This article on ‘Analysis of the transfers made under Transfer of Property Act, 1882’ has been written by Nishant Vimal, a 3rd-year student of Symbiosis Law School, Hyderabad. The author has discussed on analyzing what may be transferred under Transfer of Property Act, 1882.
Transfer of Property is something that every individual witnesses. The definition of Transfer of Property is given under Section 5 of the Transfer of Property Act, 1882 which states it ‘as a conveyance of a property from a living person that might be a company, group of individuals etc.’ It can be done in either present or in future and to another living person or to himself or to both. Property can be of two types that is tangible or intangible and tangible property consists of two subdivisions by the name of movable and immovable property. Transfer of property act governs all transfers relating to any immovable property. Every Person has witnessed a transfer of property, whether it is a small property like chocolate or a big deal involving the sale of land.
Detailed analysis of the provisions governing what may be transferred
Section 6 of the Transfer of Property Act, 1882 talks about what may be transferred. This sections lays down a list of all items and one can transfer anything apart from this. This is present in sub-clauses of this section.
So starting with sub-clause (a) which lays down any property which may get vested in an heir who is to succeed and inherit the property. In other words this is called ‘spes succession’. For example, A is the son of B, and he has a chance of acquiring the property of B. If A goes and professes to transfer B’s property, it is prohibited by Section 6 as only a property that one has the ownership over can be transferred.
It also prohibits any person who may inherit the property after the death of a kinsman. This is when a person living alone who does not have any close relative, lives in his home with a servant. The servant can expect that he is to get the owner’s property, but he cannot transfer it yet or profess to transfer it as he does not have the ownership yet.
Also any possibility of like nature where a person may get the property in future. This section bars any transfer of a property which is not owned by the person transferring it or professing to transfer it.
The sub-clause (b) prohibits the right to re-enter into a property which was earlier owned by a person. This right of re-entry is reserved by the transferor in case of any breach of condition. The previous owner cannot transfer his right to re-enter in case the occupant of the property breaches any condition mentioned in the contract. This right is usually vested when there has been a lease as the lessor will have the right to re-enter the premises of the property in case of a rent arrears or etc.
This was illustrated in the case of Re Davis & Co, ex-pane rawlings (1), where goods were delivered to the premises and the bailor was given the right to enter the land to collect those goods in case of a default in payment of an instalment. He transferred his right to one of his creditors and this was invalidated by the court.
For example, if A had a right to re- enter the property ‘X’ is B, the occupant, creates a well in the property. If B builds a well, A has a right to enter the property but Section 6 prohibits that he cannot transfer this right to C to go and stop B from constructing a well.
Sub-clause (c) prohibits the right of easement to be transferred. Easement is the enjoyment of another’s property in order to enjoy one’s own property i.e. when a person acquires the land of his neighbour to enjoy access the main road from his property. This right is only transferred when the property as a whole is transferred as easement is a legal incident and hence not independently. This section only talks about the transfer of an already existing right of easement and not one that is granted as it is not governed by the Transfer of Property Act, but is instead governed by the Indian Easement Act.
Sub-clause (d) states that an interest restricted in its enjoyment of him like salary, benefits ,etc. A transfer of such interest is therefore prohibited by this section unless the condition or restriction is held void as per Section 10 of the Transfer of property act that states that any absolute restriction that hinders the right of the transferee is void.
In the case of Sitarambhat v. Sitaram (2), the then Chief Justice of India opined that in cases of a custom being followed in a family that a religious office is not be alienated, this rule shall not apply.
There are other exceptions where this rule does not apply:
- A religious office
- A right of pre-emption.
- Service tenures.
Sub-clause (dd) mentions about future maintenance. It says that if one person is required to maintain another, this obligation to pay maintenance in the future cannot be transferred to anyone else. The judgement from the Calcutta High Court in the case of Asad Ali v. Haider Ali (3), where it was held that Right of future maintenance is not transferable. Section 60 of the Civil Procedure Code can be used to corroborate this which states that future maintenance cannot be attached as it is a personal right.
Sub-clause (e) states that a mere right to sue cannot be transferred to anyone except who actually has the right to sue which means against whom the wrong has happened only that person can sue.
Although any right of recovering damages and compensation is valid and is not prohibited by this section. This was also held in the case of Murlidhar Agarwalla v. Rupendra Methere (4).
