What Property May Be Transferred

Property Law Project

Submitted To:- Submitted By:-

Dr. Dinesh Kumar Harsh Dixit

B.A. LL.B (Hons.), SF, 3rd Semester

Roll No: 23
 Acknowledgment
It is not possible to prepare a project report without the assistance and encouragement of other
people. This one is certainly no exception. On the very outset of this project I would like to
extend my sincere and heartfelt obligation towards all the personages who helped me in this
endeavor.

I would like to express my special thanks of gratitude to Dr. Dinesh Kumar who gave me the
golden opportunity to work on this wonderful project ‘What Property May Be Transferred’. It
helped me in doing a lot of research through which I came to know about so many new and
important things.

I would also like to thank my parents for their moral and financial support for this project.
 Contents
1) Introduction
2) What Property May Be Transferred
3) Property non-transferrable under any other law
4) Property non-transferrable under section 6
 Clause(a): Spes-Successionis
 Clause(b): Mere Right of Re-entry
 Clause(c): Easement Apart From Dominant Heritage
 Clause(d): Restricted Interest
 Clause(dd): Right To Future Maintenance
 Clause(e): Mere Right To Sue
 Clause(f): Public Office & Salary of Public Officer
 Clause(g): Pensions and Stipends
 Clause(h): Transfer Opposed To Nature of Interest
 Clause(i): Untransferrable Right of Occupancy
5) Conclusion
Introduction:-

“Transfer of property” as defined in section 5 of the Transfer of Property Act means an act by
which a living person conveys property either in present or in future to one or more other living
persons, or to himself, or to himself and one or more other living persons. It is an activity or a
process; it cannot be transferred automatically without transferors ‘act’ unlike wills or
inheritance.

The person who makes the transfer is called the transferor and the person to whom the transfer is
made is called transferee. Both the transferor and the transferee must be living persons and can
be either a human or a juristic person like companies, firms, universities, etc. The transferor must
be competent i.e. of the age of majority, of sound mind and not otherwise disqualified to transfer
a property whereas a transferee need to be competent he need not a capacity, he may be minor,
insane or even a child in a mother’s womb. But the transferee must be in existence when the
transfer is being made.

In Sunil Sidhartbhai V. Commissioner of Income tax 1 the Supreme Court rightly observed
that in general, transfer of property means passing of a right in property from one person to
another. In one case there may be passing of entire bundle of rights i.e. ownership and in another
case there may transfer of only some of such rights i.e. partial interests.

For example, if A makes a gift of his house to B, there is a transfer of absolute interest of the
house and if A transfers the right of enjoyment of his house to B for a certain period it is called
‘lease’ and it is a transfer of only partial interest of house to B but both the cases are a transfer of
property.

In a transfer of property the transferor conveys the property; his conveying is doing the ‘act’
which is called transfer. Conveyance means any act of the transferor by which certain new titles
or interests are created in favor of the transferee.

However, a mere agreement to sell does not have the effect of conveying and does not operate as
a transfer of property. Similarly, delivery of possession accompanied by an agreement of sale

1
AIR 1986 SC 368.
does not amount to transfer of and interest in the property.2 A transfer can be affected only by a
registered sale deed and not merely by an agreement to sell general power of attorney or will.3

The word ‘property’ has been used here in a comprehensive sense. It has a very wide meaning
and includes properties of all descriptions. It includes movable properties like cars or chairs, it
includes immovable properties like lands or houses, it also includes intangible properties such as
right to catch fish or an actionable claim or other beneficial interests in a property.

A transfer of property under section 5 of the act requires two living persons; the transferor and
the transferee. One cannot transfer a property to himself but one can transfer a property to
himself in some other capacity like when a person makes any settlement of his property in a
trust and appoints himself as the sole trustee.

Transfer of property as contemplated under this Act carries the same meaning throughout this
enactment as it has been defined in Section 5.

In order to constitute a valid transfer of property, following essential conditions must be fulfilled:

1. The property must be transferable property.

2. The object or consideration of the transfer must be lawful.
3. Transferor must be competent.
4. Necessary formalities prescribed by law for the transfer must also be completed.

2
Majidan V. Ilahi Baksh, AIR 2008 NOC 1135.
3
Suraj Lamp & Industries (p.) Ltd. V. State of Haryana, AIR 2012 SC 206.
What property may be transferred:-

For a transfer of property to be valid, the property must be a transferable property. As a general
rule, property of every kind may be transferred. But, there are certain kinds of properties which
are not allowed to be transferred under the law and are known as non-transferable properties.
Transfer of any non-transferable property is void. Therefore, transferability of property is a
general rule while its non-transferability is an exception and these exceptions are given in section
6 of Transfer of Property Act, 1882.4

Transferability of property is based on the maxim alienation rei praefertur juri accrescendi which
means to say that alienation is favored by the law rather than accumulation. The general policy
of law is to promote free alienation and circulation of property rather than accumulation of it.

