TRANSFER OF PROPERTY ACT

Syllabus:-

OBJECTIVES

The focus of this course in on the study of the concept of “property”, the nature of property
rights’ and the general principles governing the transfer of property. A detailed study of the
substantive law relating to particular transfers, such as sale, mortgage, lease, exchange, gift and
actionable claims will also be undertaken. The course also includes an exposure into the concept
of trust.

Course

Contents.

UNIT-I

General Principles of Transfer of Property by act of Parties inter-vivos- concept and meaning of
immovable property- Transfer of immovable property- persons competent to transfer- operation
of Transfer- Conditions restraining alienation and restrictions repugnant to the interest created-
rule against perpetuity and exceptions-Direction for accumulation- Vested and Contingent
interest, void conditions, Rule of acceleration, fulfillment of conditions subsequent.

UNIT- II

Doctrine of election –transfer by ostensible and co-owner- Apportionment-Priority of rights-

Rent paid to holder under defective title- improvements made by bonafide holder- Doctrine of
Lis Pendens- Fraudulent transfer and part-performance.
Unit-III

Mortgages of immovable property: Definition- Kinds of mortgages and their features- Rights and
liabilities of mortgagor and mortgagee-priority of securities –Marshalling and contribution-
charges.

UNIT-IV

Sale of immovable property : Rights and liabilities of seller and buyer before and after
completion of sale- Difference between sale and contract for sale; Leases of immovable
property: Definition- Scope-creation of lease- rigths and liabilities of lessor and lessee-
Determination and holding over; exchange: Definition and mode- Actionable claims; Gifts:
scope – meaning – mode of transfer- Universal gifts-onerous gifts

UNIT-V

Law of Trusts with fiduciary relations: Definition of Trust and its comparison with others
relationship like debt, ownership, bailment, Agency and Contracts; kinds of trusts- creation of
trust-Appointment of Trustees-Duties and liabilities of Trustees- Rights and powers of Trustees-
Disabilities of Trustee- Rights and Liabilities of the Beneficiary- vacation the office of trustee
and extinction of trusts.
UNIT-I

General Principles of Transfer of Property by act of Parties inter-vivos- concept and meaning of
immovable property- Transfer of immovable property- persons competent to transfer- operation
of Transfer- Conditions restraining alienation and restrictions repugnant to the interest created-
rule against perpetuity and exceptions-Direction for accumulation- Vested and Contingent
interest, void conditions, Rule of acceleration, fulfillment of conditions subsequent.

General Principles of Transfer of Property by act of Parties inter-vivos-

Transfer of property Act 1882 came into force on 1st July, 1882. The two objects of the Act-

• Regulate transfer of property between living persons;

• Complete the code of contract law for immovable property.

Act does not purport to be exhaustive. It doesn’t cover each and every aspect of transfer of
property.

Broadly two types of property transfers

1. Transfer of property by operation of law

 Inheritance
 Insolvency
 Forfeiture
 Sale in execution of decree
 By will
2. Voluntary transfer of property by act of parties (inter vios):

Inter vios:- it is a Latin term which means “among the living”, usually referring to the transfer of
property by agreement between living persons.

 Sale
  Mortgage
 Gift
 Exchange
 Charge.

Transfer of property applies only to this 2nd category.

HISTORY OF THE ACT:-

Before The Transfer of Act of 1882, came into force, the transfers of immovable properties in
India were governed by the principles of English Law and equity. A few points were also
covered by the regulations and Acts passed by the Governor-General-in-council.

In absence of any specific statutory provision, the Anglo-Indian Courts had to fall

back to English law on real properties.

Sometimes the court had to decide the case-law became confused and conflicting. To remedy
this state of affairs, a Law commission was appointed in England to prepare a code of
substantive law of transfer of properties for India.

The law commission consisted of Lord Romily, M.R. Sir Edward rany, Chief Justice of Bengal,
Lord Sherbrooke, Sir Robert Lush and Sir John Maclood, who had assisted Lord Macaulay in
drafting the Indian Penal Code. A draft Bill was prepared by this commission and it was sent to
India by the Duke of Argyll, who was then the secretary of State For India.

