This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of the article has discussed section 6 of the transfer of property act in detail, analysis of the section, its various sub-sections with the case laws and their implications.
Introduction
Section 6 of the transfer of property act deals with the concept of what may be transferred. Property and interests in property as a general rule are transferable, and it should also be noted that the very transferability of the property is based on the maxim ‘alienation rei prefertur juri accrescendi’, and the meaning of the maxim goes like this– Law favours 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 disfavour 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[1].
Uniform legislation was the need of the hour considering this factor, and this act was drafted to serve the same purpose. Further, transfer of property is defined as an act by which a living person conveys certain property in present or in future, to one or more other living persons, and here living person can be a company or an association or can even be a body of individuals[2]. Meaning of property has also been defined in the said act, and this is done by rather giving a wider spectrum to the word property which includes under its ambit both tangible – which include material things like houses land etc, and certain rights pertaining to property which cannot be exercised over materials, which can be right to a Right to repayment of a debt.
Critical Analysis
This broadsheet aims to provide a differentiation between the different types of property that is transferable property and non-transferable property. And in order to know the difference, it also becomes important to know the link which exists between the transfer of property and section 60 of the Civil Procedure Code. In the first place this article would focus on the provisions of the Act, with close reference to the relevant section of the Code, which would rather be an attempt to understand the property in general along with trying to answer the question of whether a property is transferable, which would be backed by the significant case laws.
Section 6
It specifically speaks about, what may be transferred. Property of any kind may be transferred, except as otherwise provided by this act or even by any other law for time being in force, and these exceptions will be discussed in detail in the following sub-sections.
Sub-Section(a)- Transfer of Spes Succession
The concept of Spes Succession can be explained with the help of an Example– A family consists of father F and son S, F being the owner of the property has the ownership with him during his lifetime and no one else including his son is allowed to sell the property, without his consent. Now, if F dies intestate, s would inherit his property and hence, here it can be said that S is the Heir Apparent. Here S’s succession to the property in the future is a chance due to two main reasons[3].
Firstly, As F is the owner of the property he may sell it, dispose of it in any manner he thinks or make a will in someone’s favour. Eventually, nothing will be left for S.
Secondly, son S dies during the lifetime of his father. Thus, if S during the lifetime of his father transfers the property without his father’s consent then the transfer would be void ab initio and is also expressly prohibited by the act. In the case of Official Assignee, Madras v. Sampath Naidu[4], it was observed by the court that a mortgage executed by an heir apparent is void even if he subsequently acquired the property as an heir. Hence, from above it can be concluded that the transfer of spes succession is void ab initio.
Sub-section (b)- Right of re-entry
The right of re-entry means the right to resume the possession of the land which would have been given to some other person for a certain period of time. And the cases of re-entry are usually seen in the cases of leases, which would empower the lessor to re-enter upon the demised premises if the rent is in arrear for a certain period or if there is a breach of covenants in the lease.
Re Davis and Company[5], 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 instalments on time, and in case A fails to pay the instalments B would enter A’s premise and take the 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
An easement can be quoted as a right which the owner or the occupier of certain land has in his possession for the beneficial enjoyment of the said land, or it may even be to do, or to continue to do something or to prevent something from being done. This very concept of easement includes under its ambit an important principle of ‘profits a pendre’, which actually means– A right to enjoy the benefits arising out of the land[6].
Example: Where A as an owner has the right of way over the way of the land of another for purposes which are connected with the beneficial use of his own land then, this can be termed as an easement[7]. Similarly, in the case of Ganesh Prakash v. Khandu Baksh[8], it was held that the right to dry clothes over the flat masonry and roofs of shops is a right of easement.
It should also be noted that an easement cannot be transferred apart from the dominant heritage to which by the nature of the right it is attached, and this was held in the case of Sital v. Delanney[9].
Sub-section (d)- Restricted Interests
This clause states that a person cannot transfer anything which is interest restricted in its enjoyment to him. For example- Two brothers partition a property among themselves and in addition give a right of pre-emption, which means one of them if at all wants to sell the property should first offer it to the other brother, who would be preferential in buying it. Here it should be known that these rights are personal rights and cannot be transferred. And if any such transfers take place such a transfer would be considered void. In the case of Shoilojanund v. Peary Charon[10], it was held that a right to receive voluntary and uncertain offerings at worship are interest restricted to personal enjoyment and hence, cannot be transferred.
The following kinds of interest can be held non-transferable:
- Services Tenure
- Religious Office
- A right of Pre-emption
- Emoluments which are attached to the priestly office. But it should, however, be noted that the right to receive offerings which are made at a temple is independent of on obligation to perform services which would involve qualifications of personal nature, and such rights are transferable.
Sub-section (dd)- Right to Future Maintenance
The sub-section of maintenance, it has been established that a right to future maintenance is solely for the personal benefit of the person to whom it has been granted and therefore, this very right cannot be transferred further. Thus an example can be quoted here regarding the rights of a woman to either receive maintenance from her husband under a decree or award of the court[11]. Or to receive a share from the property on the demise of the husband or under a will is a personal right. This right can neither be transferred nor can it be attached by a court’s decree. And this was held in the case of Dhupnath v. Ramacharit[12].
