Transferable Property and Non-transferable Property

Transferable Property and Non-transferable Property

What is transferable property?

Meaning of transferable property: – Section 6 to the transfer of property act,1882 states that property of any kind may be transferred, except those which are provided by this act or by any other law for the time being in force.

What cannot be transferred?

Exceptions to the transfer of property come under Section 6(a)-6(h) of the act: –

Spes succession [Section 6(a)]: –

The chance of an heir-apparent in succeeding of getting the property, the chance of inherited relationship upon the death of any relative, or any other mere possibility of this nature cannot be transferred.

For example: – ‘A’ dies leaving his widow ‘B’, and his nephew ‘C’, here ‘C’ only have spes succession as his succession to the estate depends upon the factor, i.e., ‘B’ leaving the property intact.

Right of re-entry [Section 6(b)]: –

A mere right to re-entry cannot be transferred to anyone except the owner of the property affected thereby.
For example: – ‘A’ grants his plot to ‘B’ on a lease, for 5 years; with a condition that ‘B’ cannot dig a tank on the land, if ‘B’ does any such act then ‘A’ has the right to re-enter. So, here ‘A’ cannot transfer his right to re-entry to ‘C’ for the breach of the condition. If ‘A’ does any such act of transfer of his right to ‘C’ then this transfer will be regarded as invalid.

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Easement [Section 6(c)]: –

An Easement cannot be transferred except the dominant heritage.
For example: – Right to way, right to light, right to water, etc. These rights cannot be transferred without property which has its benefits.

Restricted interest [Section 6(d)]: –

An interest in a property which is restricted in its enjoyment by the owner to the lender then lender does not have the right to transfer the property.
For example: – If a house is lent to a person for his personal use, he cannot transfer his right of enjoyment to another.

# The following types of interest are non-transferable: –

Tenure of services
Religious office
Pre-emption right

Emoluments that are attached to the priestly office. However, it should be noted that the right to receive offerings in a temple is independent of the obligation to perform services which would include qualifications of a personal nature, and such rights are transferable.

Right to future maintenance [Section 6(d)]: –

The right to future maintenance is only for the personal benefit of the person to whom it has been granted, thus it cannot be transferred.

Mere right to sue [Section 6(e)]: –

A mere right to sue cannot be transferred.
The right to sue is personal to the party aggrieved.
For example: – Damages for the breach of contract or tort, as it claims for past means profits for suing an agent for his accounts, for pre-emption, etc.
These rights cannot be transferred.

Public office [Section 6(f)]: –

A public office is non-transferable property therefore cannot be transferred, nor can the salary of the public officer be transferred.
Thus, prohibition is based on public policy as a public office is held for personal qualities.
If the office is not public, it will be transferable, even if the discharge of its duties is indirectly beneficial to the public.

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Pensions [Section 6(g)]: –

The stipends which are paid to military, naval and air forces and civil pensions of government and political pensions cannot be transferred.
Pensions mean personal allowance or stipend not concerning any right of office but of special merit.

Nature of interests [Section 6(h)]: –

In this, no transfer can be made in three conditions: –

If it is opposed to the nature of interest affected. These things are non-transferable by inherent nature. For example: – light and air
Anything with an unlawful object or consideration within the meaning of Section 23 of the Indian contract act, 1872 cannot be transferred.

Is fraudulent
It is against public policy
It is prohibited by law.
Is of such a nature to defeat the provisions of any law.

A person legally disqualified to be a transferee. For example: – Judge or Legal practitioner. The judge or a legal practitioner or any officer connected with the court of law is disqualified to purchase any actionable claim.

Statutory prohibitions on the transfer of interest [Section 6(h)]: –

This section makes it clear that a tenant cannot have an occupancy of a non-transferable right in any way to transfer his interest.
But at the same time, this section also contains an exception to the general rule that states that all tenancies or leasehold are transferable. This gives effect to various enactments, according to which it states that certain categories of leasehold interests or tenancies are non-transferable. Similarly, where a farmer of an estate, in respect of which default has been made in paying revenue cannot show his interest in the holding.

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Who is competent to transfer?

Section 7 of the transfer of property act states about the person who is competent to transfer.
Every person who is competent to contract is competent to transfer property, which can be transferred in whole or in part.
He should be entitled to the transferable property or to be disposed of transferable property which is not his own.

Case laws for transferable property and non-transferable property

Official Assignee, Madras vs. Sampath Naidu, AIR 1933 Mad. 795

It was observed by the court that a mortgage executed by an heir is void even if he has subsequently acquired the property as heir. Therefore, it can be concluded from above that the transfer of spes- succession is void ab initio.

Shoilojanund vs. Peary Charon, (1902) ILR29 Cal 470

In this case, the court held that the right to receive voluntary and uncertain offerings in worship is restricted for personal enjoyment and, therefore, cannot be transferred.

Ananthayya vs. Subba Rao, AIR 1960 Mad 188

In this case, the court held that where there is an agreement between two people and according to which a person agrees to give a certain proportion of his income to his brother in consideration of having being maintained by the later. Now in such cases, this provision will not apply.

Saundariya Bai vs. Union of India, AIR 2008 MP 227

It was believed that the pension is non-transferable property, as long as it is unpaid and in the hands of the government. Another important aspect that needs to be noted is that pensions are separate from bonuses and rewards, and on the contrary, these are transferable.

Author: SAMEER AFZAL ANSARI,
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY , THIRD YEAR , SIXTH SEMESTER , BACHELORS OF ARTS AND BACHELORS OF LEGISLATIVE LAWS

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