INSTITUTE OF LAW, NIRMA UNIVERSITY

COURSE NAME: PROPERTY LAW

COURSE CODE: 2BL723

CE- II

RESEARCH ARTICLE TITLE

“TRANSFER OF PROPERTY IN CASES OF SPES SUCCESSIONIS”

SUBMITTED TO: SUBMITTED BY:

MR. NEERAJ SHARMA INJILA KHAN (19BAL018)
(ASST. PROF. ILNU) RISHAV KUMAR (19BAL036)
RIYA JAIN(19BAL040)
TULIKA SOMVANSHI (19BAL053)
TULSI KHORIA(19BAL054)

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 ACKNOWLEDGEMENT

The success and outcome of this project required a lot of guidance and assistance from many
people and we are extremely privileged to have got this all along the completion of our project.
All that we have done is only due to such supervision and assistance and we would not forget to
thank them.

We are greatly indebted to Institute of Law Nirma University for providing me the necessary
requirements to successfully carry out this project work.

We would like to thank our Hon’ble Director and Dean (I/c) Dr. Madhuri Parikh Ma’am and
our Head of Department for giving me this golden opportunity.

We respect and thank Mr. Neeraj Sharma Sir for providing us with an opportunity to do this
project and giving me support and guidance which made me complete the project duly. We are
extremely thankful to him for providing such nice support and guidance.

We extend our gratitude thanking our parents and our friends for giving us the support and
strength to complete this wonderful project.

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 TABLE OF CONTENTS

1. Acknowledgement .................................................................................................................... 2

2. Research Objective ................................................................................................................... 4

3. Research Question .................................................................................................................... 4

4. Research Methodology ............................................................................................................. 4

5. Literature Review...................................................................................................................... 5

6. Abstract ..................................................................................................................................... 6

7. Introduction ............................................................................................................................... 7

8. Transfer of Spes Successionis under Section 6(a) of Transfer of Property Act, 1882.............. 9

9. Doctrine of Spes Successionis in English Law ....................................................................... 14

10. Doctrine of Spes Successionis in Hindu Law and Muslim Law ............................................. 15

11. Distinction between Section 6(a) and Section 43 of Transfer of Property Act, 1882 ............. 16

12. Conclusion .............................................................................................................................. 17

13. Bibliography ........................................................................................................................... 18

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 CHAPTER- I

RESEARCH METHODOLOGY

I. RESEARCH OBJECTIVE

The objective of the project is to find out the exception to the general rule of transferability i.e.
Chance of an heir – apparent, Chance of a relation obtaining a legacy on the death of a kinsman
and future possibilities of a like nature.

II. RESEARCH QUESTION

1. To find out the doctrine of Specs Successionis as mentioned in Section 6(a) of the Transfer of
Property Act, 1882.

2. To find the difference between the doctrine of Specs Successionis in Indian law and English
law.

3. To find the distinction between Section 6(a) and Section 43 of Transfer of Property Act,
1882.

4. To find the applicability of this doctrine in Hindu Law and Muslim Law.

III. RESEARCH METHODOLOGY

This paper follows Doctrinal Research methodology, which is a theoretical research and study
of the topic with secondary sources. The paper is descriptive in nature and includes qualitative
work of topic, with proper research based on the sources available on internet, which includes
journals, articles, research paper, and works based on recent developments of law.

IV. MODE OF CITATION

Mode of citation is Bluebook 20th Edition.

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V. LITERATURE REVIEW-

The goal of a literature review is to update a topic with the most recent information acknowledged
by different authors. It provides an overall view of subject area and gives significant information
to start research. The present paper analyzes the position of Spec successionis as an exception to
transferability while looking at a case study to understand why this is an exception to the general
rule and how it is different from other cases of like nature. Taking position of English Law though
‘expectancy’ is not regarded as property which can be assigned, there is no express prohibition of
an assignment of an expectancy for value and such assignment operates as a contract to assign as
soon as the expectancy becomes an interest.

