Section 6 of the Transfer of Property Act, 1882.

“The Transfer of Property Act, 1882 contains specific provisions regarding what constitutes transfer and the conditions attached to it. According to the Act, ‘transfer of property’ means an act by which a person conveys property to one or more persons, or himself and one or more other persons. Such an act of transfer may be done in present or for future. The person may include an individual, company or association or body of individuals, and any kind of property may be transferred. A transfer of property passes immediately to the transferee all the interest which the transferor is then capable of passing in the property, unless a different intention is expressed or implied.[1]” The transferability of property is the general rule and non-transferability is an exception. Transferability of property is based on the maxim alienation rei prae fertur juri accrescendi which means to say that alienation is favoured by the law rather than accumulation[2]. The general policy is to promote free alienation and circulation of property rather than accumulation of it.”

Illustration: X transfers his property to Y for life and then to Z. The transfer in favour of Y is present (although he gets only life interest) but the transfer in favour of Z is future transfer.

Section 6 of the Transfer of Property Act: An Introduction.

“According to Section 6 of the Transfer of Property Act, property of any kind may be transferred. The person insisting non-transferability must prove the presence of some law or custom which restricts the right of transfer. Unless there is some legal restriction preventing the transfer, the owner of the property may transfer it. However, in some cases there may be transfer of property by unauthorised person who subsequently acquires interest in such property.”

“In case the property is transferred subject to the condition which absolutely restrains the transferee from parting with or disposing of his interest in the property, the condition is void. The only exemption is in the case of a lease where the condition is for the benefit of the lessor or those claiming under him. Generally, only the person having interest in the property is authorised to transfer his interest in the property and can pass on the proper title to any other person.”

“The rights of the transferees will not be adversely affected, provided: they acted in good faith; the property was acquired for consideration; and the transferees had acted without notice of the defect in title of the transferor. There must be a representation by the transferor that he has authority to transfer the immovable property. The representation should be either fraudulent or erroneous. The transferee must act on the representation in good faith. The transfer should be done for a consideration.” The transferor should subsequently acquire some interest in the property he had agreed to transfer. The transferee may have the option to acquire the interest which the transferor subsequently acquires[3].

“The exercise of option must be during the period of continuation of the contract and not afterwards. When all these conditions exist, the transferee becomes entitled to the interest, which is subsequently acquired by the transferor. It is to be noted that the transferee, acting upon the representation, has no right against any subsequent bonafide transfer for consideration.”

Exceptions for Transferring the Property: Relevant Case laws and legislations

 Section 6 of the Transfer of Property Act, 1882, includes a ‘company’ in the term ‘living person.’[4] Section 6 says that property of any kind may be transferred. Thus, an actionable claim is property and so is a right to re-conveyance of land.[5] General rule of Transfer of Property is that property of any kind can be transferred from one person to another. Exceptions can be classified into exceptions mentioned under section 6 of Transfer of Property Act and exceptions mentioned in other laws.

 It is open to the donor to transfer by gift title and ownership in the property and at the same time reserves its possession and enjoyment to herself during her lifetime. There is no prohibition in law that ownership in a property cannot be gifted without its possession and right of enjoyment.

Although a minor is not capable to contract a transfer to minor is valid[6].

 In Javerbai v. Kablibai[7], U by his will bequeathed his property to his wife and his brother J for life and after the death of the survivor to the male issue of J and in default to such person as J may appoint. The bequest to the male issue of J was void as J had no male issue and J exercised the power in favour of his daughter. It was held that the power of appointment was an independent gift and therefore valid.

In Brojanath v. Anandamaji[8], the testator bequeathed as follows: ‘My great grandson shall, when they attain majority, receives the whole to their satisfaction and they will divide and take the same in accordance with Hindu law. God forbid it, but should I have no great grandsons in the male line, then my daughter’s sons when they are of age, shall take the said property from the trust fund and divide according to Hindu sastri in vogue.’ It was held that the bequest to daughter’s son was dependent on the absence of, and not S to the great grant son and, therefore, void.

But it has been taken in V. Saheyanarayan v. Manikyam,[9] that the invalidity of the transfer must be judged with the original settlement and not by the voluntary act of the donees under the deed itself and persons who obtained the benefit of the deed cannot by his own volition, defect the terms of the deed, under which he obtained interests. In that case, the testator gave life interest to his son and on his death absolute right to the sons to be born. The son who was given life interest surrendered his right and he died subsequent to the death of the testator. On the date of surrender the sons were not born. It was contended that on surrender the gifts by the testator to the grandson becomes a gift to unborn children and hence void. It was this contention that was rejected by the High Court[10].

“As per Section 6 of the Transfer of Property Act, 1882, a spes successionis – a mere chance of succession cannot be a property capable of being transferred. Section 6(A) says that chance of an heir-apparent succeeding to an estate, the character of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.[11] The right transferred is an interest in property which is capable of enforcement at the instance of the transferee as it was at the instance of the examiner prior to the transfer. Such a provision, intended specially for the protection of the interests of the minor, must be read in harmony and consistently with the general provisions in section 6 of the Transfer of Property Act, 1882.[12]

 If there is an immovable property, which Mr. C is going to get, then Mr. C has a chance of being legal heir. If Mr. C assumes that he is the owner of the property and transfers the property to Mr. Z, that transfer will be considered to be invalid. Mr. C cannot transfer the property unless he gains the ownership of the property and the property belongs to Mr. C.

“A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby. [Section 6(B)] Illustration: A grants a lease of a plot of land to B with a condition that if B shall build upon it, he would re-enter. A transfers to C his right of re-entering in case of breach of the covenant not to build.

