Property Law – II Project || 2021-22

DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

PROPERTY LAW - II PROJECT

“Transfer of actionable claims: A Critical Analysis”

Submitted to: Submitted

by:
Dr. Manish Singh Sanket Khandelwal
(Associate Prof.) Enrolment No: 190101127
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ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teacher, Dr. Amandeep Singh, for giving me
such a challenging topic and also for her exemplary guidance, monitoring and constant
encouragement throughout the course of this project.

I also take this opportunity to express a deep sense of gratitude to my seniors in the college
for their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.
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CONTENTS

ACKNOWLEDGEMENT.........................................................................................................2

INTRODUCTION......................................................................................................................3

WHAT IS ACTIONABLE CLAIM?.........................................................................................4

Unsecured Debt......................................................................................................................5

Existent Debt..........................................................................................................................5

Accruing Debt........................................................................................................................5

Conditional or Contingent Debt.............................................................................................6

BENEFICIAL INTEREST IN MOVABLE PROPERTY.........................................................6

INSTANCES OF ACTIONABLE CLAIMS.............................................................................7

CLAIMS NOT COVERED UNDER ACTIONABLE CLAIM................................................7

INSTANCES OF CLAIMS NOT RECOGNIZED AS ACTIONABLE CLAIMS...................8

INCAPABLE TRANSFEREES OF ACTIONABLE CLAIM..................................................9

ACTIONABLE CLAIM IS MOVABLE PROPERTY..............................................................9

CONCLUSION........................................................................................................................10

REFERENCES.........................................................................................................................11
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INTRODUCTION

The Transfer of Property Act was enacted in the year 1882 with the objective of codifying
the laws relating to transfer of properties. This Act is not exhaustive in nature, as it does not
cover all kinds of transfers, or all types of properties. The Transfer of Property Act, 1882
does not incorporate all the rules relating to the different modes of transfer, neither does it
include the transfer of all properties. There are other Acts which codify the laws regarding
different types of property such as the Sale of Goods Act, 1930.

This Act also does not deal with transfers by operation of law, which includes transfers in
execution of a Court’s decree. [1] This Act only covers inter vivos transfers which are
transfers between living persons by act of parties through express or implied contracts. Also,
the Act mainly deals with transfer of immovable properties, but some of the provisions of the
Act are also applicable to movable properties.

So, to know whether the Transfer of Property Act, 1882 will apply to a particular transaction
or not, it is necessary to determine the mode of transfer as well as the type of property being
transferred. One of the intangible properties that the Act deals with is actionable claim that is
discussed further in detail.

WHAT IS ACTIONABLE CLAIM?

Actionable claim is defined in Section 3 of the Transfer of Property Act, which was included
in the Act by the Amending Act II of 1990. Actionable claim is an intangible movable
property, and its transfer is dealt with in Chapter VIII of the Act.

According to Section 3 of the Act, actionable claim means:

1. Claim to an unsecured debt

2. Beneficial interest in a movable property

These are both claims that are recognized in the Courts of law as affording relief. There are
other types of claims also that afford relief and are actionable in the Courts of law, such as
secured debts and tortuous suits like defamation or nuisance. But those are not categorized
under the meaning of actionable claim. The term actionable claim only covers the above
mentioned two types of claims.
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Unsecured Debt

Unsecured debt refers to all monetary obligations of a certain amount, and that is not covered
by any security in the form of mortgage, pledge or hypothecation. This is not just limited to
the concept of loans forwarded by a creditor to a principal debtor. It extends to all kinds of
monetary obligations, such as rent or payment on sale of property etc.

The three requirements for a transaction to qualify as unsecured debt are:

1. Monetary obligation

2. No security

3. Certainty of amount of money obligated

According to Sunrise Associates v. Govt. of NCT of Delhi [2], an actionable claim may be
existent in praesenti, accruing, conditional or contingent. So, the three types of unsecured
debt are:

1. Existent Debt

2. Accruing Debt

3. Conditional or Contingent Debt

Existent Debt

This is the kind of debt that has already become due, and is payable and enforceable in the
present. For instance, if Mr. A sells a house to Mr. B in present, and the monetary
consideration has to be paid then and there, then the consideration becomes payable right
then, and this is existent debt.

Accruing Debt

If a monetary obligation is due in present, but becomes payable on a future date, then that is
accruing debt. For example, if Mr. A is the employee of Mr. B and he gets his salary on the
last day of every month, then his salary is accruing debt during that month, as it is due
throughout the month, but it becomes payable only on the last day of the month. So, if Mr. B
fails to pay the salary, then Mr. A can approach the Court to claim it only after the last date
of the month, when it becomes payable.
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Conditional or Contingent Debt

A debt is conditional or contingent if it becomes payable on the fulfillment of a condition or

contingency.