The Indian law differs from the English law in that as under the former even an agreement to assign
a Spes Successionis is nullity thus, a contract to assign is as much within the mischief of section
6(a) of the transfer of property act as an actual assignment. Clause (a) of section 6 of the Transfer
Of Property Act excludes mere 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’. During the lifetime of a person, the chance of his heir apparent succeeding to the
estate or the chance of a relation obtaining a legacy under his will is a ‘Spes Successionis’(chance
of succession). Such an expectancy does not amount to an interest in property and cannot be made
the subject matter of a transfer.

The article helped to analyses the chances of an heir-apparent being excluded from transferring any
movable or immovable property of the holder of property during his lifetime. The same has been
sone be way of analyzing various cases like Jumma Masjid Mercara v. Kodimariandra Deviah,
Amrit Narayan v. Gaya Singh etc.

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 ABSTRACT

The Transfer of Property Act excludes mere chance of an heir apparentof succeeding to an estate
from the category of transferable property under Clause (a) of section 6. The technical expression
for such a chance is ‘Spes Successionis’. During the lifetime of a person, the chance of his heir
apparent succeeding to the estate or the chance of a relation obtaining a legacy under his will is
a ‘Spes Successionis’ (chance of succession). Such expectancy does not amount to an interest in
property and cannot be made the subject matter of a transfer. The paper aims at analyzing the
position of the same while looking at a case study to understand why this is an exception to the
general rule and how it is different from other cases of a like nature.

Keywords:
Spes Successionis, chance of succession, Transfer , Property, etc.

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 CHAPTER I
INTRODUCTION

The general principle of transfer of property in Transfer of Property Act, 1882 is that property and
interest in property are transferable. This rule of transferability is based on the maxim “alienation
rei prefertur juri accrescendi”, which means law favors alienation to accumulation. Therefore, any
attempt to interfere with the power of the owner to alienate his interest in the property is frowned
upon by the law. At the same time, where either the transferor does not possess a valid title to the
property and is solely by its very nature created for its personal enjoyment, or as a rule of public
policy, transfer of such interests in property should not be allowed to be transferred, a transfer of
property in such case by him , are prohibited.1

Except as specified in various clauses of Section 6 of the Act, property of any kind may be
transferred. Therefore, general rule is that property of any kind may be transferred as laid down
in Section 6 and the person pleading non-transferability must prove the existence of any usage or
custom which restricts the right of transfer.

The Act merely defines certain expressions used in relation to transfer of property by act of parties
and amends the (then) prevailing rules governing the same. It therefore does not purport to
introduce any new principle of law.The important words used in the Act are ‘by act of parties’,
and therefore, it applies and governs the transfer by act of parties only and does not govern the
transfer that takes place due to operation of law. Accordingly, it does not govern transfers of
property through court auction, forfeiture, acquisition or due to insolvency proceedings or
government grants. It also does not govern transfers of property through intestate or testamentary
succession. One of the basic objectives of the Act was to bring in harmony therules relating to
transfer of property between living persons and those applicable in case of the devolution of the
same, in the event of death of a person, through intestate and testamentary succession.2 The
Act also seeks to complete the law of contract, as most of transfers primarily arise out of a contract
between the parties. The Act has also, by providing for the compulsory

1
Dr. Poonam Pradhan Saxena, property law, 2nd edition(2013), pg.67
2
http://lawfarm.in/question/answer-for-what-is-spes-successionis--what-are-the-rights-of-a-spes-successionis-3

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registration of the transfers, changed the nature of a transfer of property form a private to a
public affair.

ESSENTIALS OF VALID TRANSFER

However, for a valid transfer of property whether movable or immovable, the compliance of the
following conditions must be noticed under the Act––

(a) The property must be transferable (Section 6).

