Transferability of property

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.

Spes Successionis – 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 spes successionis
(chance of succession).

For instance, if X, who is the father of Y, has a property in his name.

Now, Y is an heir apparent to this property if X dies. However, Y is not
allowed to sell or transfer or alienate the property during the lifetime of
X without his consent because the property is in the name of X and it
will only be inherited by Y upon X’s death. Therefore, transfer of
property cannot be validated by a mere chance of succession.

In the case of Ananda Mohan vs. Gaur Mohan, 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.

Spes Successionis

It means expectation of succession i.e. a possibility of getting property

in future through succession i.e. through inheritance or will. Transfer
of spes successionis is void ab initio.
Chance of Heir Apparent - Heir Apparent-because there is no heir of
a living person. It is a mere chance because if a person hopes to succeed
to property of an intestate what and how much of it would be available
can only be ascertained at the death of the intestate. This is so because
no property may be left by the time he dies, or he may have made a will
with regard to it or that the heir apparent may die before person whose
property he hopes to succeed to. Thus there is only a hope, expectancy
or chance to succeed.

Chance of relation obtaining legacy on death of kinsman It means

expectancy of getting property under a will. Before death of testator the
legatee has simply a chance of getting property because either he may
not survive the testator or the will in his favour may not be the last will.

Any other mere possibility of like nature It means any other

possibility which is dependent on chance such as prize money to be
won in a lottery, possibility of catching fish etc. all of those which
cannot be transferred because of them being a mere chance.

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, X has leased out a building to Y for a period of 3 years,

and there are certain conditions laid down in the lease agreement
between the two. If Y, being the lessee, breaches any of the conditions
laid down in the agreement, then X, 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.

A contingent interest is distinguishable from a mere spes

successionis

Spes Successionis cannot be transferred, whereas, contingent interest

can be transferred. A contingent interest is something quite different
from mere possibility of a like nature of an heir apparent succeeding to
the estate, or the chance of a relation obtaining a legacy. It is also
something different from mere right to sue, as it is a well ascertained
form of property. It certainly has been transferred in this country for
generations in respect of which it is quite possible to raise money and
to dispose of it in any way the beneficiary choose. Contingent
ownership is based upon the present existence of an incomplete title
and not upon the mere possibility of future acquisition.

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.

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, 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.

A right to future maintenance- section 6 (dd):

In the case of Thimmanayanim vs. Venkatappa, 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,
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, 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.

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.