42 TRANSFER OF PRoPERTy ACT

S. 6
neanerty isvested in a trustee the 'owner must, thcir Lordships
Trusts Act, 1882, the right of the benenciary being in a properthink, Indian
case to call
upon the trustee to convey to him.
The case before the Privy Council was one under the Trusts Act.
vet the
principle that there can be but one owner of a, property equally applies to
cases of transfer under the Transfer of Property Act, 1882. u y applies to

Future interests in property: Reversion and Remainder.-Some interests

in property are future e. 8, "reversions and remainders". A reversion is the
residue of an original es tate, which is left after the grantor has granted a
smaller estate. Thus the interest of a lessor is a reversion, a future estate
pending the termination of a lease. A remainder is an interest
of the original estate at the same time as, but in succession to
granted out
a preceding
interest. Thus if an estate is granted to A for life and then to B, the estate of
B is the remainder and the estate of A is the particular és tate which supports
it. The Act uses the word reversion' in Section 54 and no where else in the
Act. The word 'remainder does not oceur in the Act, but in Section 13 the
phrase 'remaining interest' is used instead. A vested remainder is capable of
being attached and so is a contingent interest.
Can future property be transferred ?-Rule in Holroyed v. Marshall.-In
English Law, the leading case on the subject is Holroyed v. Marshal,31 A, the
owner of certain machinery, transferred it to T to be held in trust for H. The
subject-matter of the transfer was expressed to be certain machinery in the
mill and machinery to be brought in future in addition thereto or in substitu-
tion thereof. New machinery having been added the question arose whether
it could be claimed by H as against an execution ereditor of A. It was added
to the mill and that it would prevail as against the claims of the execution
creditor. Lord Westbury laid down the law as follows I f a vendor or a
mortgagor agrees to sell or mortgage property, real and personal, of which he
is not possessed at the time and he receives the consideration for contract and
afterwards becomes possessed of property answering to the description in the
contract, there is no doubt that the contract would in equity transfer the
beneficial interest to the mortgagee or purchaser immediately on the property
being acquired."
In Tailby v. Oficial Receiver,3 the House of Lords held that
assignment of future book debts passed to the assignee the equitable interest
in debts arising after the assignment. These cases lay down the principle that
in England future property may be transferred for consideration in equity.

In India no equitable estate is recognised. However, in Indian law a

transfer of future property for consideration operates as a contract
to be performed in füture. The contract may be specifi cally enforced as soon
as the
property comes into existence.
S. 6. Whatmay be transferred.-Property of any kind may he transferred,
except as otherwise provided by this Act or by any other law for the time being
in force.
( T h e chance of an heir-apparent succeeding to an estate, the chance
OT a relation obtaining a legacy on the death of a kinsman, or any
other mere possibility of a like nature, cannot be transferred.

31. (1862) 10 HLC1.

32. 13 AC 523.
 PARTIES 43
TRANSFER OF PROPBRTY BY ACr Or
S. 61
condition subsequent cannot
(6) a mere right of re-entry for breach of a
affected
to anyone except the owner of the property
be transferred
thereby.
the dominant
cannot be transferred apart from
(c)An easement
heritage.
restricted in its enjoyment
to the owner pers
(d) An interest in
property
him.
onally cannot be transferred by
arising,
to future maintenance, in whatsoever manner
(dd) A right transferred.
or determined, cannot be
secured
be transferred.
(eA mere right to sue. .cannot of a public
be trànsferred, nor can the salary
(S) A public office cannot become payable.
whether before or after it has
officer,
and civil pensioners of
allowed to military, naval, air force
(g) Stipends cannot be transferred.
the Government and political pensions
so far as it is opposed
to the nature
(h) No transfer can be made (1) in unlawful object or
or (2) for an
of the interest affected thèreby,
consideration within the meaning
of Section 23 of the Indian
disqualified to be a
Contract Act, 1872, or (3) to a person legally
transferee.
authorize a tenant hav-
this section shall be deemed to
() Nothing in of occupancy, the farmer of an estate in
ing an untransferable right
has been made in paying revenue, or the
respect of which default of a Corts of uWards, to
lessee of an estate under the management
farmer or lessee.
assign his interest as such tenant,
of law is to promote
COMMENTS:-General rule.-The general policy
property--alienatio rei praefertur juri accre
free alienation and circulation of law rather than accumulation). The
scendi (alienation is favoured by the the
transferability cf property is, therefore,
general rule, its non-transferability
any kind may
an exception.33 This section accordingly enacts that property of other law
otherwise provided by this Act or by any
be transferred except as
The burden of proof that a particular property
for the time being in force.
alleging it.
is not transferable is on the person
is transferable or not is to
The only test to determine whether a property
see whether such a transfer
is prohibited either by the provisious of this Act or
law. If there is no such prohibition, it is transferable.
by any other provision ofis
Where a transfer, which prohibited by any" of the clauses of this section or
it is a nullity and no equities can arise out of such
by any other law, is made,
a transaction.
Essentials of a valid transfer.-In order to constitute a valid transfer of
under the Act-
property, whether movable or immovable,
the property must be transferable, (Section 6),
(i) the transferor must be competent to transfer, (Section 7),