(b) The transfer must be competent to transfer (Section 7).
(c) Transfer must not be opposed to the nature of the interest affected thereby [Section6 (h) (1)].
(d) The consideration or object of transfer must be lawful [Section 6 (h) (2)].
(e) The transferee must be competent to take transfer [Section 6(h) (3)].
(f) It must be made in the manner and in the form required by the Act, if any (Section 9).3

Where the transfer is not of the right of expectancy of an heir apparent but of the property itself, it
cannot be said to be a transfer of a mere chance to succeed. Thus, when a person is not heardof
for a long time and is believed to be dead, an agreement to transfer the property, entered into by
his brother who is in enjoyment and possession of the property in dispute, is not a transfer of the
right of expectancy, but of the property itself and is not hit by clause (a) of Section 6.

The things referred to in Sub-section of Section 6 as non-transferable are the chance of an heir
succeeding to an estate, the chance of a relation obtaining a legacy (a gift by will) on the death of
a kinsman, and any other mere possibility of a like nature.4

3
See Transfer of Property Act, 1882.
4
See The Transfer of Property Act, 1882, S. 6.

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 CHAPTER II
TRANSFER OF SPES SUCCESSIONIS UNDER SECTION 6(A) OFTRANSFER OF
PROPERTY ACT, 1882

I. SCOPE AND OBJECTIVE

a) Exceptions to the Rule of Transferability: Non-transferability wherein law prohibits the

transfer of property in certain cases creates an exception to this rule. Clauses (a) to (i) of Section
6 enumerate ten exceptions wherein a property is not transferable.

b) Clause (a) of Section 6 (Spes Successionis): Section 6(a) 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’. Therefore, the law contained in this Section
6 applies only when the transferor does not possess a valid title to the property and is merely
hoping to acquire one in future, or has an interest in property that is solely by its very nature
created for his personal enjoyment, or as a rule of public policy, transfer of such interests in
property should not be allowed to be transferred, a transfer of property in such cases by him,
are prohibited.5

II. ESSENTIALS OF THE RULE

The essentials of aforesaid said rule are enumerated in the language of the Section 6(a) of
Transfer of Property Act, 1882. This section is read as follows:6
“Section 6 – What may be transferred.–– Property of any kind may be transferred, except
as otherwise provided by this Act or by any other law for the time being in force,––
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a
legacy on the death of a kinsman, or any other mere possibility of a like nature cannot be
transferred.”
For instance, ‘A’ hopes to succeed to his father’s property on his death. His acquisition of this
interest is based on a hope or expectancy that may or may not materialize. If he is permitted to

5
See The Transfer of Property Act, 1882, S. 6.
6
Id.

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transfer the same, it may create confusion and conflict claims later on. Therefore, in attempt for
achieving this object, the law does not permit him to do so.

Section 6(a) of Transfer of Property Act, 1882 talks about Spes successionis. It means expectation
of succession. Expectation of succession is expecting or having a chance of getting a property
through succession. Spes successionis is therefore, not any present property. It is merely a
possibility of getting certain property in future.
Spes successionis under this clause includes-
(a) Chance of an heir-apparent succeeding to an estate.
(b) Chance of a relation obtaining a legacy on the death of a kinsman or,
(c) Any other mere possibility of a like nature.

A. CHANCE OF AN HEIR – APPARENT

a. Heir- apparent
The term ‘heir apparent’ is an English term and is based on the maxim ‘nemo est heres viventis’
which means that a living person does not have any heir. A mere possibility of an heir succeeding
to an estate is excluded from the category of transferable property.

The prohibition enacted in this clause is based on public policy, namely, that if these
transfers were allowed speculators would purchase the chance of succession from possible
heirs and there would be increase in speculative litigations.7

Sec. 6(a), however, prohibits the transfer of a bare chance of a person to get a property. Afterthe
death of the husband, for example, if two widows inherit their husband's properties together, the
transfer of bare chance of the surviving widow taking the entire estate as the next heir of her
husband on the death of the co-widow of her present interest in the properties inherited by her
together with the incidental right of survivorship. Such widows could validly partition the
properties and allot separate partitions to each and, incidental to such an allotment, could agree to
relinquish her right of survivorship in the portion allotted to the other.
b. Chance

An heir apparent has only a chance of inheriting the property subject to two possibilities-
7
http://www.legalindia.com/spes-successionis-as-an-exception-to-transferability/

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i. He survives the propositus.
ii. The propositus dies intestate i.e., without making any will.8

c. Transfer of Spes Successionis is void ab initio-

The chance of an heir apparent to succeed to the property of an intestate therefore cannot be
transferred. This chance is also referred to as spes successionis. If a person transfers this chance,
the status of this transfer in law is void ab initio. It does not convey any right in favour of the
transferee, even if the transferor who transfers a chance may, in fact, become the owner of the same
property in future.

