir apparent is going to inherit. The chance of an heir apparent to
succeed to an estate is only an exception which may be defeated by the act of some person
having the present power to dispose of the property. It is indisputable law that no one can have
any estate or interest, at law or in equity, contingent or others, in the property of a living person
to which he hopes to succeed as heir at law next of kin of such living person.
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Reversionary is a person who inherits the properties of a widow held by her for life. During the
life of widow this right remains suspended but it reverts back to the reversionary on her death
provided the reversionary survived her.

b) legacy:

[Legacy means expectancy of getting certain property under a will. A will becomes operative
only after the death of the testator. If a person has made two or more wills, then only the last will
make by him will be operative.] 1 Legatee under the last will only will get the legacy. Expectancy
to receive legacy is uncertain because the legatee may or may not survive the testation and the
testator may have changed the name of the legatee in his last Will. Therefore, the chance of a
legacy has been made non –transferable.

c) Any other possibility of a like nature:

Clause the chance of an heir-apparent excludes any other possibility of a like nature from the
purview of transferability. [If there is any other possible property or interest which is as uncertain
as spes successionis or legacy, that too will not be transferable.] Any property which is merely a
future uncertain possible interest should not be made a transferable property.

2) Clause (b): Right of re-entry:

Clause (b) constitutes second exception to the general rule of transferability. [By a mere right of
re-entry is meant a right to resume possession of land which has been given to another person for
a certain time.]3 This is the right which a lessor keeps reserved for

himself after parting with the whole estate. The right of re-entry is that right which the lesser has
against the lease of his property for breach, the lessor may re-entry. This right of the lessor is not
transferable.

For example, where X grants a lease of plot of land to Y for a period of 5 years, at the expiry of 5
years he transfers his right of re-entry to Z. this transfer is valid as a transfer to the entire
remaining rights of X.
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3) Clause (c) Easement:

Third exception is the general rule of transferability says that an easement can’t be transferred
apart from the dominant heritage. According to section 4 of the Easements Act, 1882, 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. [An easement involves the existence of a
dominant heritage and a serviette heritage. That is, there must be two parcels of land, one (the
dominant heritage) to which the benefit of the easement attaches, and another (the servient
heritage) which bears the burden of the easement. But technically an easement cannot exist in
gross (independently of the ownership of land but only as appurtenant) attached to a dominant
heritage. It follows therefore that an easement cannot be transferred without the property which
has the benefit of it.]1

For example, A, who is owner of a house, has a right of way over the land of B which adjoining

to his land. A transfers his right to way over the land of B to C. A can’t do this 4) Clause (d)

Restricted interest:

Clause (d) dealing with fourth exception says that an interest in property restricted in its
enjoyment to the owner personally can’t be transferred by him. This means that a person’s right
or interest which is only for his enjoyment cannot be transferred by him. Where a person a gives
a land to another B for his personal use only. B can’t extend that use of land of any third person.
Transfer of such interest would defeat the whole purpose of the restriction. [Under this clause,
the following kinds of interest have been held not to be transferable:—

(a) A religious office

(b) Emoluments attached to priestly office. Where, however, the right to receive offerings made

at a temple is independent of an obligation to perform services involving qualifications of a

personal nature, the right is transferable.6 (c) A right of pre-emption.

(d) Service tenures.]1

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5) Clause (dd) Right to future maintenance:

[Fifth exception in clause (dd) provides that a right to future maintenance, in whatsoever manner
arising, secured or determined can’t be transferred.]2 Before the insertion of this Sub-section in
1929, there was a conflict of opinion whether the right to future

maintenance when it was fixed by a decree was transferable. The result is that the assignment of
a decree for maintenance is valid if the maintenance has already become due but as to future
maintenance it is not valid. Arrears of maintenance, therefore, can be assigned.

Although the right of maintenance is not transferable, the arrears of maintenance can be
transferred. The right of maintenance is a personal right of a Hindu widow which is incapable of
assignment but arrears of maintenance can be attached and sold like any other debt.