(ii)the transferee must be competent to take the transfer, (Section 6

h )(h) (3)
33. Raja v. Shamu Nair, AIR 1922
Mad 290
Baijnath Singh v. Chandrupa
Zamorin
Sipgb, AlR 1924 All 795; Yakub Khan v. Mohan Lal, AIR 1932 Lah 518.
 TRANSFPR OP PROPERTY ACT
44 [S. 6
(iv) the consideration or cbject of the transfcr nmust be lawful, [Section
6 (h) (2)]
( the transfer must not be opposcd to the nature of the interest
affected thereby, [Section 6 (h) (1)],

(vi) it must be made in the manner and in the form required by the
Act, if any, (Section 9).
Exception to the rule of transferability.-Clauses (a) to (i) enumerate ten
exceptions where in a property is not transferable.
Spes Successionis--Clause (a).-Clause (a) of Section 6 excluded the
chance of an heir-apparent of succeeding to an estate from the category of
transferable property. The technical expression for such a chance is
'Spes
Successionis".

English Law-During the life time of a person, the chance of his heir
apparent succeeding tc the estate or the chance of a relation obtaining a legacy
under his will is a "spes successionis (chance of succession). Such an expect-
ancy does not amount an interest in property and cannot be made the subject-
matter of a transfer. Stockely v. Parsons 84
In Alcard v. Walker,3" a settlement was effected in respect of certain real
estate which afterward devolved upon the settlor on the intestacy of her father
and in respect of certain personal estate to which the settlor subsequently
became entitled under the will of a testator who was living at the date of the
settlement, Sterling, J. held that he settlement was inoperative as it did not
deal with any disposable property.
In English Law, though expectancy is not regarded as property which
can be assigned, there, is no express prohibition of an assignment of an ex-
pectancy for value and such assignment opera tes as a contract to assign as
soor as the expectancy becomes an interest.
Buckley, J., in Re Ellenborough,36
stated: I f value be given, it is immaterial what is the form
of assurance by
which the disposition is made or whether the subject of the disposition is
capable of being disposed of or not. An assignment for value binds the con-
science of the assignor. A Court of Equity as against him will compel himn
to do that which exhypothesi he has not yet effectively done. Further, property,
possibilities and expectancies are all ass1gnable in equity for value".
Indian Law.--Mere
excluded by Section 6 (a) from possibilities or expectancies which are expressly
the of transferable
De transterred at all and, therefore, category
a transfer of any such property cannot
possibility or
expectancy is nullity and has nò effect in law. Foc ins
a

s1onary heir expectant, on the death of a Hindu widow tance, the right of rever
In is a spes succession1S.
Narayan Gaya Singh.
v.

