Critical analysis on Section 6 of transfer of property act 1882
Transferable and non-transferable property under Transfer of Property Act, 1882
Section 6 of the transfer of property act 1882 deals with the concept of what may be transferred .property & interests in property as a general rule are transferable, transferability of property is based on Latin maxim “alienation rei prefertur Juri accrescendi” and the meaning of the maxim goes like this– Law favors alienation to accumulation. Therefore it should be noted that any actions made to interfere with the power of the owner to alienate his interest in the property are considered disfavor in law. The transfer of property act, 1882 is civil legislation of great importance owing to the huge number of property-related transactions taking place throughout the country.
Section 6 states that property of any kind may be transferred, except as otherwise provided by the Act or by any other law for the time being in force. These exceptions are discussed from subsection (a) to (i).
Sub-section (a) Spes-Successionis
Spes –Successions mean the expectation of succession.
Spes –successions include
- Chance of an heir-apparent succeeding to an estate,
- Chance of a relation obtaining a legacy on the death of a kinsman,
- Any other mere possibility of like nature.
These Following things are not transferrable
Chance of an heir apparent: it means apparently an heir but not a legal heir. Heir apparent is a person who would be heir in the future if he survives the propositus.
Illustration: father & son are the heirs of each other. If a father dies first, a son will be an heir. If a son dies first father will be the heir .who would die first is not known because it is an uncertain future event. Here the son is only heir apparent & cannot transfer property of father while the father is alive.
Chance of a legacy: it means expectancy of getting a certain property under a will. Such transfer by legacy is not a valid transfer.
A expect that C, his aunt who has no issue, would bequeath her properties worth Rs,10 Lac, transfer them to Z . the transfer is invalid.
Any other mere possibility of like nature: it excludes any other possible interest of property which is uncertain as to the chances of heir apparent or chance of a relation of getting the property under the will.
Subsection (b) Mere right of re-entry
Right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby,
Re Davis and Company, 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 installments on time, and in case A fails to pay the installments B would enter A’s premise and take 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
The easement is a right that exists for the beneficial enjoyment of a land (dominant heritage)& is exercised upon the land of another person(Servient
heritage). Easement right is not a personal right but attached to dominant heritage. It cannot be separated & transferred. in the case of Ganesh Prakash v. Khandu Baksh, it was held that the right to dry clothes over the flat masonry and roofs of shops is a right of easement.
Sub section (d) Restricted interest
An interest in the property may be restricted or reserved for the enjoyment of the owner personally. Such interests can not be transferred. For example, if A gave his land to B for performing a marriage of B’s daughter for some days. B after performing marriage gave land to C. such transfer is invalid.
Sub section (dd) Right to Future Maintenance
The right to maintenance is purely a personal right & can neither be transferred nor be attached in execution of the decree. Maintenance can be granted through a personal contract or by court order. Ranee Annapurna v. Swaminath, held that a right to future maintenance is not transferable.
Subsection (e) Mere right to sue
The mere right to sue cannot be transferred. The right to sue for a definite sum of money is an actionable claim and can be transferred but the right to sue for the indefinite sum of money is not transferable.
Union of India v. Sri Sarada Mills,the Apex court held that a bare right of action for claims to damages for breach of contract or claims to damage for a tort cannot be transferred because the law does not recognize the transaction which may be the savor of maintenance of champerty.
Subsection (f) Public office
It provides that a public office cannot be transferred, nor the salary of a public office, whether before or after it has become payable. These interests are made nontransferable to ensure the dignity of the office held by him and the proper performance of his duties.
In Corporation of Liverpool v Wright, it was observed: Where the law assigns fees to any office, it is for the purpose of upholding the dignity and performing properly the duties of that office, and the policy of law will not allow the officer to bargain away those fees to the appointer or anyone else.
Sub-section (g) Stipends & Pensions
It provides that the stipends allowed to military, naval, air-force, and civil pensioners of the government and political pensions cannot be transferred.
In Satraji Dongrochand v. Madho Singh, the madras high court said that an allowance granted to a political prisoner under the state prisoner’s Regulation III of 1818 would be a political pension within the scope of C1.(g) of the act. Therefore, it could not be transferred.
Subsection (h) Nature of Interest, Unlawful Object, Disqualification of Transferee
This clauses deals in three classes of the case it says that no transfer can be made.
- Opposed to the Nature of Interest: there are certain properties which by their very nature can neither be owned nor transferred like Res communes air, light, space, sea.
- Transfer for an Unlawful Object or Consideration: any transfer is unlawful where its object of consideration is unlawful as per section 23 of the Indian contract act 1872.
A transfer is unlawful if it is forbidden by law
If it is fraudulent
It is of such nature that if permitted it would defeat the provision of any law
If it involves injury to person or property of the other
If it was immoral or opposed to public policy.
- Transfer made to a disqualified transferee: A legally disqualified person cannot be a transferee i.e., the property cannot be transferred to him. Section 136 of this Act disqualifies certain persons to be a 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.
Subsection (i)Untransferable interests
Under this clause, a tenant having an untransferable right of occupancy cannot alienate or assign his interests in the occupancy. 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.
1.S.N. Shukla ,Transfer Of Property Act, (Allahabad law agency, Haryana, 25th ed., 2015)
2.Dr.G.P.Tripathi , The Transfer Of Act , (Central law publications , Allahabad , 9th Ed ., 2020)
3.Shriniwas Gupta ,A Textbook On Transfer Of Property Law , (Thomas reueter legal, south asia private limited, 2017)
4.H.N Tewari, the Transfer Of Act, ( Allahabad law agency, Haryana , 4th ed., 2005)
5.Dr G.C. Bharuka , Mulla the Transfer of property Act 1882, ( Lexis nexis butterworth wadha ,Nagpur,10th ed., 2006)
- Ruth Diya C , Transferable And Non Transferable property (visited on 9 Dec 2021 https://www.legalserviceindia.com/legal/article-522-transferable-and-non-transferable-property.html)
Author: Gururaj udagi,
Karnataka state law university, 3rd year Student