It is called conditional debt when the stipulation is in control of the parties. For example, an
agreement between A and B that A will pay Rs. 1000 if B buys C’s house, then this is a
conditional debt. Here, Rs. 1000 becomes payable and B can claim it only after he fulfills the
condition.

On the other hand, when the stipulation is beyond human control, then it is called a
contingent debt. For instance, if A promises to pay a particular amount to B if C’s ship sinks,
then since the sinking of the ship is beyond the control of the parties, so it is a contingent
debt.

BENEFICIAL INTEREST IN MOVABLE PROPERTY

If a person has the right to possess a movable property, then it is said that he has beneficial
interest in that movable property. But if that property is not in his possession, then he has an
actionable claim. So, the requirements to constitute this type of actionable claim are:

1. Movable property;

2. The movable property is not in the possession of the claimant;

3. The claimant has the right to possess that movable property.

For example, if A sells his car to B and B has completed his obligation, that is, B has
forwarded the consideration from his side, then B has the right to possess the car; but if B is
unable to acquire possession, then B can approach the Court to claim this possession.

But if the movable property is already in the possession of the claimant, either actual or
constructive, then he cannot claim possession. So, if in the previous example, A had given
the car keys to B, then it can be said that B has constructive possession, and hence, B cannot
approach the Court to claim possession.
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Moreover, the right to possess of the Claimant must be a legal right, which is recognized by
the law. For instance, if a person of unsound mind or a minor, A sells 100 bags of wheat (or
any other movable property) to Mr. B, and Mr. B also forwards the consideration from his
side, that is Mr. B fulfills his obligations, then also Mr. B cannot claim possession. This is so
because Mr. B does not have a legal right to possess, as A does not have the capacity to
contract, and the agreement between A and Mr. B is void ab initio. Now, since the right to
possess of Mr. B is not recognized legally, so this is not covered under the heading of
actionable claim.

INSTANCES OF ACTIONABLE CLAIMS

Some examples of actionable claims are:

1. Claim for arrears of rent. [3]

2. Claim for money due under insurance policy. [4]

3. Claim for return of earnest money. [5]

4. Right to get back the purchase money when the sale is set aside. [6]

5. Right of a partner to sue for an account of the dissolved partnership firm. [7]

6. Right to claim benefit under a contract for the purchase of goods. [8]

7. Right to get the proceeds of a business. [9]

In all of these instances the amount for which the suits are filed are certain and definite. So,
such claims are transferable under actionable claims.

CLAIMS NOT COVERED UNDER ACTIONABLE CLAIM

Various types of claims are not covered under the head of actionable claim, and hence cannot
be transferred under the Transfer of Property Act.

The right to claim damages, whether arising out of a tortuous or contractual liability are not
actionable claims. [10] This right is not an unsecured debt, even though it is a monetary
obligation because of two reasons. First of all, it is an uncertain amount of money, and
second, it is not a part of the original transaction. Actionable claim under the category of
unsecured debt only covers the amount in the original transaction. Hence, it covers the
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principal amount and the interest upon that principal, as these are of a certain amount.
Whereas, damages is uncertain, and hence, does not come under actionable claim.

Moreover, in cases of tortious liability such as defamation, or nuisance, the damages is

uncertain and personal or attached with immovable property, and hence cannot be
transferred. For instance, if A defames B, then B has the right to sue A for defamation; this
right is personal in nature as B has been defamed and so, only B can have the right to sue A.
So, this right cannot be transferred and it is not an actionable claim. An instance of nuisance
would be if person X’s neighbour, Y, let his drain pipes overflow into X’s lawn. Here, X has
the right to sue for damages for the nuisance caused by Y because of virtue of ownership that
X has over his lawn. Hence, X is the only person who has this right to sue and so, it is not a
transferable actionable claim. But, if X sells his property to a third person, Z, then Z, along
with the property, will also receive this right to sue Y for nuisance.

In the case of Jai Narayan v. Kishun Dutta [11], it was held that a claim for mesne profits is
not an actionable claim, as mesne profits are unliquidated damages and it is not a claim to
any beneficial interest in moveable property, not in the possession, either actual or
constructive, of the claimant. Thus, it was a “mere right to sue” and not an actionable claim.

Rights such as copyright [12], patent or trademark are not actionable claims because they
already vest in the person who has it. These have their own governing Acts and are not
transferable as they are the intellectual property of the claimant, and any other person cannot
be allowed to claim that.

