PROPERTY LAW

UNIT-1
Concept of Property and General Principles
Relating to Transfer of Property

TOPIC
Transferable and Non-Transferable Property
UNIT-1 (d)

Dr. Alankrita
Assistant Professor
DME Law School
a.mathur@dme.ac.in
 Suggested Readings

• Transfer of Property Act, 1882

• Transfer of Property Act, R.K.
Sinha, Central Law Agency.
• Transfer of Property Act, Avatar
Singh, Universal Law Publishing
• The Transfer of Property Act, G.P.
Tripathi, Central Law Publications
TRANSFERABLE & NON-TRANSFERABLE
PROPERTY
As per section-6
-property of any kind may be transferred- General
Rule;
-based on maxim- alienation rei prae fertur juri
accrescendi meaning alienation is favoured over
accumulation.
-except
a) Specs-successionis
b) Mere right of re-entry
c) Easement apart from dominant heritage
d) Restricted interest
e) Right to future maintenance
f) Mere right to sue
g) Public office and the salary of a public office
h) Stipends and pensions
i) No transfer as it is opposed to the nature of
interest; for unlawful object/consideration; or to
a person legally disqualified to be transferee.
a) Spec Successionis- not transferable (s.6(a))

- Chance of an heir apparent succeeding to an estate.

- Means expectation of succession.
- Not a legal heir but would become if survives
propositus and if propositus dies intestate.
- Chance of a legatee obtaining legacy on death
- Expecting to get property under a will.
- Mere possibility of like nature-“Future uncertain
possible interest”- not transferrable as there is no
guarantee of surety.
b) Mere right of re-entry- not transferable (s.6(b))
- Mere right of re-entry for breach of a condition
subsequent- not transferrable to anyone except the
owner.
- E.g., lessor has right to re-enter in case of breach of
a condition by lessee. This right is not transferrable.

c) Easement- not transferrable (S.6(c))

- As per s.4 of Easement Act, 1882, “An easement is a
right which the owner or occupier of certain land
possesses, as such, for the beneficial enjoyment of that
land, to do and continue to do something, or to prevent
and continue to prevent something being done, in or
upon, or in respect of, certain other land not his own.”
- Dominant heritage (for whose beneficial enjoyment
right is exercised), servient heritage (land upon
which right is exercised).
- Incident of ownership of dominant heritage.
- Cannot be detached.

d) Restricted Interest- not transferrable (S.6(d))

- Interest restricted in its enjoyment to owner only-
not transferrable.
- E.g., A gives land to B for personal use. Not
transferrable.
e) Right to future maintenance- not transferrable
(S.6(dd))
- Being personal in nature.

f) Mere right to sue- not transferrable (S.6(e))

- Right to sue for definite sum of money is
transferrable- actionable claims.
- But right to sue for indefinite sum of money is not
transferrable.
- E.g., right to sue for damages in tort or contract are
bare right to sue, thus, not transferrable.
g) Public office or salary of public office- not
transferrable (S.6(f))
- Made non transferrable to ensure dignity of
the office and proper performance of duties.

h) Stipends and Pensions- not transferrable

(S.6(g))
- Stipends to military, naval, air-force and civil
pensioners – not transferrable.
- Pensions or stipends are granted on account
of past services, these are periodical
allowances.
i) No transfer if- opposed to nature of interest; for
unlawful object; in case of disqualified transferee-
(S.6(h))
• Opposed to nature of interest
- means if nature of property is such that it does not
admit transfer, no valid transfer.
- E.g., air, water, light etc. in free state i.e., in their
natural form- transferring them would be opposed to
its nature.
• For unlawful object/consideration
- s.23 Contract Act,1872 (consideration or object is
unlawful if- it is forbidden by law; to defeat provision of
law; it is fraudulent; it involves injury to
person/property; it is immoral or opposed to public
policy).
• Disqualified transferee
- By law declared to be disqualified to be transferee.
- E.g., s.136 TPA certain persons disqualified to be
transferee.
j) Untransferable interests (S.6(i))
- Non transferability of occupancy rights.
- No authority to a tenant having an untransferable
right of occupancy, the farmer of an estate in respect
of which default has been made in paying revenue,
or the lessee of an estate under the management of a
Court of Wards, to assign his interest as such tenant,
farmer or lessee.
 Essentials of a Valid Transfer
(On the basis of s.5, 6, 7, 8, 9 of TPA, 1882)
• Property must be transferable (s.6);
• Transferor must be competent (s.7);
• Transferee must not be legally disqualified to be
transferee;
• Transferor must have right to transfer (s.7);
• Object/consideration must be lawful (s.6(h) ii);
• Must be made in prescribed form (s.9).