According to section 6 of the Transfer of Property Act, 1882, property of any kind may be
transferred except:

 Properties which cannot be transferred by any law, for the time being, in force in India.
 Properties which cannot be transferred otherwise as given under clauses (a) to (i) of
section 6 of this act.

Properties non-transferable under any other law:-

The properties which are prohibited to be transferred under laws like Hindu law, Muslim law, the
Civil Procedure Code etc. enforced in India are also non-transferable under Section 6 of the
Transfer of Property Act. 1882. It means that Section 6 of this act recognizes the non-
transferability of any property under other laws in force in India also.

For example, under Hindu law coparcenary property is regarded as non-transferable and there is
restriction on the transfer of such property. Similarly, a property dedicated to God, being of
religious use, is also non-transferable under the Hindu law.

4
Dr. R.K. Sinha, The Transfer of Property Act 61 (Central Law Agency, Allahabad, 12th edn., 2019).
Under Muslim law, Waqf – properties and the office of mutawalli etc. have been regarded as
properties which cannot be transferred.

Section 60 of the Civil Procedure Code, prohibits the attachment of necessary cooking-vessels
and the tools of artisans etc. It is analogous to section 6 of the Transfer of Property Act, 1882 and
prohibits the attachment of certain properties given in this section. Moreover, transfer of
agricultural tenancies have been prohibited under certain local enactments and local customs.

Properties non-transferable under Section 6:-

Section 6 lays down ten kinds of specific properties or interests which cannot be transferred.
These non-transferable properties are given in the following clauses:5

1) Clause (a): Spes-Successionis – It means expectation of succession. Expectation of

succession is expecting or having a chance of getting a property through succession i.e.
inheritance or will. Therefore spes-successionis is not any present property but merely a
possibility of getting a property in future.
Under this clause it includes –
 Chance of an heir-apparent succeeding to an estate – Heir-apparent is apparently
an heir but not legal heir. It means a person would be heir in future if he survives
the deceased whose property he inherits and who dies intestate i.e. without
making any will.
For example during the life of a father, his son cannot be called as his heir; he is
simply heir-apparent of his father. A son would only get the property of his father
if he survives his father and his father has died without making any will. If a son
survives his father but his father has made a will under which the property is to
be given to another person and not his heir, then in this case he won’t get the
property.
 Chance of a relation obtaining a legacy on the death of a kinsman – Chance of a
legacy means expectancy of getting certain property under a will. The will

5
Dr. Avtar Singh, Transfer of property Act 34 (Universal Law Publishing Co., New Delhi, 6th edn., 2018).
 operates only after the death of the testator not on the date when it is written and
if two or more wills have been executed in favor of different persons then the last
will would prevail.
Accordingly when a person executes any will then before the death of the
testator, the legatee has simply a chance of getting a property on fulfillment of
the above mentioned conditions.
 Any other mere possibility of a like nature – It would mean any other possible
interest or property which is as uncertain as the chances of heir-apparent or
chance of a relation of getting property under a will. The central idea here is that
any property which is merely a future certain possible interest should not be
made a transferable property.
2) Clause (b): Mere Right of Re-entry – Right of re-entry means right to resume
possession. When a person gives the possession of his property to another for a certain
period and is afterwards entitled to get it back, this right is called his right of re-entry.
Under this clause, the right of re-entry refers to the right of a lessor or landlord to resume
possession of the property from the lessee or tenant upon the breach of subsequent
condition.
The right of re-entry apart from or without any interest in land is simply a personal
license and since personal license cannot be transferred under the law, section 6 prohibits
‘mere’ right of re-entry from being transferrable.
The right of re-entry couples with any other interest in the land is transferrable together
with that interest. Thus where the land itself is transferred or lessee has been given a
permanent lease, the right of re-entry is automatically transferred to the transferee of land
or the lessee, as the case may be.
For example ‘A’ leased his land to ‘B’ for three years with an express condition that ‘B’
shall not dig any well on the said land. ‘B’ digs a well and ‘A’ asks ‘C’ to take possession
of the land from ‘B’ i.e. he transfers his right of re-entry upon the breach of condition by
‘B’. C cannot take possession from B because A has transferred to him mere right of re-
entry.
3) Clause (c): Easement apart from Dominant Heritage – Easement is a right which
exists for the beneficial enjoyment of land and is exercised upon the land of another
 person. The land for whose beneficial enjoyment this right exists is called dominant
heritage and the land upon which the right is exercised is called servient heritage.
For example, A who is the owner of a house has a right of way upon the land owned by B
so that he may reach the main road. A’s house is dominant heritage and the land of B is
servient heritage. A’s right of way is easement right.
Although this right is exercised by A but it exists for beneficial enjoyment of A’s house
and therefore it is a right attached to the house not A’s personal right. Since this right is a
part of the house i.e. dominant heritage, it cannot be severed or detached from it. In other
words, an easement cannot exist independently of the dominant heritage and therefore its
separate transfer is prohibited.
In Ganesh Prakash V. Khandu Baksh, 6it was held that the right to dry clothes over the
flat masonry and roofs of shops is a right of easement. According to Section 6 easement
cannot be transferred apart from the dominant heritage but when the dominant heritage
itself is transferred, the easementary right attached to it is transferred together.
4) Clause (d): Restricted Interest – Under this clause an interest in property restricted in
its enjoyment to the owner personally has been made non-transferable. Beneficial
interests or an interest by virtue of which a person derives certain benefit is the property
of that person but he cannot transfer it as it is restricted to his own enjoyment.
Such interests are created in favor of a person only due to his personal qualifications and
are purely personal in nature and may be called personal rights which are non-
transferrable
For example a teacher’s right to teach is his beneficial interest but this right is given to
him only because of his personal qualifications. Although it is his beneficial interest, he
cannot transfer it because only he, on the basis of his qualifications; has been given this
right.
Religious offices such as the office of Pujari who performs religious services in a temple
or Mutawalli of a Wakf are all restricted interests because these offices are held by the
persons concerned only on the ground of their personal qualifications.7