It was introduced in the Legislative council in 1877. The Bill was then referred to a select
Committee and it was also sent to the Local Governments for publication and criticism. The Bill
was criticized on many points and ultimately the Bill was redrafted and referred to a third law
commission consisting of Sir Charles Turner, Chief Justice of Madras, Sir Raymond west, and
Mr. Whitely stokes, Law Member of the council of the Governor-General. Then the final bill was
passed into law on the 17th February 1882.

The Transfer of Property Act, 1882 was amended nine times from 1885 to 1927 and four times
from 1928 to 2002 but no general revision of the Act was undertaken.
Title and extent (section 1) – came into force on the 1st July 1882.

It extends to whole of India except the territories which immediately before the 1st November
1956, were comprised in Part B states or in the states of Bombay, Punjab and Delhi.

Object and scope of the Transfer of Property Act, 1882.

Object: - two folds

Firstly to bring the rules which regulate the transmission of property between living persons into
harmony with the rules affecting its devolution upon death and thus to the complement the work
that commenced with the framing of the law of intestate and testamentary succession and

Secondly to complete the code of law of contract, so far as relates to immovable property.

Scope of the Act

It is limited to transfer of property by act of parties. It does not apply to transfer of property
which takes place by operation of law –( it is a legal term that indicates that a right or liability
has been created for a party, irrespective of the intent of that party, because it is dictated by
existing legal principles, ex- if a person dies without writing a will, his or her heirs are
determined by operation of law)

Salient features of the Transfer of Property Act, 1882.

1. Contains 8 chapters and 137 sections with one schedule

2. Aimed at amending the law relating to transfer of property by the act of parties.
3. Section 1 states about title and extent
4. Section 2 repeals certain enactments
5. Section 3 defines and explains the terms- immovable property, instrument, attested,
registered, attached to earth, actionable claim and a person is said to have notice.
6. Chapter II from section 5-53 explains various aspects of transfer of property.
7. It also defines transfer of property, what may be transferred , types of transfer, transfer to
unborn child, vested and contingent interest, election, apportionment of periodical
payments etc.
 8. It states about transfer by ostensible owner, unauthorized person, co-owner and joint
transfer and its implications.
9. Chapter-III from section 54-57 deals with sale of immovable property. Defines sale, how
it is made and rights and liabilities of buyer and seller, marshaling, power of court etc.
10. Chapter-IV consists of section 58-104 deals with mortgage and charges, rights and
liabilities, kinds f mortgages, etc
11. Chapter-V section 105-117 deals with lease and other matters of lease.
12. Chapter VI section 118-121 deals with exchange of immovable property and exchange
of money.
13. Chapter VII deals with section 122-129 – gifts.
14. Chapter VIII deals with section 130-137 – matters relating to transfer of actionable
claims.

Whether the act is exhaustive?

This Act is not exhaustive. It does not profess to be complete code. It does not contain complete
law for all kinds of transfer of property in India.

Whether the act is retrospective?

Ex post facto or backward-looking. Retrospective effect means that the provisions of the Act
apply to the matter prior to the passing of the Act.

No the act is not retrospective.

Meaning of Property.

The term property is derived from the Latin term ‘Properietat’ and the French equivalent term is
‘Proprius’ which means a thing owned.

Property can be defined as being the right to possess, use, enjoy and dispose of a thing. The thing
mentioned does not always have a tangible or physical existence. It may be an easement or
anything else that can become the subject of private ownership.

To sum up, property is indicative and descriptive of every possible interest which a person can
have.
Nature of Property:-

In Transfer of property Act, 1882 the word property has been used in any one of the following
senses:

1. Tangible material things e.g. land and houses, furniture and jewellery and pictures.

2. Rights which are exercised over material things e.g. right to enjoy and possess, right to sell or
to make a gift of things.

