CHAPTER II

OF TRANSFERS OF PROPERTY BY ACT OF PARTIES

(A) Transfer of Property, whether moveable or immoveable
 Section 5: What is Transfer of Property?

Transfer of Property is a 'Conscious Act' when a

living person transfers his property (in present or
future) to:
• One or more living Persons
• Himself,
• Himself and another living person
CASE LAW: Jugalkishore Saraf vs Raw Cotton Co. Ltd (1955)
The words "in present or in future" qualify the word "conveys and
not the word "property".
What is not considered as a 'transfer' under TPA ?
• Creation of an Easement or Charge over property is not a Transfer.
• Relinquishment of your right is not Transfer.
• Recognition of Pre-Existing Rights is also not Transfer.
Section 6: What may be Transferred?

a. Spes successionis — Possibility of getting property in

future,
It includes:
• Chance of an estate coming to an heir in succession or
• Chance of obtaining any legacy on the death of a relative or
• Any other possibility of similar nature.
b. Right of re-entry for breach of a condition subsequent to
any person other than the
owner of the property affected.
c. Easementary right apart from the dominant heritage
d. Restricted Interest: An interest in property restricted in its
enjoyment to the owner personally.
dd. Right to future maintenance- Future Maintenance
is for the personal benefit of the
person to whom it is granted, thus it cannot be
transferred.
e. Right to Sue: Right to sue for an indefinite sum of
money cannot be transferred, if it is right to sue for
definite sum of money, then it is an actionable claim.
f. public office and the salary of any public officer,
whether before of after it has become payable.
g. Stipends/Pensions allowed to military, naval, air-force and
civil pensioners of the Government and political pensions
h. Three Categories made-
i. If it opposes the nature of the interest affected
ii. If it is a transfer of unlawful object or consideration
according to section 23 of ICA.
iii. If it is to a person legally disqualified to be transferee.
• i. Other Untransferable Interests: Tenant who has
untransferable right of occupancy cant tranfer his right,
Farmer who has agricultural land of which he has made a
default to pay revenue to the government can't transfer his
interest in that land, Lessee of an estate under the
management of a court of wards will not be allowed to
transfer his right.
Section 7: Persons competent to transfer.

Every person competent to contract and entitled to

transferable property, or authorised to dispose of transferable
property not his own, is competent to transfer such property
either wholly or in part and either absolutely or conditionally,
in the circumstances, to the extent and in the manner, allowed
and prescribed by any law for the time being in force.
• Case Laws:
1. Official Assignee, Madras vs. Sampath Naidu, AIR 1933 Mad. 795: In
this case, the court ruled that a mortgage executed by an heir is void, even if
the heir subsequently acquires the property as an heir. Therefore, the transfer
of spes successionis (bare chance of inheritance) is void ab initio.
2. Shoilojanund vs. Peary Charon, (1902) ILR 29 Cal 470: The court held
that the right to receive voluntary and uncertain offerings in worship is
restricted for personal enjoyment and, therefore, cannot be transferred.
1. Ananthayya vs. Subba Rao, AIR 1960 Mad 188: In this case, the court
clarified that agreements where one person agrees to give a certain
proportion of their income to another person, in consideration of being
maintained by the latter, are not subject to the non-transferability provisions.
2. Saundariya Bai vs. Union of India, AIR 2008 MP 227: The case affirmed
that pensions are non-transferable property, especially when they are unpaid
and in the possession of the government. It is essential to differentiate
pensions from bonuses and rewards, which may be transferable.
 Section 8: What shall be Operations of
Transfer?