In Official Assignee, Madras v Sampath Naidu19, a mortgage executed by an heir apparent washeld
as void by the court even though he subsequently acquired the property as an heir.

B. CHANCE OF A RELATION OBTAINING A LEGACY ON THE DEATHOF A KINSMAN

Clause (a) provides that the chance of a relation obtaining a legacy on the death of a kinsman is
not transferable10. Legacy means expectancy of getting certain property under a Will. A Will
becomes operative only after the death of the testator i.e. the person who has made the Will. If the
person has made two or more Wills, then, only the last Will made by him will be operative. Legatee
under the last will only will get the legacy. Expectancy to receive legacy is uncertain because the
legatee may or may not survive the testation and the testator may have charged the name of the
legatee in his last Will. Therefore, the chance of a legacy has been made non- transferable.

For instance, X bequeathes his house under a Will in favour of Y. Till X is alive, Y has a bare chance
of obtaining this legacy. It is a chance, as Y can become the owner of this property only if: i. X dies
before Y;
ii. X does not revoke this Will or bequeathes the property in favour of anybody else; and

8
Supra note 1 at pg. 68
9
AIR 1933 Mad 795.
10
See The Transfer of Property Act, 1882, S. 6(a).

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 i. The property bequeathed to Y is available at the time of the operation of the Will, i.e., it has
not been disposed of by X during his life time.

Therefore, Y is prohibited from transferring the property which is bequeathed to him before
the operation of the Will.

In Ananda Mohan Roy v Gaur Mohun Mullick11, the issue before the Privy Council was, whether
a contract by the nearest reversioner to sell the property which was in the possession of a widow
as an heir, was valid and enforceable, and it was held that the prohibition under section 6(a) would
become futile, if agreements to transfer property, where acquisition of title was based on
possibilities, could be enforced. Hence, the Privy Council held that such contract was void and
unenforceable in court of law.

C. FUTURE POSSIBILITIES OF A LIKE NATURE

The expression “any other possibility of a like nature” indicates that the possibility referred to
herein must belong to the same category as the chance of an heir apparent or the chance of a
relation obtaining a legacy. Any other possibility of like nature cannot be transferred12

The chance of receiving a gratuitous payment at the discretion of an employer for services being
or about to be rendered13, or the chance that future worshippers will give offerings to the temple14,
or an agreement for the sale of ot- karnam lands,15 are mere possibilities and cannot be transferred.
A right to pala or turn of worship is not transferable.16 Neither the temple, nor the deities nor the
she bait right can be transferred by sale tor pecuniary conditions, and such transter is void ab
initio.17 However, the right of a Mahabrahmin to receive offerings made by pious Hindus18 is a
valuable, definite and tangible right; is not merely a possibility19, and is therefore, capable of being
transferred.

11
AIR 1923 PC 189.
12
See The Transfer of Property Act, 1882, S. 6(a).
13
Soloman v. Official Assignee, AIR 1939 Rang 8.
14
Puncha v. Bindeshwari, 12 Can WD 580; Nirva Gopal v. Nani Lal, (1920) ILR 47 Cal 990; Paragi v. Gauri
Shanker, 51 IC 86; Shoilojanund v. Peary Charon, (1902) ILR 29 Cal 470.
15
Auryaprabhakara v. Gummudu, AIR 1926 Mad 885.
16
Mallika v. Ratanmani, 1 Cal WN 493.
17
Kali Kinkor Ganguli v. Panna Banerjee, (1974) 2 SCC 563.
18
Sukhlal v. Bishambhar, (1917) ILR 39 All 196. See also Balmukund v. Tularam, AIR 1928 All 21; Bhagwandeen
v. Billeshwur, AIR 1937 Oudh 15, wherein it was held that the right to receive offerings made at a temple which
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 CHAPTER-III
DOCTRINE OF SPES SUCCESSIONIS IN ENGLISH LAW