3. Rights which are not exercised over any material things, e.g. a right to repayment of a debt.

Kinds of property:-

1. Real property or personal property:- is land or building or any thing permanently attached
to or forming part of it.
Personal property:- it comprises all forms of property other than real property.

2. Tangible property or intangible property

Chattels are regarded as personal property, they are classified into
a. Tangible movables and tangible immovable.
Tangible movable chattel is any physical object which can be seen felt and touched
that is neither land nor a permanent fixture to land, for example goods like a table, a
book, a watch a rupee.
But land is a tangible immovable property.
Movable property which is intangible may be called, ‘intangible movable chattel,’ ex
– copyright, trade mark, patent goodwill.
3. Corporeal property and incorporeal property.
Corporeal property: is the right of ownership in material things.
4. Movable property or immovable property.
Corporeal property is classified into movable and immovable and they are called chattels
and land in English Law.
 a. Movable property:- means all property that is not attached to land or permanently
fastened to land or building and things served from the land.
Ex:- electricity, insurance policy, fruit of trees, government promissory notes, royalty,
right to worship.
b. Immovable property:- the word immovable means permanent fixed, not liable to be
removed and the property must be attached to property permanently.

Section 3:- it contains definition of immovable property, instrument, attested, registered,

attached to earth, actionable claims, and notice.

Immovable property:- this definition is neither clear not complete.

• Immovable property excludes standing timber, growing crops or grass.

• It is not clear as to what it includes.
• In any Act, if the meaning of the word is not given clearly, the meaning of the
word may be found in the General clauses Act, 1897, if given there.
• According to section 4 of the General clauses Act, 1897, immovable property
includes land, benefits to arise out of land and things attached to the earth.
• But this definition is also not clear.
• The expression things attached to earth is defined in T.P. Act 1882 which is not
defined under General Clauses Act, so here we shall consider the definition on the
basis of two acts.

Immovable property includes:-

1. Land
2. Benefits to arise out of Land, and
3. Things attached to the earth, i.e
i. Things embedded in the earth
ii. Things attached to what is so embedded in the earth.
iii. Things rooted in the earth except-
a. Standing timber,
 b. Growing crops or
c. Growing grass.

Land:- Land means surface of the earth.

 It included everything upon the surface of land, under the surface of land and also above
the surface of land.
 Anything upon the land, so long as it is not removed from there, shall be part of the land.
 Thus soil, mud, water collected in pond, water flowing in the river.
 Everything under the surface of the land like sub-soil, mineral, coal or gold mines etc.
underground streams of water.
 The space which is above the land is also part of land and is an immovable property.

Benefits to arise out of land:-

The benefits which a person gets from land, is also an immovable property. It is called beneficial
interest or beneficial right.

Beneficial interest in a property is called intangible or incorporeal property. The benefit which a
person gets is called tangible immovable property.

Things attached to the Earth:-section 3 defines

It means

(i) things embedded in the earth

(ii) thing attached to what is so embedded in the earth,
(iii) thing rooted in the earth.

(i)Things embedded in the earth:-

Things which are fixed firmly in the earth and become part of the land are things embedded in
the earth. Ex:- houses, buildings, electricity poles are immovable properties because they are
things embedded in the earth.

Walls and houses are not just placed on the surface of the land, the surface of the earth is dug
deep and thereafter the whole structure is fixed permanently. Where the things are just placed on
the surface of the earth without any intention to make them part of the land, the things may not
be immovable properties even if they appear to be fixed in the land.

Ex. Heavy things such as anchor, road-roller or a heavy stone placed on the land may go two or
three feet deep into the earth. It is not called immovable properties.

ii) Things attached to what is so embedded in the earth:-

where a thing is attached to something which is embedded in the earth for its permanent
beneficial enjoyment, the thing so attached would also become immovable property.

Doors, windows or shutters of a house are attached to its walls for permanent enjoyment of that
house.

Things imbedded in the earth are immovable properties because they become part of the land.

Things permanently attached to what is so embedded would also be part of a thing which in itself
is a part of land. Accordingly, doors or windows are regarded as part of the house which is part
of the land.

