This article is written by Shristi Roongta from Amity Law School, Kolkata. In this article, the immovable properties that are not the subject matter of transfer under the Transfer of Property Act, 1882 has been discussed in detail.

Introduction

The Transfer of Property Act, 1882 contains the specific provisions regarding what constitutes a transfer and the conditions attached to it. The Transfer of Property Act, 1882 is defined as an act by which a living person conveys property in present or future to one or more other living persons or himself and one or more other living persons, and to transfer the property is to perform such act. The living person includes a company whether incorporated or not or an association or body of individuals.

Section 6 of the Transfer of Property Act, 1882 deals with what may be transferred. It lays down the exception to the general rule. Before moving forward, it is important to know what the word “property” means. The word property has not been defined in the Act but has been given a wide scope meaning and includes all descriptions of properties. The word property also covers both tangible materials such as buildings, lands, etc. and intangible materials such as copyrights, tenancy, etc. In this article, the properties immovable in nature and are not transferable under the act will be discussed in detail. 

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What is immovable property?

Section 3 of the Act defines what is an immovable property. Though the section is not exhaustive, it lists down what all things are immovable property which does not include standing timber, growing crops, or grass. These three items come under the movable property with certain exceptions. In simple terms, immovable property is a property that cannot be moved. Section 3(26) of the General Clauses Act defines immovable property as it shall include land, benefits to arise out of land, and things attached to the earth. Therefore, immovable property is attached to earth except for standing timber, crops, or grass.

The difference between movable and immovable property

The following are the differences between movable and immovable property:

  • The movable property can be easily transferred from one place to another without changing its capacity or quantity. While an immovable property cannot be easily transferred from one place to the other place and if transferred then it loses its originality and changes in its shape or capacity or quantity.
  • The movable property is the property that is not attached to the earth and can be moved. Example- car, books, etc. but if mango trees are cut and sold for timber then it is considered as movable property. In the case of immovable property, which is attached to the earth and cannot be moved. Example: buildings, trees, etc but if mango trees are sold for nourishment purposes and fruits then it is considered immovable property. 
  • The registration of the movable property is not mandatory and optional under the Indian Registration Act, 1908. In the case of immovable property, if there is a transformation at any point of time whose subject value exceeds Rs. 100, the registration is mandatory under the Indian Registration Act, 1908.
  • The movable property is liable to sales tax, central tax though subject to certain restrictions under the Andhra Pradesh General Sales Tax, 1957 and also the Central Sales Tax. whereas the immovable property is not liable to sales tax but stamp duty and registration fees have to be paid under the respective acts.
  • In the case of movable property, the transfer is complete when there is mere delivery with intention to transfer. It is not the same in case of immovable property. In this, the mere delivery with intention does not constitute a valid transfer. The property transferred must be registered in the name of the transferee. 

Section 6 of TPA, 1882

Section 6 of the Transfer of Property Act, 1882 lays down the exceptions to the general rule. Property and interest in property forms as a general rule which is transferable. The transferability of the property is based on the maxim ‘alienation rei praefertur juri accrescendi’, which means law favours alienation to accumulation. Hence, it is stated that any actions that are made to interfere with the power of the owner to alienate his interest in the property are not considered in favour of the law.

Analysis

The main aim of this article is to provide the immovable properties which are not transferable and also to differentiate between properties to have a clear understanding of the concept. Section 6 of the Act states about the properties which are immovable and not transferable also. The detailed analysis of the exceptions are summarised below:

Section 6(a) : Spes Succession

This section states that:

  • The chance of heir-apparent succeeding to an estate cannot be transferred.
  • The chance of a relation obtaining a legacy on the death of kinsman cannot be transferred.
  • Any mere possibility of a like nature cannot be transferred.

Example 1

A is the owner of a property, if he dies his son B will get the property as he is the legal heir and here it can be said that B is the heir-apparent. But this same property cannot be transferred to B during the lifetime of A.

Example 2

Son B dies during the lifetime of his father A, if during the lifetime of his father, he transfers the property without his father’s consent then the transfer would be void ab initio and is prohibited by law.

Section 6(b) : Right of re-entry

This clause states that the right to resume the possession of the land which could be given to some other person for a certain period. For example, lease cases. As per this, if there is a mere right of re-right for breach of a condition, it later cannot be transferred to anyone except the owner of the property who is thereby affected. 

Example

A grants a lease of land to B for 3 years. At the expiry of 3 years, if he transfers the right of re-right to C then this transfer shall be invalid.

Section 6(c) : Easement 

An easement means a right that the owner or the occupier of certain land has in his possession for the beneficial enjoyment of the said land. It can be said that the right to use or restrict the use of the property of some other person. An easement cannot be transferred except the dominant heritage.

Example

M, the owner of the house has the right of way over their adjoining land with N. Hence, M cannot transfer his right without transferring the house.