INSTANCES OF CLAIMS NOT RECOGNIZED AS ACTIONABLE CLAIMS

There are certain types of rights and claims which are not recognized as actionable claims,
and hence cannot be transferred. Some examples of this type of claims are:

1. Right to get damages under the law of torts or for the breach of a contract: Since
these are uncertain amounts of money and hence, this cannot be transferred. [13]

2. Claim for mesne profits: This is also uncertain, and so cannot be allowed to be
transferred. [14]
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3. Copyright, patents and trademarks: These rights are personal in nature, as these
are available to that particular person. [15]

4. Decree or judgment of debt: This cannot be transferred under actionable claim, as

after the judgment has been pronounced, no action subsists that could be
transferred. [16]
INCAPABLE TRANSFEREES OF ACTIONABLE CLAIM

Section 136 of the Transfer of Property Act, 1882 declares certain groups of people who
cannot deal in the transfer of actionable claims. Section 136 states that-

“No judge, legal practitioner or officer connected with any Court of Justice shall buy or
traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable
claim, and no Court of Justice shall enforce, at his instance, or at the instance of any person
claiming by or through him, any actionable claim so dealt with by him as aforesaid.”

This Section bars Judges, legal practitioners or officers of Court from receiving any share or
interest in any actionable claim, and hence they cannot be the transferee in transfer of
actionable claim. Section 6(h)(3) provides that any property cannot be transferred to a person
who is legally disqualified from receiving that property, that is, transfer cannot be made to
legally disqualified transferees, and Section 136 legally disqualifies these persons from being
transferees of actionable claims and hence, actionable claims cannot be transferred to this
class of people.

The reason behind this prohibition is to ensure impartiality of the judiciary. The Privy
Council illustrated the importance of this prohibition in the case of Kerakoose v. Serle [17]
by stating that- “It is of great importance that no officer of a Court of Justice should be even
exposed to the suspicion that in the discharge of his official duties his conduct may be
influenced by any personal consideration.”

ACTIONABLE CLAIM IS MOVABLE PROPERTY

Actionable claim is an intangible movable property. This can be inferred from the
interpretation of Section 2(7) of the Sale of Goods Act, 1930, which reads as follows-

“‘goods’ means every kind of moveable property other than actionable claims…”
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Section 2(7) of the Sale of Goods Act, 1930 defines “goods”, wherein it states that goods
include all kinds of movable property, except for actionable claims. This Section provides for
an exception clause to exclude ‘actionable claims’ from the category of movable property.
This exclusion would not have been required if the actionable claim was an immovable
property. Hence, the interpretation of Section 2(7) of the Sale of Goods Act, 1930 shows that
an actionable claim is a movable property.

CONCLUSION

Actionable claim is an intangible movable property, and it is transferable. It mainly refers to

the types of claims that can be recovered through proceedings in Courts. Out of multiple such
kinds of claims, the concept of actionable claim includes two types, which are claims on
unsecured debt and beneficial interest in movable property. Such claims can be transferred to
another person, but certain people are barred from becoming transferee of actionable claims.
This bar has been imposed in order to maintain the integrity of Court proceedings. The
concept of actionable claims is a highly important one that all law students must be clear
with.
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REFERENCES

[1] Arvind Kumar v. Govt. of India, (2007) 5 SCC 745.

[2] AIR 2006 SC 1908.

[3] Daya Debi v. Chapla Debi, AIR 1960 Cal 378.

[4] Varjivan Das v. Magan Lal, AIR 1937 Bom 382; Sunrise Associates v. Govt. of NCT
Delhi, AIR 2006 SC 1908.

[5] Lalchand v. Hussainio, (1927) 97 IC 257.

[6] Chinnappa Reddy v. Venkatramanappa, AIR 1942 Mad 209.

[7] Bharat Prasad v. Paras Singh, AIR 1967 All 15.

[8] Zaffar Mehar Ali v. Budge-Budge Jute Mills, (1907) 34 Cal 289; Shah Mulji v. Union of
India, AIR 1957 Nag 31.

[9] Alkash Ali v. Nath Bank, AIR 1951 Assam 56.

[10] Moti Lal v. Radhey Lal, (1933) All 642; Inder v. Raghubir Singh, (1930) 5 Luck 547.

[11] AIR 1924 Pat 551.

[12] Savitri Devi v. Dwarka Prasad, (1939) ALJ 71.

[13] Moti Lal v. Radhey Lal, (1933) All 642; Inder v. Raghubir Singh, (1930) 5 Luck 547.

[14] Jai Narayan v. Kishun Dutta, AIR 1924 Pat 551.

[15] Savitri Devi v. Dwarka Prasad, (1939) ALJ 71.

[16] Govindarajulu v. Ranga Rao, AIR 1921 Mad 113.

[17] (1846) 3 MIA 329.

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