However, it may be noted that the thing attached must be (a) attached permanently and must also
be (b) attached for the beneficial enjoyment of the house or building.

Things attached without any intention of making them a part of the house or building would not
be immovable properties. Like electric bulbs, window –screens, articles etc.

iii) Things rooted in the earth:-

Trees, plants or shrubs which grow on land are rooted in the earth. With the help of their roots,
they keep themselves fixed in the earth and become part of the land. Hence they are called
immovable properties, but there is an exception to this general rule. Standing timber, growing
crops and grass, though rooted in the earth, are movable properties.

Standing timber :- standing timber is movable property. A green tree rooted in the earth is
called a ‘standing timber’ provided its woods are generally used for timber purposes.
If there is a tree, the woods of which are fit to be used for making doors, windows furniture the
tree shall be treated as standing timber.

Ex:- sheesham, neem, babool or teak trees are used for making furniture is held as movable
property.

Fruit bearing trees are not standing timber. Fruit-bearing trees are immovable property. Ex:-
Mahua, date-tree, palm trees etc.

Mango tree is a fruit as well as timber tree so it depends upon the intention of the owner whether
it is movable or immovable.

Case Law:-

Shanti Bai V. State of Bombay (AIR 1958 S.C.532)

Hon’ble Supreme Court held that if the owner of a tree is interested in the further vegetative
growth of the tree ( i.e. intends to keep the alive) it is a tree (immovable); but if it is intended that
the tree is to be cut reasonably early, the tree is a standing timber (movable).

Growing crops and grass:-

Growing crops and growing grass are movable properties. Growing crops means crops standing
in the field. The crop of wheat/paddy/vegetables crops of potato etc. are therefore movable
properties.

Like crops the growing grass rooted in the earth is also a movable property. It shall be fodder for
animals hence it is movable.

Examples of immovable property.

1. Beneficial interests arising out of land, for example, right of way, or an easement.
2. Rights under lease or tenancy.
3. Rights to extract gold, silver, coal or other minerals from mines.
4. Right of fishery i.e. right to catch and collect fish from a pond, Tank, lake or river.
 5. Right to ferry, i.e. right of transport through rivers.
6. Right to collect dues from fair or hat.
7. Right to hold exhibition or fair on one’s land.
8. Right to take forest produce e.g tendu leaves etc. and soil for making bricks.
9. Right to collect lac from its trees.
10. Mortgage-debt i.e a loan secured by mortgaging an immovable property.
11. Equity of redemption
12. Office of the hereditary priest of a temple and also its emoluments.
13. Right of a maha Brahmin to receive dues at a funeral.

MOVABLE PROPERTY:-

A property which is not immovable is movable. Movable property has not been defined in the
Transfer of Property Act Section 3 of the Act excludes standing timber, growing grass and the
crops from the definition of immovable property. This simply means that standing timber,
growing grass or crops are movable property because what is not immovable may be movable.

The general clauses Act 1897 defines movable property as ‘property of every description except
immovable property’

Section 2(9) of the Registration act 1908, movable property includes standing timber, growing
crops and grass, fruits on trees, fruit-juices in the fruits on the trees and the property of every
description except immovable property.

Following properties are movable property.

1. Standing timber, growing crops and the growing grass.

2. Things place on the land or attached to it without any intention of making them a
permanent part of the land. Ex:- machinery attached to land but capable of being shifted
from that place is movable property.
3. Government promissory note.
4. Royalty or copyright
5. Right of worship ie right to offer prayers.
6. Right to receive offering in cash.
 7. Payments made to pandas by the pilgrims
8. Decree for the arrear of rent.
9. Decree for sale of any immovable property on a mortgage.
10. Right to get maintenance allowance even if its payment is a charge on some immovable
property.
11. Right to enjoy the usufruct (benefit) of fruit trees. Ex. Right to enjoy palm nuts.

Importance of the Nature of Property:-

Property may be movable or immovable but while transferring the property the due required
procedure should be followed.