“The transfer is invalid for two reasons, one, the right is a personal licence and not transferable, second, the transferee could only use it for the purposes of a suit to enforce the right without acquiring any right in the property. But if A transfers the whole of his interest in the property, i.e., ownership along with the right of re-entry to C, the transfer shall be valid being a legal incident of the property.”

“An easement [Section 6 (C)] is a right to use, or restrict the use of land of another in some way. Examples of easements are rights of way, rights of light and rights of water. An easement encompasses the existence of a dominant heritage and a servient heritage. That is, there must be two parcels of land, one (the dominant heritage) to which the benefit of the easement attaches, and another (the servient heritage) which bears the burden of the easement. But technically an easement cannot exist in gross (independently of the ownership of land but only as appurtenant) attached to a dominant heritage. It follows therefore that an easement cannot be transferred without the property which has the benefit of it.[13]

A, the owner of a house X, has a right of way over an adjoining plot of land belonging to B. A transfers this right of way to C. The transfer is a transfer of easement and therefore invalid. But if A transfers the house itself, the easement passes on to C on such transfer.

“A and B are related. Court orders that A will pay maintenance expenses for B [Section 6(D)]. The future maintenance of this right cannot be transferred. A wife enjoys the right to maintenance in case the marriage does not work. This is her right to maintenance that she could use in future, if need be. Similarly, a Hindu widow also enjoys the right to maintenance; she will inherit a certain share in her deceased husband’s property.  However, this right is personal, will take in future and cannot be transferred. On the other hand, one can transfer one’s rights on the property earned as one’s maintenance right in the past.[14]

“Section 6 (e), Transfer of Property Act, 1882 also provides that ‘a mere right to sue cannot be transferred’. The use of the word ‘mere’ limits the transfers purporting to transfer nothing but the right to sue, and the transferee acquires no interest in the subject of transfer than the right to sue.[15] The right to litigate can be allotted, if the assignment is subsidiary to a transfer of property; the question then is whether the subject matter of the assignment is, in the view of the court, property with incidental remedy for its recovery or is there a mere right to bring an action either at law or in equity. The benefit of a contract can be transferred before breach as an actionable claim.[16] But a mere right to sue for damages surviving after breach cannot be transferred.[17]

Illustration: Mr. P has committed a wrong against Mr. Q and Mr. Q can sue Mr. P in court. Mr. Q has the right to sue. If Mr. P wants to transfer this right to Mr. R, that is not possible. Right to sue cannot be transferred.

“If you hold a public office such as judge, inspector, doctor, etc, then you cannot transfer your public office to anyone. A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.[18] The salary of a public officer is not transferable. As stated by Page Wood, V. C. in Corporation of Liverpool v. Wright:”

“Where the law assigns fees to an office, it is for the purpose of upholding the dignity and performing properly the duties of that office, and the policy of the law will not allow the officer to bargain away those fees to the appointer or anyone else.”

 If the office is not public, it would be transferable even though the discharge of its duties should be indirectly beneficial to the public. Stipends related to Military, Naval, Air Forces, Civil Prisoners, government pensions, etc are personal rights and cannot be transferred.”

Conclusion

“Transfer of Property is defined as 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 one or more other living persons, and ‘to transfer property’ is to perform such act ‘living person, includes a company or association or body of individuals, whether incorporated or not. The Transfer of Property Act embodies what is referred to as the backbone of civil law in India, and the notions in question, those of Transferable Property are key concepts with regards to the functioning of the civil litigations in the country. It is thus of critical importance that these notions are well understood by both lawyers and the parties concerned.”


[1] Conditions for a valid transfer of property by Ashish Gupta, https://economictimes.indiatimes.com/conditions-for-a-valid-transfer-of-property/articleshow/3834596.cms.

[2] Property of “any kind” may be Transferred, (n.d), Retrieved from, http://dolr.nic.in/Acts&Rules%5CTransferOfPropertyAct%281882%29.htm.

[3] T. Ramareddy vs The Tahsildar, 2000 (2) KarLJ 230.

[4] IT Act, 1961, S. 32A, ICI India Ltd. v. Dy. CIT, (2004) 90 ITD 258, 274 (Kol).

[5] Narasingariji v. Panaganti ,(1921) Mad WN AIR 1921 Mad 498.

[6] Ajudhia Prasad And Anr. vs Chandan Lal And Anr. on 11 May, 1937.

Equivalent citations: AIR 1937 All 610.

[7] Javerbai v. Kablibai, (1891) ILR 16 Bom 492.

[8] Brojanath v. Anandamaji, 8 Bom LR 208.

[9] V. Saheyanarayan v. Manikyam, AIR 1985 AP 139.

[10] Kayastha Pathsala Allahabad v. Mst Bhagwati Devi, AIR 1937 PC 4 : (1937) 1 Mad LJ 166.

[11] Jaya Ammal versus C.Subramaniyan, 2015 (3)CTC 603.

[12] Ashoka Marketing Ltd. v. Punjab National Bank, AIR 1991 SC 855.

[13] “Property of ‘any kind’ may be transferred.” LawTeacher.net. 11 2013. All Answers Ltd. 01 2019 https://www.lawteacher.net/free-law-essays/land-law/property-of-any-kind-law-essays.php?vref=1.

[14] Legally Speaking: Can You Transfer All Your Property by Sunita Mishra, https://www.proptiger.com/guide/post/legally-speaking-can-you-transfer-all-your-property.

[15] Jagannath Marwari v. Kalidas Raha, (1924) 3 Pat 575, AIR 1929 Pat 245.

[16] Manmatha Nath Mullick v. Sheikh Hedait Ali 59 IA 41, AIR 1932 PC 32.

[17] Abu Mahomed v. SC Chunder,(1909) 36 Cal 345, 11 IC 827.

[18] B. Ananthayya vs B. Subba Rao on 7 September, AIR 1960 Mad 188.


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