I. APPLICABILITY OF THIS DOCTRINE IN EQUITY COURTS

Under English Law too, spes successionis is non-transferable; however it allows such transfers
which are attached with consideration. So it is a general rule that spes successionis is non-
transferable but if the transferor alienates his mere chance of succeeding to another person for some
consideration then this contract is not treated as void ab initio. In other words transfer of expectancy
for some value is protected by equity but at the same time a gift of expectancy is prohibited. For
protecting the rights of the transferee, in good faith, equity courts follow this rule. The result is
that if an heir-apparent transfers the property, for which he has expectation of succeeding, and the
transfer is for valuable consideration then, when that heir-apparent becomes legal heir and gets
interest over that property, the equity shall compel him to pass on the title to the transferee.

In the case of In re Parsons20 it was observed that:

It is indisputable law that no one can have any estate or interest at law or in equity, contingentor
other, in the property of a living person to which he hopes to succeed as heir at law or next of kin
of such living person. During the lifetime of such person no one can have more than spes
successionis, an expectation or hope of succeeding to his property.21
In India neither a gift nor a transfer for some value, of expectancy, is allowed. But this equitable
principle is also incorporated in Section 43 of Transfer of Property Act, 188222, which safeguard

dissociated trom priestly office is transferable. See also Zuharia Mal v. Parmeshri, AIR 1942 Lah 284; Nandkumar
v. Ganesh, AIR 1936 All 131.
19
Badri Nath v. Punam, AIR 1973 J&K 7.
20
150 U.S. 150 (1893).
21
http://www.legalservicesindia.com/article/2163/SPES-Successionis-As-An-Exception-To-Transferability.html.
22
(43). Transfer by unauthorised person who subsequently acquires interest in property transferred.—Where a
person 1[fraudulently or] erroneously represents that he is authorised to transfer certain immoveable property and
professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on

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 the rights of a bonafide transferee by enforcing the fraudulent or erroneously transfers by transferor,
for consideration, up to the interest of transferor in such immovable property.

II. DIFFERENCE BETWEEN INDIAN LAW AND ENGLISH LAW

The Indian law differs from the English law in that under the former even an agreement to assign
a Spes Successionis is nullity thus; a contract to assign is as much within the mischief of section
6(a) of the Transfer of Property Act as an actual assignment.23

any interest which the transferor may acquire in such property at any time during which the contract of transfer
subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of
the existence of the said option.
23
Supra note 5.

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 CHAPTER- IV
DOCTRINE OF SPES SUCCESSIONIS IN HINDU LAW AND MUSLIMLAW

I. HINDU LAW

Transfer by Hindu Reversioner

Under the Hindu law, the right of a reversionary heir expectant on the death of a Hindu widow is
a spes successionis, and its transfer is a nullity and has no effect in law. In Amrit Narayan v. Gaya
Singh24, the Privy Council said, A Hindu reversioner has no right or interest in the
property which the female owner holds for her life. Until it vests in him on her death, should he
survive her, he has nothing to assign or relinquish or even to transmit to his heirs. His right
becomes concrete only on her demise, until then it is mere spes successionis.

Estoppel of a Reversioner

Although both the transfer and the agreement to transfer a reversionary interest are void,yet a
reversioner may be estopped from claiming the reversion by his conduct if he has consented to an
alienation by a widow or other limited heir. The position can be further explained by an
illustration: A Hindu widow executed a deed of gift of a part of her husband’s property to D.F
who was then the nearest reversioner joined in the deed. On the widow’s death F claimed the
property pleading that the gift was invalid F having consented to the gift is estopped from
disputing its validity.

II. MUSLIM LAW

It has been held that in the case of Muslims, the transfer of expectancy by an heir presumptive is
void ab initio and that no question of an estoppel can, therefore, arises by reason of the heir
renouncing her claim before the expectancy opens.