Especially in immovable property, because if required procedure is not followed then the entire
transfer of property in invalid and becomes void in law.

Instrument:-

Means a legal document. Where a property is transferred through any written document, that
document is called instrument.

Section 3 of the Act :- as a non-testamentary instrument. The act excludes testamentary

document. (i.e. a document of will)

Will takes place not after the death of the testator and T.P. Act is only applicable for transfer
between living persons.

Attested:-

A property may be transferred either orally i.e by delivery of possession or through a written
document. Where a property is transferred through document, the transferor is said to execute
the deed of transfer. Such transferor is called the executant.

• It is necessary under the law that two persons must affirm, or become witness to the fact
that executant, and nobody else, has written or signed the deed of transfer. This act of
giving evidence or becoming witness is called attestation and when these persons have
done so, the deed is said to have been attested.
 • The witnesses are called attesting witnesses.

Object of attestation,

2 fold.

1. It confirms that executant and none else have executed the document.
2. It also confirms that the executant has executed the document with free consent and there
was no force, fraud or undue influence.

Case law :-

Kumar Harish Chandra V. Bansidhar Mohanty ( AIR 1965 S.C. 1738)

In this case there was a mortgage in which the money was advanced not be the mortgagee
himself but by a third party.

The deed of mortgage was attested by this third person who had advanced (given) the money.

It was held by the Supreme Court that although the money lender (who gave the money to
the mortgagee who finally gave it to the mortgagor) was a person interested in the transaction
of mortgage but could not be regarded as a party to it.

Accordingly the attestation by the money lender was held valid.

Essential of valid attestation.

1. The attestation must be done by two or more person.

2. Each attesting witness must
a. See the executant signing the instrument or fixing his mark on it.
b. See some other person signing the instrument in present of and under the direction of
executant.
c. Has received from the executant a personal acknowledgement of his signature or
mark or of the signature of such other person.
3. Each attesting witness has signed the instrument in the presence of the executant.
 REGISTERED:-

Registration is a process through which a document is officially recorded. It takes place under
the provisions of the Indian Registration Act, 1908. When a document is registered, it becomes
an important and valuable evidence regarding the statements made in the document.

Under the Transfer of Property act, certain transfers must be made only through a registered
deed.

Section 17 of the Registration Act provides a list of documents which are compulsorily
registerable. On the other hand, there are certain documents, dealt with under section 18 of the
Registration Act, the registration of which is optional.

➢ Registration should be written on the stamp papers of prescribed value.

➢ The executant puts his signature and two attesting witnesses attest the execution.
➢ It is presented before the sub-Registrar or Registering officer. He makes required
verification.
➢ Registration fee is paid. And the document is then recorded in prescribed register.
➢ The sub-Registrar certifies on the back of the deed that the document has been duly
registered on the date and time mentioned by him.
➢ After fixing the official seal, the deed is returned to the parties concerned.

ACTIONABLE CLAIM

Sec. 3.: “actionable claim” means a claim to any debt, other than a debt secured by mortgage
of immoveable property or by hypothecation or pledge of moveable property, or to any
beneficial interest in moveable property not in the possession, either actual or constructive, of
the claimant, which the Civil Courts recognize as affording grounds for relief, whether such
debt or beneficial interest be existent, accruing, conditional or contingent;

Actionable claim means:

1. Unsecured money debt, and

2. A claim to beneficial interest in movable property not in possession of the claimant

a) The claim is to some movable property

b) The movable property is in possession of another person

c) The beneficial interest or the right of possession of the claimant is recognised by the
court.

Instances of actionable claims:

1. Claim for arrears of rent

2. Claim for money due under insurance policy

3. Right to get back the purchase-money when the sale is set aside.

NOTICE

“A person is said to have notice” of a fact when he actually knows that fact, or when but for
wilful abstention from an inquiry or search which he ought to have made, or gross
negligence, he would have known it.

Notice means knowledge or information of a fact.

Actual Notice:-

It means direct or express knowledge or information about something.