6) Clause (e) Right to Sue:

Clause (e) containing the sixth exception provides that a mere right to sue can’t be transferred.
This means that bare right to sue can’t be transferred. [Right to sue for a definite sum of money
is an actionable claim and can be transferred but right to sue for indefinite sum of money is not
transferred.]1 Right of action for damages in tort or breach of contract are bare rights to sue, and
therefore can’t be transferred. The social policy underlying the non-transferability of mere right
to sue for unliquidated damages is to prohibit the practice of gambling over litigation. [Where the
right to sue is connected with a business and the whole of the business is transferred, the right to
sue is also automatically transferred.]2 Where a partnership firm entered into a contract with the
government and all the partners except A retired from partnership firm, all the rights and
liabilities of the firm were transferred to the sole partner left behind, according to the retirement
deed of partnership, it was held that a suit by A for damages for breach of contract against the
Government will not come under exception clause(e).[The property of a minor was sold by his
father without any legal necessity or with the permission of the court. Therefore, the sale was
voidable at the opinion of the son who was the real owner.]
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For example, A agrees to sell B a certain quantity of gunny bags to be delivered after few days.
Before the delivery, B transfers his beneficial interest in the contract to C. When A commits a
breach of contract, C becomes entitled to sue A for damages for breach of contract because along
with the transfer of beneficial interest right to sue is also transferred because here it is an
actionable claim.

7) Clause (f) Public office:

Clause (f) constitutes seventh exception to the general rule of transferability. A public office is
held for qualities personal to the incumbent, and obviously it would be against public interest to
permit alienations of public officer. It provides that a public office can’t be transferred, nor the
salary of a public office, whether before or after it has become payable.

In Corporation of Liverpool v. Wright:

“Where the law assigns fees to an office, it is for the purpose of upholding the dignity and
performing properly the duties of that office and the policy of the law will not allow the officer
to bargain away those fees to the appointer or anyone else.”

The prohibition on the transfer of a public office or salary of a public officer is on the basic of
public policy. A person is chosen to hold a public office for qualities personal to him and if he
were allowed to transfer it, there is possibility that public duties may not be discharge. The salary
is given to a public officer for the purpose of upholding its dignity and the proper performance of
his duties and, therefore, it is also not transferable.

8) Clause (g) stipends and Pensions:

Clause (g) consisting of eight exception provides that the stipends allowed to military, naval,
airforce, and civil pensions of the Government and political pensions cannot be transferred.
[Pension means a periodical allowance or stipends granted not in respect of any right to office
but an account of past service or particular merit.] 1 A bonus or reward is not a pension.
Allowances granted for other consideration can be transferred. [Accordingly, a reward is not a
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pension. Section 60 of the Civil Procedure Code also exempts a pension from attachment in
execution of a decree against the pension holder.]

9) Clause (h) Nature of Interest, Unlawful Object, Disqualification of Transferee:

Clause (h) deals with three classes of cases. [It says that no transfer can be made- in so far as it is
opposed is the nature of the interest affected thereby; 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.

· Transfer Opposed to the nature of Interest

If the nature of the property to be transferred does not admit of such transfer, the transfer is not
valid. Air, water, space, sea, light, etc are given by the nature to be used by each individual on
earth. It is not possible to hold and possess them separately. If anyone tries to transfer such a
thing it would be opposed to its nature.

· Transfer for an Unlawful Object or Consideration

A transfer cannot be made if it is for unlawful object or consideration. A property otherwise

transferable may not be transferred if the transfer is for an unlawful object or consideration.

[Under section 23 of the Indian Contract Act, 1872, a consideration or object is unlawful, if- it is
for bidden by law, or it is of such a nature that if permitted it would defeat the provisions of any
law, or if it is fraudulent, or if it involves injury to the pension of another, or if it is immoral or
opposed to public policy.]1

· Legality Disqualified Transferred

A legally disqualified person cannot be a transferee. Like- the property cannot be transferred to
him. [Section 136 of this Act disqualifies certain persons to be transferee of any actionable claim.
A Judge, a legal practitioner or an officer connected with courts of justice are disqualified from
purchasing any actionable claim.]
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10) Clause (i) Untransferable Interests

Clause (i) provide that nothing in this section shall be deemed to authorize a tenant having an
untrasnferable right of occupancy, 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, to
assign his interest as such tenant, farmer or lessee. [The last sub-section of Section 6 is identical
with the proviso in Sub-section (i) of Section 108 of this Act and was inserted by the
Amendment Act, 1885 to obviate any doubt which might arise owing to the fact that section does
not primarily apply to leases for agricultural purposes.] 1[Under this clause, any tenant having an
untrasferable right of occupancy cannot transfer his interest as such tenant.] 2The farmer of an
estate in respect of which default has been made in paying revenue cannot transfer his interest as
such farmer and the lessee of an estate under the management of the Court of Wards cannot
assign his interest as such lessee to any other person.
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EXCEPTIONS
Lets further look into the exceptions for transferring the property.

