INTRODUCTION (Section 6)

It specifically speaks about, what may be transferred. Property

of any kind may be transferred, except as otherwise provided
by this act or even by any other law for time being in force,
and these exceptions will be discussed in detail in the following
sub-sections.

Sub-Section(a)- Transfer of Spes Succession

The concept of Spes Succession can be explained with the help
of an Example– A family consists of father F and son S, F being
the owner of the property has the ownership with him during
his lifetime and no one else including his son is allowed to sell
the property, without his consent. Now, if F dies intestate, s
would inherit his property and hence, here it can be said that S
is the Heir Apparent. Here S’s succession to the property in the
future is a chance due to two main reasons.1

Firstly, As F is the owner of the property he may sell it, dispose

of it in any manner he thinks or make a will in someone’s
favour. Eventually, nothing will be left for S.

Secondly, son S dies during the lifetime of his father. Thus, if S

during the lifetime of his father transfers the property without
his father’s consent then the transfer would be void ab initio
and is also expressly prohibited by the act. In the case
of Official Assignee, Madras v. Sampath Naidu 2, it was
observed by the court that a mortgage executed by an heir
apparent is void even if he subsequently acquired the property

1
Samsuddin v Abdul Husein ,(1906) 31 Bom 165.

2
Official Assignee, Madras v. Sampath Naidu, AIR 1933 Mad. 795.

1
as an heir. Hence, from above it can be concluded that the
transfer of spes succession is void ab initio .

Sub-section (b)- Right of re-entry

The right of re-entry means the right to resume the possession
of the land which would have been given to some other person
for a certain period of time. And the cases of re-entry are
usually seen in the cases of leases, which would empower the
lessor to re-enter upon the demised premises if the rent is in
arrear for a certain period or if there is a breach of covenants
in the lease.

Re Davis and Company3, in this case, A purchased certain

goods from B, which was on a hire purchase agreement. This
agreement contained a clause which was that after purchase, A
would take the property and would also pay the instalments on
time, and in case A fails to pay the instalments B would enter
A’s premise and take the possession of the property. The
important point to be noted here is that the right to Re-enter is
a personal right of B and the same cannot be transferred by
him, and in any case, if he transfers this right to entry, to his
creditors or anyone, then the same would be void.

Sub-section (c)- Easement

An easement can be quoted as a right which the owner or the
occupier of certain land has in his possession for the beneficial
enjoyment of the said land, or it may even be to do, or to
continue to do something or to prevent something from being
done. This very concept of easement includes under its ambit
an important principle of ‘profits a pendre’, which actually
means– A right to enjoy the benefits arising out of the land 4.
3
Re Davis and Company,22 QBD 194.
4
Om Kukerjeya , Property of any kind may be transferred, academia (18 th sept 2016)

2
Example: Where A as an owner has the right of way over the
way of the land of another for purposes which are connected
with the beneficial use of his own land then, this can be termed
as an easement5. Similarly, in the case of Ganesh Prakash v.
Khandu Baksh6, it was held that the right to dry clothes over
the flat masonry and roofs of shops is a right of easement.

It should also be noted that an easement cannot be transferred

apart from the dominant heritage to which by the nature of the
right it is attached, and this was held in the case of Sital v.
Delanney7.

Sub-section (d)- Restricted Interests

This clause states that a person cannot transfer anything which
is interest restricted in its enjoyment to him. For example- Two
brothers partition a property among themselves and in addition
give a right of pre-emption, which means one of them if at all
wants to sell the property should first offer it to the other
brother, who would be preferential in buying it. Here it should
be known that these rights are personal rights and cannot be
transferred. And if any such transfers take place such a
transfer would be considered void. In the case of Shoilojanund
v. Peary Charon8[10], it was held that a right to receive
voluntary and uncertain offerings at worship are interest
restricted to personal enjoyment and hence, cannot be
transferred.

The following kinds of interest can be held non-transferable:

1.   Services Tenure
2.   Religious Office
5
Mohammed v. Ananthachari,AIR 1998 Ker 298
6
Ganesh Prakash v. Khandu Baksh,AIR 1918 Oudh 296
7
Sital v. Delanney,(1916) 20 cal WN 1158, 34 IC 450
8
Shoilojanund v Peary Charon, (1902) ILR29 cal 470

3
 3.   A right of Pre-emption
4.   Emoluments which are attached to the priestly
office. But it should, however, be noted that the right to
receive offerings which are made at a temple is
independent of on obligation to perform services which
would involve qualifications of personal nature, and
such rights are transferable.