➢ It should be definite.
➢ A notice must of such a nature that the normal man should take seriously.
➢ Only the knowledge of the parties interested in the transaction is actual notice
regarding that transaction.
➢ The knowledge or information must be about or related to the transaction in
question.
Constructive Notice:-

It is based on equity.

Where a person actually does not know anything a fact but the court treats that under the
circumstances he must be deemed to have knowledge of that fact, the notice is constructive.

LLOYDS BANK LTD V. P.E GUZDER AND CO.

G deposited the title-deed of this property with a Bank N to secure his overdraft (loan from
bank). This was, therefore, mortgage by deposit of title-deed in which the only security of
repayment of loan was the possession of the title-deed by the person who gave money.

After sometime G asked the bank N that he was intending to sell the property and the purchaser
wants to see the title-deed and after inspection of the deed by purchaser he would return the same
to the bank. The bank relying upon the statement gave the title-deeds to G. But after taking the
title-deed G deposited it in another bank L and took another loan.

Thus it was second mortgage by G by depositing the same title deed. The question arose
whether the prior loan given by N was to be secured first or the second loan given by L which
was at present in possession of bank L.

It was held that since this was a mortgage by deposit of title-deeds in which the only security for
the repayment of loan is the possession of the title-deeds, bank N committed gross-negligence in
parting with the title-deed.

N cannot be allowed to plead that it has no notice that G would take the deeds and deposit it in
another bank. Thus, the mortgage of bank N was post-poned to mortgage of bank L.

SECTION 4:- ENACTMENTS RELAING TO CONTRACTS TO BE TAKEN AS PART OF

CONTRACT ACT.

SECTION 5. TRANSFER OF PROPERTY.

Section 5 of the transfer of property Act defines the term transfer of property in the following
manner
“Transfer of property means an act by which a living person conveys property in present or in
future, to one or more other living persons or to himself and to transfer the property is to perform
such act”.

i. Transfer of property is an act:-

Transfer of property is an activity, something is done by the person who want to transfer his
property to another.
ii. Living person.
Transfer of property is to be made by a living person. He is called transferor. He may be human
being or juristic person like company, firm, etc., he should be a competent person to contract.
iii. Conveys:-
There must be conveyance in every transfer of property. It means any act of the transferor by
which certain new titles or interest are created in favour of the transferee.
iv. In present or future:-
The transferor can make arrangement that the property is vested or accures to the transferee
immediately after the completion of the transfer. He can also vest the interest of the property to a
future date.

v. property :-
property means it has a very wide meaning and included properties of all description. The
property must be present not future property.

vi. To another living person.

There must also be another person to whom the property may be transferred. He is called
transferee. He need not be a competent person, but should be inexistent during transfer.

EXCEPTIONS:
1. Family settlement: It is not a transfer of property.
When a family settlement takes place, the already existing specific shares of the members of the
family are defined and separated in order to avoid any possible dispute.
It simply acknowledges and defines the title of each member.
In Ramdeo Foods products Pvt. Ltd v. Arvindbhai Rambhai Patel (AIR 2006 S.C. 3304)
A memorandum of understanding was actuated (executed) to resolve the dispute between the
members of family. The Supreme Court held that such memorandum agreed between the family
members can be treated as family settlement and the court cannot interfere with this.
Accordingly it was held as family settlement and not as a transfer of property.

2. Compromise:
means agreement for the settlement of doubtful claims between the parties in respect of some
property. Like family settlement here too the titles of the parties are already existing. A
compromise deed is not a deed of transfer.

3. Partition:
it is not a transfer of Property. It means separating the parts of co-owned property. No
conveyance is involved in the process as the conferment of a new title is not necessary.
In Mohar singh v. Devi Charan (AIR 1988 S.C. 1365)

The Supreme Court explained the legal nature of a partition in the following words.
“Partition is not actually a transfer of property, but would only signify the surrender of a partition
of a joint right, in exchange for a similar right from the other co-sharer.”
4. Surrender:
it is not a transfer of property. It means merging of a lesser (smaller) interest with a greater
interest in such a manner that the greater interest is not enlarged.