Chance of an heir apparent or Spes Succession

If there is an immovable property, which Mr. A is going to get, then Mr. A has a chance of being legal
heir. If Mr. A assumes that he is the owner of the property and transfers the property to Mr. B, that
transfer will be considered to be invalid. Mr. A cannot transfer the property unless he gains the
ownership of the property and the property belongs to Mr. A.

A mere right of re-entry for a breach of a condition subsequent

Mr. A and Mr. B have a contract in which Mr. A gives his agricultural land on a lease to Mr. B for 10
years. There is a land on the tree and Mr. A has asked Mr. B that if he cuts the tree that is there on the
land, Mr. A will have a re-entry. Mr. A has now put a condition on Mr. B after the transfer of property
and that is why it is known as condition subsequent. Mr. A has the right of re-entry and this right cannot
be transferred. Right of re-entry cannot be transferred.

An Easement
An easement cannot be transferred. Easement is the enjoyment that the owner of the property holds
with his property. Easement cannot be transferred. Once the property is transferred, easement is by
default transferred too. future Maintenance
A and B are related. Court orders that A will pay maintenance expenses for B. The future maintenance of
this right cannot be transferred.

Right to sue
Mr. A has committed a wrong against Mr. B and Mr. B can sue Mr. A in court. Mr. B has the right to sue.
If Mr. B wants to transfer this right to Mr. C, that is not possible. Right to sue cannot be transferred.

Public Office
If you hold a public office such as judge, inspector, doctor, etc, then you cannot transfer your public
office to anyone.
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Stipends
Stipends related to Military, Naval, Air Forces, Civil Prisoners, government pensions, etc are personal
rights and cannot be transferred.

General rule of Transfer of Property is that property of any kind can be transferred from one person to
another. Exceptions can be classified into exceptions mentioned under section 6 of Transfer of Property
Act and exceptions mentioned in other laws.

It is open to the donor to transfer by gift title and ownership in the property and at the same time
reserves its possession and enjoyment to herself during her lifetime. There is no prohibition in law that
ownership in a property cannot be gifted without its possession and right of enjoyment.

Caselaws
K.Balakrishnan v K.Kamalam (2004) [with respect to section 6 of Transfer of Property Act]
The only substantial question of law involved in this appeal is whether the appellant, who was
minor on the date of execution of the gift-deed dated 24.9.1945, can be held to have legally
accepted the property in suit gifted to him and the said gift-deed was irrevocable. The appellant
shall hereinafter be described as 'the donee' and his deceased mother as the 'doner.'

On 24.9.1945, mother Devyani-donor executed a registered gift-deed of 1/8th share of the

property inherited by her from her maternal grandfather in favour of her minor son aged 16 years
being the present appellant (donee) and her daughter Kamalam (respondent No.1 herein) who
was aged four years. The 1/8th share of the property gifted is described in the schedule of
giftdeed i.e. one acre and 25 cents of property in Survey No.7481 & 7482 with school building in
Mayyanad Cherry in the State of Kerala. Under the terms of the gift-deed ownership of the
property, half and half, to each of the two donees was transferred but the donor retained during
her life time the management of the school and the income from the property.

The High Court in the impugned judgment took a contrary view and confirming the trial court
judgment dismissed the suit of the donee holding inter alia that the terms of the gift-deed do not
indicate that any property was transferred thereunder. The High Court held that when the donor
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reserved to herself the right to sign the papers with respect to management of the school and right
to take usufruct from the property where the school is situated, there arose no question of passing
over ownership of the property to the donees, which the donees could accept.