Oguote A Hindu reversioner Lordships

theirhas of the Privy Council observed
no right or interest in
PTOperty
her death,which
the female owner
holds for the life. Until it praesenii ln unc
even to
should he survive vests in him on
her,
transmit s heirs. His right has he nothing
concreteassign
only onrelinquish
to or or
until then it is ntoihis become her demise,
mere spes
34. 45 Ch. D. 51.
suCcessionis"
35. (18 6) 2 Ch 369.
36. (1903) iCh 697,.
37. 45 Cal 59
(PC).
S. 6 IRANSFER OF PROPERTY BY ACT OF PARTIES
45
Council applied
The rule of Hindu Law thus enunciated by the Privy
the amendment
Section 6 (a) of the Act. Since
to Hindus independentiy of the provisions of the section directly apply to
of the Act in 1929, however, ot
Hindus.8 After passing of Hindu
Succession Act 1956, the position
Hindu widow no
tremondously changed.
reversioner qua Hindu widow has in view f S. 14
holds life estate in the properties held in her possession
longer
of Hindu Succession Act.
differs
Law.--The Indian Law
Difference between the Indian and English to asSign a
Law in that under the fornmer even an agreement
from the English as much within
the
is a nullity. Thus a contract to assign is
spes successionis as an actual assignment and this was
inischief of Sec. 6 (a) of the T. P. Act Mohan39 A Hindu
Ananda Mohan v. Gour
decided by the Privy Council in then the reversi-
to which he was
contracted to sell immovable property and to transfer
heir-expectant upon the death of a widow in possession,
onary that the contract
him. The Privy Council held
it upon possession accruing to which forbids the transfer
was void since Sec. 6 (a) of the T. P. Act. character were
would be futile if a contract of that
of an expectancy,
enforceable.
some body on his
to get something from
Legacy.-Legacy is chance uncertain than the chance
Expectation to receive legacy is more
grace. on the same principle
it has been made non-trans-
of heir apparent. Therefore,
ferable.
interests.-Possibilities may be grouped under two
Vested and contingent contingent and vested
with an interest such as
categories namely, coupledSecondly naked possibilities,
or possibilities not
interests in property.
is possible, only under second category i.e. under
coupled with interest. It
clause (a) to S. 6.
to be transferable.41
interests both have been held
Vested and cont1ngent is present interest in
interest in immovable property
Vested remainder or
property.4
made at place of worship.-The
questicn whether a right
Right of offering has given rise to a
future offerings at a temple is not transferable
to receive has held that it cannot be trans-
of decisions. The Calcutta High Court
confict will give oferings is a mere
that future worshippers
ferred because the chance on the other hand, have
The Allahabad and Lahore Higb Courts,
possibility.43 that the right to receive
such right is transfera Ble on the ground
held that does not depend on any
is a definite and fixed right and
offerings when made referred to in Sec. 6 (a). The
moment the offerings are
possibility of the nature to receive them is entitled to appropriate the
made the person with the right variable and limited as to pass out of
same. This right is not so uncertain,
law.4"
the conception of

720.
Shebagavadiranumal v. Mupidathi Ammal, AIR 1942 Mad
38.
39. 48 Cal 536.
457.
40. Nasir-ul-Huq Faiyazul Rahman, 33 All
v.
Mr. Justice S. N. Dwivedi,
of Property Act, 3rd Edition by
41. S. Row's: Transfer
p. 98. Commissioner
Lakshman Babani, AlIRSri
v.
Contingent interest,
1932 Bom 244 ForAIk
see
42, Kumar, 1967 Guj. 161.
of Wealth tax, Gujarat y. Ashok
Hussain v. Far
Mabomed, AIR 1947 Bom 185.
43. Gulam 47 Cal 90.
Bindeshwari, 43 Cal 28: Nitya Gopal v Nani Lal,
44. Pancha Thakur v
 TRANSFER OF PROPERTY ACT
46 IS. 6
In any case, a vendor's right to receive the purchase-money before the
contract is completed, is a mere possibility which can neither be attached nor
sold.4 Likewise the future wages ot a servant are mere possibility and, there.

fore, they cannot be attached or so ld. 4

Other possibilities of like nature.--These have been declarad te be non-
transferable because of uncertain
nature. The word *other are to possibilities'
be read ejusdem generis' to chance of heir apparent and of legacy. Therefore,
these cannot be
transferred. The examples of such possibilities may be next
cast of fishermans's net, fruits in trees or crops infield, etc.

Relation between S. 6 (a) and 43 T. P. Act.

Where, however, an erroneous representation is made by the transferor to
the transferee that he is the full owner of the property transferred, though he
at the date of the transfer, and also
may have only a spes successionis
heirs authorised to transfer it and the transteree acts upon such representation,
then if the transfer happens later bafore the contract of transfer has
been rescinded, to acquire an interest in that property, Section 43 comes into
operation and erstwhile spes successionis will stand automatically conveyed
tothe transferee straightway. The fact that the interest sought to be conveyed
was spes Successionis will not aPply to this case. S. 43 will prevail. The
reason is, that spes successionis continues as such till it matteres and trans-
forms into real estate. The contract continue in existence and nature of
estate sought to be conveyed is determined de novo and afresh at each and
every moment and notable incident affecting the transaction occurs. Till the
transfersor does not get the interest that he pronised to the transferee, S. 6 (a)
T. P. Act applies, the moment the interest promised matures into real and
tranferable interest, S. 43 applies.
In Junma Masjid Mercara v. Kodimariandra Deviahs it was held that
when a person transfers property representing that he has a present interest
therein, whereas he has, in fact, only a spes successionis, the transferee is
entitled to the benefit of Section 43, if he has taken the transfer on the faith of
that representation and for consideration. Such a construction of Section 43
has no effect of nullifying Section 6 (a) Section 6 (a) and Section 43 relate
to two different subjects and there is no necessary coniict between them.
Section 6 (a) deals with certain kinds of interest in property mentioned therein,
and prohibits a transfer simplicitor of those interes ts. Section 43 deals with
representations as to title made by a transferor who had no title at the time of
the transfer, and provides that the transfer shall fasten itself on the title which
the transferor subsequently acquires. Section 6 (a) enacts a rule of substan-
tive law, while Section 43 enacts a rule of estoppel which is one of evidence.
ne wo Provisions operate on different fields, and under different conditions,
ana tnere is no ground for reading a conflict between them or cutting down
Tne ambit of one by reference to another: both of them can be given fuall
eiect on their own terms, in their respective spheres. To hold that transter
by persons who have only a spes successionis at the date of transter are not
within the protection afforded by Section 43 would destroy its utility to a
large extent.
45.
Ahmaduddin v. Tularam, 50 AlI 394:
Nand Kumar v. Ganesh Das, $2 All 451.
46. Abmaduddin Majlis, 3 All 12.
v.