Ex: A is a landlord and B is his tenant. Ownership is a larger interest. Tenancy is a smaller
interest. If A vacates the house before expiry of the term of tenancy it would amount
surrendering of his right of residence. The is no creation of any new title in favour of the
landlord.
5. Charge:
➢ Charge is not a transfer of property.
➢ Charge is created on a property for securing a payment out of that property.
➢ When the property of a person is charged for securing certain payments e.g. maintenance,
it is simply securing personal obligation out of his property.
➢ A charge is therefore, not a transfer because the only right created under it is a right to
payment out of the property subjected to the charge.

Which does amount to Transfer of Property?

1. Release:
It is a transfer of property. If a larger interest falls into a smaller interest in such a way that
smaller interest is enlarged, then for the holder of smaller interest there is creation of a new title
or interest. Since some new titles or interest are added to his already existing interest, there is
conveyance hence it amounts to
transfer of property
2. Relinquishment:
It means giving up one’s rights or interests. Its effect is extinction of one’s rights in a property;
Since relinquishment connotes the extinction of a right therefore, so that it may amount to a
transfer of property as defined in section 5 of the Act.
Relinquishment deed is a one of the modes of transfer of property. By way of relinquishment
deed, one or more joint owners can give up/relinquish his/their share in a immovable property to
one or more joint owners.

SEC. 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:

Non-transferable under any other law

Under Hindu law:

➢ Coparcener property is regarded as non-transferable and there is restriction on the transfer

of such property.

➢ A property dedicated to god, being of religious use is also non-transferable under Hindu
law.

➢ Right of performance of Pooja.

Under Muslim Law:

➢ Waqf properties and the office of mutawalli.

Under civil procedure code:

➢ It prohibits the attachment of necessary cooking vessels and the tools of artisans etc.

2. Non-transferable under sec.6:

Clause (a) : Spes-successionis: expectation of succession (through will or inheritance)

The things referred to in this clauses as non-transferable are:

1) The chance of an heir succeeding to an estate,
2) The chance of a relation obtaining a legacy (a gift by will) on the death of a kinsman, and
(3) any other mere possibility of a like nature.
The possibilities referred to in this clause are bare or naked possibilities and not possibilities
coupled with an interest such as contingent remainders and future interest.

1. Chance of an heir apparent.

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.
 2. Chance of Legacy
The chance of a relation receiving a legacy is a possibility even more remote than the chance of
succession of an heir, and therefore, is not transferable.

3. Other possibilities of 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.

(b) Mere Right of Re-entry: -

Section 6(b) provides that mere right to re-entry cannot be transferred.

Where a person gives the possession of his property to another for a certain period and is
afterwards entitle to get it back, his right of entering into the possession of that property once
again, is technically called as the right of re-entry.

( c) Easement apart from dominant heritage:

Easement is a right which exists for the beneficial enjoyment of a land and is exercised upon the
land of another person.

The land or tenement (house) for whose beneficial enjoyment this right exists is called dominant
heritage and the land or tenament for whose beneficial enjoyment this right exists is called
dominant heritage and the land or tenement upon which the right is exercised is called servient
heritage.

This section provides that an easement cannot be transferred apart from the dominant heritage.
But, when the dominant heritage itself is transferred, the easementary right appurtenant
(attached) to it is by itself transferred together with the dominant heritage.

(d) Restricted interest:

An interest in property restricted in its enjoyment to the owner personally has been made non-
transferable.
As a matter of fact, such interest are created in favour of a person only due to his personal
qualifications. Such interest are therefore, purely personal in nature and may be called personal
rights which are non-transferable.

Ex. Religious offices of Shebait or Pujari or Mahant of a mutt etc.

(dd) Right to future maintenance:-

Where a person is entitled to receive maintenance allowance, it is his personal right because it is
given or is promised to be given in future solely for his own benefit. As such, the right of future
maintenance is a restricted interest which is non-transferable under section 6(dd).