Sub-Section(e)- Mere right to sue
It was in the landmark case of Sethupathi v. Chidambaram[13], where it was held that a mere right to sue is something which cannot be transferred. Here the word ‘mere’ itself means that the transferee has developed no interest than just a bare right to sue.
For Example- A contracts to buy goods from B On due date A fails to take delivery and B sells the goods in the market at a loss of Rs.10000. B transfers the right to recover the damages to C. The transfer is invalid[14].
Sub-section (f)- Public office
It should be noted in the first place that a public officer cannot be transferred. In the same fashion, even the salary of the police officer cannot be transferred whether before or after it becomes payable. The word public officer is meant to be someone who has been appointed to discharge a public duty, and in turn, receive a monetary return of it which is in the form of the salary. Here, as the salary becomes something which is given on return of the personal service of a person, it can neither be transferred or attachable.
In the case of Ananthayya v. Subba Rao[15], it was held that where there is an agreement between two people and according to which a person agreed to pay a certain proportion of his income to his brother in consideration of his having been maintained by the latter, now in such cases this provision will not be applicable, which was held by the court.
Sub-section (g)- Pensions
Pension is like a salary, it is a sum of money periodically payable by the government which can be to an ex-serviceman or to a person who has ceased to be in employment. In the case of Saundariya Bai v. Union of India[16] it was held that pension is non-transferable, so long as it is unpaid and in the hands of the government. Another important aspect which should be taken into consideration is that pension is different from bonus and rewards, and also, on the contrary, these are transferable.
Sub-section (h)- Nature of interest
No transfer can be made insofar as it is opposed to the nature of the interest affected thereby. Thus, the things which are dedicated to public or religion uses or service inam, cannot be transferred.
Transfer for Unlawful object or Consideration – Any transfer which is for an unlawful object or consideration is not permissible under this section. And it is also in consonance with section 23 of the Indian Contract Act, which provides that consideration or object is unlawful if
- Is Fraudulent
- It is opposed to public policy
- It is forbidden by law.
- Is of such a nature that it defeats the provisions of any law.
Transfer of Person Legally Disqualified– A transfer to a person to be legally disqualified to be a transferee is not permitted. Under section 7 of the said act, the transferee is required to be competent to the contract and also should not have been disqualified legally.
Sub-section (i)- Statutory prohibitions on the transfer of Interest
This section makes it clear that a tenant having an un-transferable right of occupancy cannot in any way transfer his interest, and this was held in the case of Shanti Prasad v. Bachchi Devi [17]. But at the same time, this clause even contains an exception to the general rule which says that all tenancies or leaseholds are transferable. It gives effect to different enactments whereby it says certain categories of leasehold interests or tenancies are made non-transferrable[18]. 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.
Conclusion
Lastly, it can be said that the following research paper dealt with the topic of section 6 of property act in detail with the addition of case laws in order to explain the different clauses involved in the sections. In addition to this, there were even illustrations and examples given, which in fact make it for the better understanding of the numerous clauses involved and connected with section 6 of Transfer of Property Act. In the legal arena, it becomes of paramount importance for the parties and the lawyers to have a detailed understanding of these above-discussed clauses and provisions. And finally, the paper has even attempted to touch the area of the clause which had certain significant exceptions.
References
[1] Rukhman Singh, Properties and Rights which cannot be transferable under the Transfer of Property Act, 1882, ( Aug 4th 2017) http://www.legalservicesindia.com/article/2471/Properties-and-Rights-which-cannot-be-transferable-under-the-Transfer-of-Property-Act,-1882.html.
[2] Amrit Mishra, Property of ‘any kind’ may be transferred, law teacher the law essay professionals, (Fri, 02 Feb 2018) https://www.lawteacher.net/free-law-essays/land-law/property-of-any-kind-law-essays.php.
[3] Samsuddin v. Abdul Husein, (1906) 31 Bom 165.
[4] Official Assignee, Madras v. Sampath Naidu, AIR 1933 Mad. 795.
[5] Re Davis and Company, 22 QBD 194.
[6] Om kukerjeya, Property of any kind may be Transferred, Academia (18th Sept 2016), https://www.academia.edu/27930118/Property_of_any_kind_may_be_transferred-_Critically_examine.
[7] Mohammed v. Ananthachari, AIR 1988 Ker 298.
[8] Ganesh Prakash v. Khandu Baskh, AIR 1918 Oudh 296.
[9] Sital v. Delanney, (1916) 20 Cal WN 1158, 34 IC 450.
[10] Shoilojanund v. Peary Charon, (1902) ILR29 Cal 470.
[11] Dr Poonam Pradhan Saxena, Property Law 67-81, (2d ed. 2012).
[12] Dhupnath v. Ramacharit, AIR 1832 All 662; Kamalchunder v. Sushila Bala, AIR 1938 Cal 405.
[13] Sethupathi v. Chidambaram, AIR 1938 PC 126.
[14] John Sprankling, Understanding Property Law 109-120, (3d ed. 2000).
[15] Ananthayya v. Subba Rao, AIR 1960 Mad 188.
[16] Saundariya Bai v. Union of India, AIR 2008 MP 227.
[17] Shanti Prasad v. Bachchi Devi, AIR 1948 Oudh 349.
[18] Anne Rodell, Clare Harris, Property Law and Practice 120-129, (3d ed 2009).
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