  • In the case of Sital v. Delanney, the court held that an easement cannot be transferred unless the dominant heritage right is attached to it. 

Section 6(d) : Restricted interest

A person cannot transfer anything that is interest restricted in the enjoyment to him. Restricted rights are personal and cannot be transferred and if such transfer happens then it would be void. The following types of interest are not considered transferable, such are:

  • Service tenure;
  • A right of pre-emption;
  • Emoluments;
  • Religious office.

Example

The right of the priest to receive the offering. This right is his restricted interest and he cannot transfer this to another person who may be a doctor by profession.

Section 6(dd) : Right to future maintenance 

This clause states that the right to future maintenance whatsoever cannot be transferred in any manner. This is because the right is solely a personal benefit given to a person and so he cannot transfer his benefit to someone else.

Example

A woman who receives maintenance from her husband under a decree or award or order.

  • In the case of Dhupnath Upadhya v. Ramacharit, it was held that where the property is given as maintenance, then the person cannot transfer the property during her lifetime. A right of maintenance is a personal right and cannot be taken away.

Section 6(e) : Right to sue

According to this clause, a mere right to sue cannot be transferred. A right to sue cannot be transferred as the transferee acquires no interest in the subject matter of the suit as much as the owner of the property would. 

Example

X published defamatory statements against Y and Y filed a suit against X. But Y cannot transfer his right to Z to recover damages for him. If Y transfers his right to Z then this transfer will be held void.

Section 6(f) : Public Office

A public office cannot be transferred and so the salary of the public officer, whether before or after it becomes payable. A public officer is a person who is appointed to discharge his duty towards the public and for doing such an Act he is paid in the form of salary. This salary is a personal benefit to him that cannot be transferred.

Section 6(g) : Pensions

Generally, pensions are the monetary value like a salary, given to a person timely who ceased to be a government employee. This pension is his benefit which he cannot transfer just like his salary. 

Section 6(h) : Nature of interest 

According to this section, the Transfer should not affect the nature of the interest of anyone. For example, the public or religious uses or services cannot be transferred. If any transfer whose object is unlawful or has unlawful consideration is not permissible under this section. Also if the property is transferred to someone who is disqualified legally to be a transferee then such transfer is not valid. 

Example

X, Y, and Z entered into an agreement for the division of gains among them which they acquired by fraud. Hence, this agreement is void as the consideration is unlawful.

What does not constitute transfer?

Property of any kind can be transferred: exception to this rule

The general rule of the Transfer of Property Act is that any property can be transferred whether movable or immovable. Section 6 states that property of any kind can be transferred, except as otherwise provided by this act or by any other act for the time being in force. It lays down the exceptions as:

  1. The chance of heir-apparent succeeding to an estate, the chance of a relation of obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature cannot be transferred.
  2. A mere right of re-entry for any breach of condition and cannot be transferred to anyone except the owner of the property who is thereby affected.
  3. An easement cannot be transferred apart from dominant heritage.
  4. All interest in property restricted in its employment to the owner personally cannot be transferred by him. Even a right to future maintenance, in whatever manner arising, secured or determined cannot be transferred.
  5. A mere right to sue cannot be transferred.
  6. A public officer cannot be transferred nor his salary, whether before or after it becomes payable.
  7. The stipends allowed to the military of the naval, air force, and government and political pensions cannot be transferred.
  8. No transfer can be made, in so far as it is opposed to the nature of the interest thereby affected or for an unlawful object and consideration under Section 23 of the Indian Contract Act, 1872 or to a person legally qualified to be a transferee.  

                     

Case laws

Sheshammal v. Hasan Khani Rawther

In this case, it was held that an heir who received an advantage for giving up his future right to property, then the heir could not be allowed the benefit of the doctrine of spes succession. 

C. Mohammed v. Ananthachari

In this case, the court held that there cannot be an easement by prescription if the person admits that the property belongs to him. The court defined easement as where an owner of the property has the right over the way of the labs for another purpose which is connected with the beneficial use of his own land. 

Ananthayya v. Subba Rao

In this case, it was held that if there is an agreement between two persons who are brothers by relation, and one of them agreed to pay a certain amount of money from his income to his brother for his expense as he takes care of him then in such cases the provision of a public officer would not apply.

Sethupati v. Chidambaram

In this case, the court held that in the right to sue, the word merely means that the transferee has no interest in the subject matter than just a bare right to sue.

Palani Goudhan v. Nallapa Goundan

In this case, the court held that if an ex-minor transfers his property without the authority of his guardian who has sold the property during his minority then he transfers his interest on the property, not a mere right to sue. 

Conclusion

It can be concluded that under the Transfer of Property Act, the benefits, gains, maintenance, etc are not transferable as these things are personal benefits that the person derives and he cannot transfer his benefit to another person. If he does so that transfer becomes invalid. 

References

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