ALIGARH MUSLIM UNIVERSITY

FACULTY OF LAW

Transfer of Property Act project

TOPIC: Sec 6 WHAT MAY BE TRANSFERRED

Submitted By: -

Name : HANZALA AHMED

th
Class : BALLB 4 Year Sec-B (7 Semester)

Faculty No : 17BALLB067

Enrolment No :GI1836

Submitted To: -
“Dr. Tabassum Chaudhry

Department of law
 SYNOPSIS
I. Introduction
II. Transferability of property
III. Non Tranferablity under any other law
IV. Section 6:
• Clause a- Spes- successionis
• Clasue 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 officer and salary of public officer
• Clause g- Pensions and stipends
• Clause h- Transfer opposed to nature of interests
• Clause i- Statutory prohibitions on the transfer of Interest
V. Conclusion
VI. Bibliograhy
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 country1.

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
individuals2. 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.

Transferability of property
For a valid transfer of property, the property must be transferable property. As a general rule,
property of every kind must be transferable. But there are certain kind of properties the
transfer of which is not allowed under the law. Such properties are called non-transferable
properties. Transferability of property is a general rule its non-transferability is exception.
Exceptions to the general rule that property of every kind may be transferred are given in
section 6 of the Transfer of Property Act. According to section 6 the property of any kind
may be transferred except:

a). properties which cannot be transferred by any law, for the time being , in force in India.

1
HN Sinha, Transfer of Property Act, (2018), Central Law Agency
2
https://blog.ipleaders.in/transfer-of-property-act-section-6/amp/ Visited on 12/10/2020 at.4.30.pm.
3 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.
b). the properties which cannot be transferred otherwise as given in this act.
Under section 6 of this Act, non-transferable properties have been divided in to two
categories. Firstly, the properties which cannot be transferred under any law enforced in
India. Secondly, the properties which have been mentioned specifically under clause (a) to (i)
of section 6 of transfer of property Act.

Non transferability under other Law3

Besides the Transfer of Property Act, there are other laws such as Hindu law, Muslim law,
and CPC, etc. which are enforced in India. If under any such law there are certain properties
the transfer of which is prohibited by law, those properties are non-transferable under section
6. For example, under Hindu law coparcenary property is regarded as non-transferable and
there is restriction on the transfer of such property.
Similarly, under Muslim law, Waqf properties, office of the Mutawalli, etc. have been
regarded as properties which cannot be transferred.

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

Spes successionis means expectation of succession. Expecting of succession is expecting or
having a chance of getting property through succession. Spes successionis is, therefore, not
any present property. It is merely a possibility of getting certain property in future.

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 reasons4.

3
HN Sinha, Transfer of Property Act, (2018), Central Law Agency
4
. Samsuddin v. Abdul Husein, (1906) 31 Bom 165
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.

Official Assignee, Madras v. Sampath Naidu5

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

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 void6.

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

5
Official Assignee, Madras v. Sampath Naidu, AIR 1933 Mad. 795
6
Re Davis and Company, 22 QBD 194
easement includes under its ambit an important principle of ‘profits as pendre’, which
actually means– A right to enjoy the benefits arising out of the land7.

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 easement8.

Sital v. Delanney.
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 attached9.

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.

The following kinds of interest can be held non-transferable:

1. Services Tenure
2. Religious Office
3. A right of Pre-emption
4. 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.

7
https://www.academia.edu/27930118/Property_of_any_kind_may_be_transferred-_Critically_examine.
8
Mohammed v. Ananthachari, AIR 1988 Ker 298
9
Ganesh Prakash v. Khandu Baskh, AIR 1918 Oudh 296.
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 court10. 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.

Sub-Section(e)- Mere right to sue

It was in the landmark case of Sethupathi v. Chidambaram11

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 invalid12.

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 Rao13 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

10
https://blog.ipleaders.in/transfer-of-property-act-section-6/amp/ visited on 12/10/20 at 5.00 pm
11
Sethupathi v. Chidambaram, AIR 1938 PC 126.
12
IBID
13
Ananthayya v. Subba Rao, AIR 1960 Mad 188 .
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 India14 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

1. Is Fraudulent
2. It is opposed to public policy
3. It is forbidden by law.
4. Is of such a nature that it defeats the provisions of any law.

14
Sethupathi v. Chidambaram, AIR 1938 PC 126
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
Devi15.

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. 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.

15
Ananthayya v. Subba Rao, AIR 1960 Mad 188
Bibliography
a) Dr. R.K. Sinha, Transfer of property Act, Central Law
Agency, 2019
b) https://blog.ipleaders.in/transfer-of-property-act-section-6/
c) http://www.legalservicesindia.com/article/2471/Properties-and-
Rights-which-cannot-be-transferable-under-the-Transfer-of-
Property-Act,-1882.html
d) https://www.lawteacher.net/free-law-essays/land-law/property-of-
any-kind-law-essays.php