Sub-section (dd)- Right to Future Maintenance

The sub-section of maintenance, it has been established that a
right to future maintenance is solely for the personal benefit of
the person to whom it has been granted and therefore, this
very right cannot be transferred further. Thus an example can
be quoted here regarding the rights of a woman to either
receive maintenance from her husband under a decree or
award of the court9. Or to receive a share from the property on
the demise of the husband or under a will is a personal right.
This right can neither be transferred nor can it be attached by a
court’s decree. And this was held in the case of Dhupnath v.
Ramacharit10.

          

Sub-Section(e)- Mere right to sue

It was in the landmark case of Sethupathi v. Chidambaram11,
where it was held that a mere right to sue is something which
cannot be transferred. Here the word ‘mere’ itself means that
the transferee has developed no interest than just a bare right
to sue.

9
Dr Poonam Pradhan Saxsena, Property law 67-81, (2 d ed .2012)
10
Dhupnath v Ramacharit, AIR 1832 All 662
11
Sethupathi v. Chidambaram, AIR 1938 PC 126

4
For Example- A contracts to buy goods from B On due date A
fails to take delivery and B sells the goods in the market at a
loss of Rs.10000. B transfers the right to recover the damages
to C. The transfer is invalid12.

Sub-section (f)- Public office

It should be noted in the first place that a public officer cannot
be transferred. In the same fashion, even the salary of the
police officer cannot be transferred whether before or after it
becomes payable. The word public officer is meant to be
someone who has been appointed to discharge a public duty,
and in turn, receive a monetary return of it which is in the form
of the salary. Here, as the salary becomes something which is
given on return of the personal service of a person, it can
neither be transferred or attachable.

In the case of Ananthayya v. Subba Rao13, it was held that

where there is an agreement between two people and
according to which a person agreed to pay a certain proportion
of his income to his brother in consideration of his having been
maintained by the latter, now in such cases this provision will
not be applicable, which was held by the court.

Sub-section (g)- Pensions

Pension is like a salary, it is a sum of money periodically
payable by the government which can be to an ex-serviceman
or to a person who has ceased to be in employment. In the
case of Saundariya Bai v. Union of India 14 it was held that
pension is non-transferable, so long as it is unpaid and in the
hands of the government. Another important aspect which

12
John Sprankling , Understanding Property Law 109-120, (3d ed. 2000)
13
Ananthayya v. Subba Rao, AIR 1960 Mad 188
14
Saundariya Bai v. Union of India, AIR 2008 MP 227

5
should be taken into consideration is that pension is different
from bonus and rewards, and also, on the contrary, these are
transferable.

Sub-section (h)- Nature of interest

No transfer can be made insofar as it is opposed to the nature
of the interest affected thereby. Thus, the things which are
dedicated to public or religion uses or service inam, cannot be
transferred.

Transfer for Unlawful object or Consideration – Any transfer

which is for an unlawful object or consideration is not
permissible under this section. And it is also in consonance with
section 23 of the Indian Contract Act, which provides that
consideration or object is unlawful if

1.  Is Fraudulent
2.  It is opposed to public policy
3.  It is forbidden by law.
4.  Is of such a nature that it defeats the provisions of any
law.

Transfer of Person Legally Disqualified– A transfer to a person

to be legally disqualified to be a transferee is not permitted.
Under section 7 of the said act, the transferee is required to be
competent to the contract and also should not have been
disqualified legally.

Sub-section (i)- Statutory prohibitions on the

transfer of Interest
This section makes it clear that a tenant having an un-
transferable right of occupancy cannot in any way transfer his
interest, and this was held in the case of Shanti Prasad v.
6
Bachchi Devi15 . But at the same time, this clause even
contains an exception to the general rule which says that all
tenancies or leaseholds are transferable. It gives effect to
different enactments whereby it says certain categories of
leasehold interests or tenancies are made non-
transferrable16[18]. Similarly, where a farmer of an estate, in
respect of which default has been made in paying revenue,
cannot assign his interest in the holding.

15
Shanti Prasad v. Bachchi Devi , AIR 1948 Oudh 349
16
Anne Rodell, Clare Harris, Property Law and Practice 120-129, (3d ed 2009)