For example, if A has been the victim of trespass by B. A cannot transfer his right to sue and require C to initiate a suit against B.
Sub-clause (f) states that any person holding a public office or salary like any judge, police inspector, etc., cannot transfer his public office and salary to anyone else. The definition of a public officer is not given in The Transfer of Property Act but it can be understood by the definition given in the Civil Procedure Code.
This section was exercised in the case of Liverpool Corporation v. Wright (5), where it was said that the purpose of salary is to respect the person or the receiver for his duties, work and his performance, therefore it should not be transferred.
But any amount given to maintain anyone or given to a relative like in the case of Ananthayya v. Subba Rao (6), it was held that this provision does not invalidate any portion of income paid to any relative as here, the person agreed to transfer a portion of his income for the education of his brother and to maintain him. The court answered in the affirmative.
Sub-clause (g) states that any stipend or pensions that are given to the Military, Naval, Air forces, government pensions, etc., cannot be transferred to anyone apart from the person getting it as it is a personal right. These are also exempted from being attached as per section 60 (g) of the Civil Procedure Code, 1908.
In the case of Secretary of State v. Khemchand Jeychand (7), that the purpose and meaning of pensions was to compensate the persons not for any duties but for their prior engagements and services to them. This is a periodical payment that is given to the families of people who have left the office.
Sub clause (h) prohibits any transfer of property which may be:
- Affect the interests of nature,
Res communes and Res extra commercium which means any items which cannot be owned and transferred. For example, air, water, light and etc. These cannot be transferred. Any transfer of a standing crop, however, will be valid as seen in the case of Chevendra Venkata Kutumba Rao v. Govardhan (8), where it was said that it falls within the criteria. Items like maintenance and pensions which is mentioned in Sections 6 (dd) and (g).
- Is based on an unlawful consideration,
As mentioned in Section 23 of the Indian Contract Act, any contract needs to have a valid, lawful consideration and a transfer of property needs to have these requirements fulfilled as well.
As there is a concept of partly lawful in Contracts in Section 24, there is no express provision for it in Transfer of Property Act, but in the case of Bajranji Lal v. Ghura Rai (9), where a transfer of an inalienable land and a zamindari land was held as a valid transfer as the whole property was considered as a zamindari land.
- One of the parties is incompetent to transfer property.
Any party to the transfer of property should be competent to transfer which means that the person should be of sound mind, major and should not be prohibited by law. Also, the person needs to be alive on the date of transfer of property. Persons who are legally disqualified are also no competent to transfer. Legal disqualifications are that any public officer is exempted from performing any duty in the sale of any property and a judge, a legal practitioner is barred from purchasing an actionable claim.
Although, minors in some cases have been allowed to become a transferee like in the case of Munni Kunwar v. Madan Gopal (10).
Sub-clause (i) restricts certain individuals who don’t have absolute interests and have occupied the property for a temporary period of time. Like:
- Tenant who has occupied the property for a period does not have absolute rights over that property and hence cannot alienate or transfer that property.
- Farmer who has not cleared his default on the payment cannot transfer his interests in that property.
- Lessee also is restricted from transferring any property or any interests or rights if the estate is in question in the court of wards.
Property is something that is at the heart of civil laws. Both Civil Procedure Code and Transfer of Property govern it. It is equally important for the lawyers as well as the general public to know about the details of property dealings and transfers. This article explains the provision that governs what properties may be transferred. The reader will be able to extract that this provision is given in a negative nature as it lays down what cannot be transferred and it can be understood that apart from these exceptions, all types of properties may be transferred. It has been illustrated that even if the provisions are apparent on the face of the matter, there is a gaping difference when it comes to the meaning and explanation of Section 6 of the Transfer of Property. The author has tried to convey the substance of this section by stating out different illustrations to help the reader relate it with the concept in support of various judicial pronouncements.
- (1889) 22 QBD 193.
- (1870) 6 Bom HC 250.
- (1910) 38 Cal 13.
- AIR 1953 Cal 321.
- (1859) 28 LJ (Ch) 868.
- (1960) Mad 87.
- (1880) 4 Bom 432.
- AIR 1957 AP 349.
- (1916) 38 All 232.
- (1916) 38 ALL 62.