6
AIR 1918 Oudh 296.
7
Nagendra V. Rabindra, AIR 1926 Cal. 490.
 Interests may be restricted also in cases where the property is given to a person for use
for some specific purpose and hence cannot be transferred to any other person for other
purpose. For example A gives possession of his house to B for a week for his daughter’s
marriage. B transfers its possession to C and performs the marriage in a hotel. The
transfer of possession of the house by B to C is invalid because B’s interest in house was
for some specific purpose only.
5) Clause (dd): Right to Future Maintenance – When a person is entitled to receive
maintenance allowance then it is his personal right because it is given or is promised to
be given in future solely for his own benefit. As such, the right to future maintenance is a
restricted interest which is non-transferable. Although the right of maintenance is not
transferable, the arrears of maintenance can be transferred. The assignment of the decree
for maintenance which has already occurred due shall be a valid assignment because
arrears became debt and as such, can be attached or sold.8
6) Clause (e): Mere Right to Sue – Right to sue for certain sum of money is actionable
claim which is a claim for certain amount of money and can be transferred. But right to
sue for uncertain or indefinite sum of money is not transferable. Under this section mere
right to sue means right to sue for the claim of any uncertain sum of money and it arises
where the claim is for unliquidated damages either in tort or in contract or where the
claim is for any amount which is not fixed.
In Sethupathi V. Chidambaram9, 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 defames B and under law of tort B has a right to claim damages from A.
B thinks that he must sue A for 50,000 but instead of filing the suit himself B assigns the
right to C. C sues A for 50,000. This assignment of right to sue by B to C is invalid.
Claim for mesne profits is also a claim for an indefinite sum of money like damages;
therefore mere right to claim mesne profits is non-transferable under section 6. Mesne
profits means profits or produce from a property which is in the unlawful or adverse
possession of a person who is not entitled to possess it.

8
Dr. Avtar Singh, The Transfer of Property Act 38 (Universal Law Publishing Co., New Delhi, 6th edn., 2018).
9
AIR 1938 PC 126.
 For example A is the owner of the land which B occupies illegally. A files a suit to get
back his land, after two years of litigation the court decides in favor of A. But during
unlawful possession B has already enjoyed the profits of the land. A is entitled to claim
the mesne profits for period of unlawful possession. B assigns this right to C, this
assignment is invalid.
7) Clause (f): Public Office & Salary of Public Officer – Under this clause there is
prohibition on transfer of a public office and the salaries of public officers. The reason is
to ensure the dignity to the office held by a person appointed for qualities personal to him
and getting salary for due discharge of his public duties.
In Ananthayya V. Subba Rao10, a younger brother agreed to pay a certain part of his
earnings to his elder brother in consideration of the latter providing him maintenance and
education in the past. The Madras HC held that this agreement was not hit by clause (f) as
the amount agreed could be paid from any other source.
The prohibition under this clause is regarding direct transfer of salary i.e. transferring
from its source but once the salary comes into the hands of a public servant, it becomes
his property and is not subject to any restriction on its disposal.
8) Clause (g): Pensions and Stipends – The pensions or stipends etc. of the government
servants whether civil or military, are non-transferable on the same principle on which
the salaries of public servants are not transferable under the preceding clause.
They are given to persons concerned only because of his past services or personal merits,
therefore, these interests are personal to the recipient. Transferability of such interests
would defeat the very purpose for which these interests exist.
In Saundariya Bai V. UOI11, it was held that pension is non-transferable, so long as it is
unpaid and in the hands of the government.
9) Clause (h): Transfer opposed to Nature of Interest etc. – This clause provide certain
kinds of interests which are non-transferable. It does not deal with any kind of non-
transferable interest but with the prohibition in transfer of property under certain
situations. Clause (h) provides that no transfer can be made in the following cases:

