DOCTRINE OF SPES SUCCESSIONIS – TRANSFER OF PROPERTY ACT 1882
The transferability of property is always a general rule whereas non-transferability is an exception. It is generally based on the maxim alienation rei prae fertur jurisdiction accrescendi which states that law leans in favour of transferability not accumulation. Now before understanding spes successionis should first understand what is non Transferable property.
NON TRANSFERABLE PROPERTY:
Law makes the transfer of all properties whether movable or immovable valid except certain properties. There are exceptions laid down in section 6 which contains list of cases wherein a property is not Transferable. Section 6 states that the property of any kind may be transferred except or otherwise provided by this act or by any other law for the time being in force. One of the most important exception stated in section 6 is spes successionis.
In the case of Kansing Kalusing Thakore v. Rabari Maganbhai Vashrambhai 2006 it was held that the Transfer of Property can be prohibited only by provision of law and not by judgement or direction. Moreover the court stated that the restrictions that appear in a
tenancy legislation can be waived by the competent authority.
● Clause(a) : spes successionis
This is the first exception which means expectation of succession. It means that there is a chance of getting property in future through succession but this law states that spes successionis is not transferable.
Spes successionis includes:-
(i) Chance of an heir apparent succeeding to an estate,
》This clause states that an Heir apparent is not a legal heir but apparently an heir. When a deceased person whose property the heir apparent is going to inherit dies without making any will then the heir will inherit the property. The term heir apparent has been taken from the maxim memo es heres viventis which states that no one is the hier of a living person.
The possibility of an apparent heir to inherit the property of the propositus is only an expectation which may be unsuccessful by the activity of some person having the power to dispose of the property.
In India reversionary rights under Hindu law are merely a chance of getting properties and that is why it is spes expressions. The reversioner is a person who inherits the properties of a window held by her for life during the life of Window this right remains suspended but it reverts back to the the reversioner on her death provided the reversioner survived. In Amrit Narayan v. Gaya Singh the lordship of privy Council held that a Hindu reversioner has no right or interest in praesenti in the property which the female owner holds for her life until it vests in him or her death should he survived her he has nothing to assign or even to transmit to his heirs. His right becomes concrete only on a demise until then it is mere a spes successionis.
•In case of a Muhammadan heir succeeding to an estate has also been held to a mere spes successionis. It could not be the subject matter of transfer. In the case of Hameed v. Jameela AIR 2014 A lady heir apparent had taken the full value of a share in the succession from the transferee court held that her to be estopped from claiming share in the property of her father on his dying intestate the . Moreover the court stated that the doctrine of estoppel could be used to estop and heir Apparent on account of misconduct from succeeding to the estate.
In stockley v. Parsons it was stated that no one can have any share in the property of a living person during his / her lifetime where as such person has got only hope of succeed in the property.
(ii) chance of relation of training a Legacy on the death of a kinsman
》 chance of legacy has been made non-transferable. This clause provides that the chance of a relation of obtaining a legacy on the death of a salesman is not Transferable. Legacy means having some hope of getting certain property under a will. Will comes into action only after the death of the testator . If a person has made two or more will then only the last one will be made applicable. Legatee under the final will only get the legacy.
(iii) Any other mere possibility of a like nature.
》This clause exempts any other possibilities of a like nature from the purview of transferability .There is any other possible interest which is nearly a future uncertain then such interest should not be made Transferable. Any property which is nearly a future uncertain possible interest should not be made a Transferable property.
Some of the examples are next cast of fisherman’s net , crops in fields or fruits in trees etc. It is not guaranteed that any fish will be caught in the net or whether the trees will have fruits.
In the case of Sheshammal v. Hasan Khani Rawther AIR 2011 The court held that where an heir apparent received advantage for giving up his future right to property then he could not be allowed benefit of the doctrine of spes successionis. He became estopped from claiming share in the inheritance.
Author: sarthak udaipuria,
ICFAI LAW SCHOOL HYDERABAD, 4TH YEAR