Unless it is provided in contrary, the following interest will also

transfer with the transfer of property
1. Land: The right to easement, rents and periods including
all the things attached to the earth.
2. A house: The right to easement, rent, including the locks,
keys, bars, doors, windows and all other things provided
for permanent use.
3. Machinery attached to the earth: The movable parts of it.
4. A debt or other actionable claim: The securities (except if
they are also secured for any other debts).
5. Money or other property yielding income: The interest or
income occurring after the transfer takes effect.
 Section 9: Oral transfer

A transfer of property may be made without

writing in every case in which a writing is not
expressly required by law.
 RESTRICTIONS
Sections
10 - Conditions Restraining Alienation
11 - Restriction Repugnant to Interest Created
12 - Conditions related to insolvency
Conditions put can be of two types:
1. Conditions Precedent: Put prior to the transfer
and the actual transfer depends upon the
compliance of that condition.
2. Conditions Subsequent: To be fulfilled after the
transfer, these conditions affect the rights of
transferees the transfer.
Section 10: Conditions which Restrain the Alienation
When a property is subjected to a limitation or condition
which absolutely/restrains the transferee to part with or
dispose of his interest, such conditions shall be void as per
section 10 Restraint on the alienation is said to be absolute
when it totally takes away the right of disposal.
Exceptions:
Transfer to woman or for her benefit (Not hindu/Muslim/Buddhist:
Property may be transferred to or for the benefit of a married woman
with condition of restraint to alienation and that condition shall not
be void
Lease: Conditional transfer is valid in case of lease when the
condition is for benefit of lessor or for those who are claiming under
him because Lease is fundamentally the transfer of just right of
enjoyment and not transfer of Ownership.
Section 11: Restriction Repugnant to Interest Created.
Where on the transfer of property, an interest is created in the favour of any
person, but terms of the transfer direct that such interest should be executed
by him in a particular manner that is unreasonable in the eyes of law, such
conditions shall be declared void
Exception: Where such directions were made with respect to a particular
piece/part of immovable property, to secure the enjoyment of another piece of
the same property, no right of transferor shall be affected.
Section 12: Conditions to determine the interest in case of
Insolvency or Attempted Transfer.
1. Where a property which is subjected to limitations or conditions
that the transferred interest shall cease to have any effect if the
person becomes insolvent, such types of conditions shall be void. 2.
After a person becomes insolvent and tries to dispose of the property
or such interest, even at that time such type of conditions which
restrain him from disposing off his property absolutely, shall be
declared void.
Exception: Lease
 Section 13: Transfer for the benefit of an Unborn
Person

Where, on a transfer of property, an interest therein is created

for the benefit of a person not in existence at the date of the
transfer, subject to a prior interest created by the same
transfer, the interest created for the benefit of such person
shall not take effect, unless it extends to the whole of the
remaining interest of the transferor in the property.
1. The interest of the unborn person must be preceded by a prior
interest.
2. The unborn person must be in existence when the prior interest
comes to an end.
3. The interest created in favour of the unborn person must be the
whole of interest remaining of the transferor
CASE LAW: Tagore v. Tagore (1872) - Privy Council observed that a
foetus/infant in a womb is a person in existence for the purpose of
making an unborn child.
1. Girjesh Dutt vs. Datadin: In this case, a gift was made for the life of 'B' and then
to 'B's daughter without the power of alienation. If 'B' had no heir, the property
would go to 'A's nephew. The court held that the gift in favor of unborn daughters
was invalid under Section 13 because it was a limited interest and subject to the
prior interest in favor of 'B.'
2. Raja Bajrang Bahadur Singh v. Thakurdin Bhakhtrey Kuer: The Supreme
Court observed that no interest can be created directly in favor of an unborn
person. However, when a gift is made to a class or series of persons, some of
whom exist and some are nonexistent, it remains valid for the persons who exist at
the time of the testator's death but is invalid for the rest.
 Section 14: Rule against perpetuity.

No transfer of property can operate to create an interest which

is to take effect after the lifetime of one or more persons living
at the date of such transfer, and the minority of some person
who shall be in existence at the expiration of that period, and
to whom, if he attains full age, the interest created is to
belong.
• Section 13 states that life interest can be created in favour
of living persons and the moment unborn is born he will
get the vested interest
• Section 14 provides that transferor can postpone that
vesting of interest in such unborn person till minority.
 Section 15: Transfer to class some of whom
come under sections 13 and 14.
If, on a transfer of property, an interest therein is created for the
benefit of a class of persons with regard to some of whom such
interest fails by reason of any of the rules contained in sections 13
and 14; such interest fails
[in regard to those persons only and not in regard to the whole
class].