(e) Mere right to sue:-

Under section 6(e) right to sue means right to sue for the claim of any uncertain sum of money.
Claim for an uncertain sum of money arises where the claim is for any amount which is not
fixed.

So right to sue for uncertain or indefinite sum of money is not transferable.

(f) Public office and salary of public officer:-

There is prohibition on the transfer of a public office and the salaries of public officers. To
ensure the dignity to the office held by a person appointed for qualities personal to him and
getting salary for due discharge of his pubic duties.

(g) Pensions and stipends:-

The stipends allowed to military, naval, air force and civil prisoners of the government and the
political pensions cannot be transferred.

The pensions of the Government servants whether civil or military are non-transferable on the
same principle laid down in clause (f).
(h) Transfer opposed to nature of interest etc:-

No transfer can be made under the following cases.

i. where the transfer is opposed to the nature of interest created thereby.

ii. Where the transfer is for an unlawful object or consideration.
iii. Where the transfer is made to a person who is legally disqualified to be transferee.

(i) Untransferable Right of Occupancy

(a) : Spes-successionis: expectation of succession (through will or inheritance)

Transfer for the benefit of the unborn person

Section 5 of the transfer of the property Act says that the transfer takes place only between the
two living persons. So a transfer to a person who is not born is valid?

Meaning of an unborn person

An unborn person means a person who is not in existence even in the mother's womb
so property can been transferred to a person who is in the mother's womb, but property cannot be
transferred to a person who is not even in the mother's womb because such person is called as
unborn person. Legally speaking every transfer of property involves transfer of interests. When a
property is transferred the transferor divests all is interest and vests it immediately in the
transferee. So if a property is transferred directly to a person who is not in existence, the interest
so transferred shall be divested or be away from the transferor and wait for the transferee to
come into existence, to whom it would vests.

Two rules:
Property cannot be transferred directly to an unborn person but it can be transferred for the
benefit of an unborn person. Section 13 provides that property can be transferred for the benefit
of an unborn person subject to following conditions:
• Transfer for the unborn must be preceded by a life interest in favour of a person in existence
at the date of the transfer, and
• Only absolute interest may be transferred in favour of the unborn.

i. Prior Life-Interest.
The transfer for the benefit of an unborn must be preceded by a life interest in favour a living
person in existence at the date of the transfer. Where a person intends to transfer certain
properties for the benefit of an unborn person, such unborn is the ultimate beneficiary. But since
such unborn is not in existence at the date of the transfer, property cannot be given to him
directly. There must be prior life interest in favour of living person so that such living person
holds the property during his life and till that unborn would cum into existence. After the
termination of his life interest. The interest should pass on to the unborn person, who by that
time comes into existence.
eg., A transfers his house to X for life and thereafter to unborn named B. B is the son of A. Here
A cannot make direct transfer to his son therefore A has to make direct transfer of his life interest
in favour X after his death the interest of that house shall pass on to unborn named as B.

ii. Only Absolute Interest may be Given.

Only absolute interest in the property may be transferred in favour of an unborn person. Limited
or life interest cannot be transferred to an unborn person. Transfer of property for life of an
unborn person is void and cannot take effect. When a property is transferred in favour of an
unborn, the transferor first gives a life interest to an existing person. After transferring this, he
retains with him the remaining interest of the property the remaining interest with interest
withthe transferor must be given to the unborn so that the termination of prior life interest, the
unborn gets the whole i.e., absolute interest in the property.
eg., A transferred his properties to X for life who is unmarried and then to the eldest child of X
absolutely. The transfer in favour of edlest child of X is vaild.

Conclusion
The meaning of transfer of property is not exhaustive according to Transefer of Property so we
have to depend upon on the General Clause Act for the better understanding of the meaning we
have to adopt both the defination of Transfer of Property Act and General clause Act. Direct
transfer to unborn person is void. So in order protect unborn interest indirect transfer is valid and
it should be an absolute transfer of interest.