10
AIR 1960 Mad. 188.
11
(1932) Oudh 79.
 Transfer opposed to nature of interest – There are certain properties which by
their very nature can neither be owned nor transferred. Like air, water, space etc.
such properties are called res communes i.e. property of the whole community of
the world. Nature gives the right to use them to every individual so their transfer
would be opposed to nature of these properties.
Properties dedicated for religious or public use come under this category.
Debutter property, for example, is non-transferable as being dedicated to
religious use only.
 Transfer Where its object or consideration is unlawful – Any property which is
otherwise transferable shall became non-transferable if the object or
consideration of the transfer is unlawful within the meaning of section 23 of
Indian Contract Act, 1872.
Under this sub-clause the object or consideration of a transfer of property is
unlawful in the following situations:
a) It is forbidden by law - Sale of liquor without license is forbidden without
a valid license under Exercise Act. Therefore any such sale would be void
being forbidden by law.
b) It is of such nature that if permitted it would defeat the provision of any
law - Where the object of a transfer is to defeat or negative the effect of
any provision of law, it is unlawful.
c) It is fraudulent - Transfer of property with the only object to play fraud on
the interests of a person would be a fraudulent transfer. Like when a
debtor transfers his properties so that the creditor may not recover his
loan from his properties the transfer would for an unlawful object.
d) It involves injury to a person or property of the other – When a property is
transferred in order to cause injury to a person or his property, the transfer
is for an unlawful object. For example A gives to B Rs. 1000 to assault
and murder C or to destroy his property by burning his house, the transfer
of Rs. 1000 is unlawful.
e) It is immoral or opposed to public policy – Lease of a house for gambling
den or as a brothel is void if the lessor has knowledge that it is to be used
 for such immoral purpose. Transfer of property to a husband so that he
must divorce his wife is with an unlawful object.
Property transferred as consideration for withdrawal of a prosecution or
money or property given to an official as bribe is illegal being oppose
to public policy.12
 Transfer made to a disqualified transferee – The transferee must not be legally
disqualified to be a transferee. Under section 136 of this act, judges, legal
practitioners or officers connected with nay court of justice are incompetent
transferee in any dealings of actionable claims to secure and maintain impartiality
of judiciary.
10) Clause (i): Untransferable Right of Occupancy – As general rule occupancy rights or
the lease hold properties are transferable interests. But this clause makes an exception to
this general rule. Under this clause a tenant having untransferable right of occupancy
cannot transfer his right to another person. Similarly, a farmer of an estate in respect of
which default has been made in paying revenue is not authorized to assign his interest in
the agricultural holding. Relinquishment of the agricultural holding is a transfer;
therefore, it is not valid under this clause.13
This clause was added to section 6 in 1885 in order to remove doubts regarding the non-
transferability of occupancy rights in the agricultural lands. Occupancy rights of the
agricultural lands have been declared to be non-transferable interests also in various
tenancy land laws enforced in India.
When India became independent, the sates of this country enacted their own land laws to
regulate their respective agriculture lands etc. therefore this clause has now become
almost irrelevant.

12
Dr. R.K. Sinha, The Transfer of Property Act 76 (Central Law Agency, Allahabad, 12th edn., 2019).
13
Amar Nath Singh V. Har Prasad Singh, (1932) Oudh 79.
Conclusion:-

The following project dealt with the topic of section 6 of the Transfer of Property Act, 1882 in
detail with the addition of case laws in order to explain the different clauses involved in section.
In addition to this, there were even illustrations and examples given, which in fact make it for the
better understanding of the topic.

.
 Bibliography
 Dr. R.K. Sinha, Transfer of Property Act (Central Law Agency, Allahabad, 10th edn.,
2019).
 Dr. Avtar Singh, Transfer of Property Act (Universal Law Publishing Co., New Delhi, 6th
edn., 2018).
 Sunil Sidhartbhai V. Commissioner of Income tax, AIR 1986 SC 368.
 Ganesh Prakash V. Khandu Baksh, AIR 1918 Oudh 296.
 Sethupathi V. Chidambaram, AIR 1938 PC 126.
 Ananthayya V. Subba Rao, AIR 1960 Mad. 188.
 Saundariya Bai V. UOI, (1932) Oudh 79.