24
(1918) 20 BOMLR 546.

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 CHAPTER-V
DISTINCTION BETWEEN SECTION 6(A) AND SECTION 43 OF
TRANSFER OF PROPERTY ACT, 1882

In Jumma Masjid Mercara v. Kodimariandra Deviah25 the court led down the distinction between
Section 6(a) and Section 43 of Transfer of Property Act, 1882. Specs Successionis 26 is enacted as
a law of substantive law. It applies to both moveable and immoveable property. Transfer of Specs
Successionis is within the knowledge of both the parties, i.e. transferor and transferee. There is no
misrepresentation from either party. The doctrine of feeding the grant by Estoppel27 is enacted as
a rule of estoppel. It is applicable only to the transfer of immoveable property. There is fraudulent
or erroneous representation and transferee is assued of the good title. The transferee had no
knowledge of the defect in title of the transferor.

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 the representation. It is
immaterial whether the transferor who acts bona fide or fraudulent in making the representation.
It is only material to find out whether, in fact, the transferee has been misled. It matters not whether
the transferor acted fraudulently or innocently in making the representation and the transferee has
acted on it. Where the transferee knew as a fact that the transferor did not possess the title which
he represents he has, then he cannot be said to have acted on it when taking a transfer, and Section
43 would not then apply and the transfer will fail under Section 6(a). But where transferee does
act on the representation, he will have the benefit of the equitable doctrine embodied in Section
43, however fraudulent the act of the transferor might have been.

25
1962 AIR 847, 1962 SCR Supl. (2) 554.
26
See The Transfer of Property Act, 1882, S. 6(a).
27
See The Transfer of Property Act, 1882, S. 43.

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 CHAPTER-VI

CONCLUSION
The alienation and transferability of property is a general rule, however, there are some exceptions
to the general rule which are enumerated in the provisions of section 6 of the Transfer of Property
Act, 1882, and from those entire enumerated exception one is spes successionis. The provision of
section 6(a) of the mentioned Act prohibits and restricts the transfer of the chance of getting the
rights of the property in future after the death of the owner. Such provision prohibits the transfer
of rights of an heir-apparent, which he will get in the future, and not prohibits the transfer of the
property itself which he will get in future because such transfer of property itself is void ab initio
as no one transfers a property on which they have no rights.

In Chance of an Heir Apparent/ Spes Succession, the technical expression for the chance of an heir
apparent succeeding to an estate is called spes succession is. It means succeeding to a property.
This means an interest which has not arisen but which may arise in future. It is in anticipation or
hope of succeeding to an estate of a deceased person. Such a chance is not property and as such
cannot be transferred. If it is transferred, the transfer is wholly void.

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 CHAPTER-VI
BIBLIOGRAPHY

A. STATUTE

a) The Transfer of Property Act, 1882

B. CASE LAWS

a) Amrit Narayan v. Gaya Singh (1918) 20 BOMLR 546.

b) Jumma Masjid Mercara v. Kodimariandra Deviah 1962 AIR 847, 1962 SCR Supl. (2) 554.
c) In re Parsons 150 U.S. 150 (1893).
d) Badri Nath v. Punam, AIR 1973 J&K 7.
e) Soloman v. Official Assignee, AIR 1939 Rang 8.
f) Puncha v. Bindeshwari, 12 Can WD 580.
g) Nirva Gopal v. Nani Lal, (1920) ILR 47 Cal 990.
h) Paragi v. Gauri Shanker, 51 IC 86.
i) Shoilojanund v. Peary Charon, (1902) ILR 29 Cal 470.
j) Auryaprabhakara v. Gummudu, AIR 1926 Mad 885.
k) Mallika v. Ratanmani, 1 Cal WN 493.
l) Kali Kinkor Ganguli v. Panna Banerjee, (1974) 2 SCC 563.
m) Ananda Mohan Roy v Gaur Mohun Mullick AIR 1923 PC 189.
n) Official Assignee, Madras v Sampath Naidu1 AIR 1933 Mad 795.

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