47. Shyam LR 147.v. Mangal Prasad, 57 AU 474: 1935 All 244: Vithabai v.
40 Bom Narain Malhar,
48. AIR 1992 SC 847.
S. 6] TRANSPER OF PROPERTY BY ACr Of PARTIRS 41
Section 43 embodies a rule of estoppel and enacts that a person who
makes a representation shall not be heard to allege the contrary as against
a person who acts on that representation. It is immaterial whether the trans
feror acts bona fide or fraudulently in making the representation. The only
thing material to find out is whether in fact the transeeree has been misled
For the purposes of the section it matters not whether he transferor actedd
fraudulently or innocently in making the representation, and thaf what
is

material is that h: did make a representation, and the transferee has acted on
it. Where the transferee knows as a fact that the transferor does not possess
the title which he represents he has, then he cannot be said to have acted on
it when taking a transfer. Section 43 would then have application, and the
transfer will fall under Section 6 (a). But where the transferee does act on the
benefit of the
representation, there is why he should not have the
no reason
the act of the
equitable doctrine embodied in Section 43, however, fraudulent
transferor might have been.
to
transfer of an expectancy is void in India, an agreement
Just as a
transfer it is eyually void. Thus an agreement by a reversionary heir to trans
fer or relinquish his right of succession is void and of no legal effect.A
share of inheritance when it falls is
agreement by person not to claim a
a
that the equitable doctrine which regards
held to be void on the ground excluded by the express prohibition
that as done which ought to be done is transfer and an agreement
contained in Section 6 (a) of the Act.50 So, too, a
virtue of Section 6 (a).
interest are both void by
to transfer a reversionary
nevertheless beestopped ron claiming the reversion
The reversioner may widow or other
has consented to an alienation by
a
by his conduct if he
In the case of Hargowan v. Baijnath,5*
Allahabad High Court
limited heir. his interest in movable
valid transfer of
held that a reversion»r cannot make nearest reversionary heir to
Note. Consent by the
property e. g., Promissory widow in possession, the donee undertaking to
a gift of property made bydoes not amount to a transfer of spes successionis
a

maintain the reversioner,

transaction is in the nature of a family arrange-
by the reversioner. The rule of Mohammedan Law. However,
ment.4 Section 6 does not affect any
Mohammedan Law itself does not permit mere
possibility or expectancy to
by an heir apparent of his right
be transferred.55 So also, the relinquishment But a family-settlement even
be invalid.5
of inheritance has been held to as transfer of
under Mohammedan Law is valid because, it is not treated
which is in the nature of a family-settlement,
property. The relinquishment, and therefore, it has been held to be
does not amount to transfer of property
valid.
Alld. Civil
Relinquishment:-In Jagdamba Pd. Pande a v. Dy. D. C. when her
126 the widow had excuted rélinquishment
Journal (1982) p. started, the High Court held
father-in-law was alive, Later on when litigation
succession. Hence the deed oE
of
that she had at that time, merely chanceon her.
relinquishment is invalid and not binding

49. Ananda v.Gour Mohan, 51 IA 239.

50. Samsuddin v. Abdul, 31 Bom 165.
v. Monokarnika,
35 IA 1.
S1. Bajrangi
52. 32 AlVd. 88.
3. Chahlu v. Parmal, 41 Al 611.
705.
54. Anouv. Sripati, 32 Bom LR
165: Hussain Ali v. Narid, 11 All 456.
35. Shamsuddin v. Abdul, 31 Bom
2 Mad LJ 492.
$6. Abdul Gafoor v. Abdul Razack, (1958)