The High Court further went on to hold that the entire right in the property gifted was reserved
by the donor to herself and therefore even when the father had handed over the documents to the
plaintiff there arose no question of any acceptance of gift made in respect of the school property.
The High Court further held that the same legal position is in respect of property gifted to the
minor daughter and no question of acceptance of gift arose in respect of that part of the property
as well.

Bharat Petroleum Corporation v P.Kesavan (2004) [with respect to section 5 of Transfer of

Property Act]
A deed of lease was executed on or about 22.11.1967 by one Smt. Angammal wife of Shri
Angappa Chettiar in favour of Burmah Shell Oil Storage & Distributing Company Limited
(Burmah Shell) in respect of 23 acres and 16 cents of property/land situated in the town of
Bhavani for a period of twenty years on a quarterly rent of Rs.300/- for the purpose of "erecting
an installation and/or one or more pumps service/ filling stations together with
overhead/underground tanks and other fittings for storage of petroleum products and such other
facilities and buildings as the lessee may require and for carrying business is such products
through such facilities and other kindered motor accessories or any other trade or business that
can conveniently be carried on in the demised premises". The original lessor allegedly executed a
will bequeathing the said site to her grandson Meenashisundaram, who expired on 3.11.1971
whereafter rent used to be paid to the guardian and mother of the said Meenashisundaram, Smt.
G.Chellammal.

The appellant herein claimed itself to be a tenant in respect of the said premise relying on or on
the basis of the provisions of the said Act. It is not in dispute that the lessor by a notice dated
4.2.1987 purported to terminate the tenancy calling upon the appellant herein to quit and deliver
the peaceful and vacant possession as per terms of the lease dead. In reply to the said notice , the
appellant herein in terms of letter dated 26.2.1987 addressed to its advocate invoked the
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provisions of Sections 5(2) and 7(3) of the Act stating that it had no intention to vacate the site
on the expiry of the existing lease on 30.6.1987 and wish to continue occupying the same for a
period of twenty years from 1.7.1987 by paying the existing rental of Rs.500/- per quarter. By
reason of letter dated 19.5.1987, the appellant herein exercised its option to renew the lease for a
further period of twenty years commencing from 1.7.1989 on the same terms and conditions on
which the Burmah Shell held the lease immediately prior to the appointed day.
It was requested : "May we therefore request you to let us know when it will be convenient for
you to have the lease registered on terms similar to those existing in the current lease. On receipt
ofyour advice in this matter, we shall take further action."
Despite the said letter, the tenancy was purported to have been terminated and as the appellant
did not quit and deliver possession unto the lessor on expiry of the said period of lease, a suit was
filed in the Court of the District Munsif, Bhawani. It appears that the appellant herein had also
filed a suit for specific performance of contract which was not pressed.
The learned Munsif decreed the suit holding, inter alia, that although in terms of Section 5 of the
Act, the lease may be renewed for the same period but as perSection 107of the Transfer of
Property Act, necessary documents had to be executed by the company. An appeal there against
by the appellant herein was dismissed by the District Judge, Erode. The appellant herein filed a
second appeal before the High Court of Madras which was also dismissed stating:
"It is clear that the suit filed for renewal of the lease was only subsequent to expiry of the lease
and as such it cannot be said that the affidavit he has taken steps for the renewal of the lease,
especially when he kept quiet for nearly 3 years without taking any steps, in spite of the filing of
the suit by the appellant. It cannot be said that the filing of the suit can be construed as step being
taken for the renewal. When the suit for recovery of possession is pending, as soon as filing of
suit for renewal of the lease, the appellant ought to have taken steps for joint trial. He has
allowed two suits to be proceeded with, independently. That means, he wanted to take a chance
before both the courts below. This conduct of the appellant cannot be appreciated. Hence, I do
not find any error in the findings of the Courts below that the appellant has not taken any steps to
get the lease renewed prior to the expiry of the lease. Hence, the second appeal is dismissed.

REFRENCES
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1. https://www.lawyersnjurists.com/article/transferability-of-property-is-the-general-ruleits-
non-transferability-is-an-exception-under-transfer-of-property-act-2/
2. http://www.legalserviceindia.com/legal/article-522-transferable-and-non-
transferableproperty.html
3. https://www.legalindia.com/spes-successionis-as-an-exception-to-transferability/