Introduction

• The Transfer of Property Act, 1882 (TPA) provides for law relating to transfer of property by act of parties.
  • Section 6 of TPA enumerates the kinds of property which cannot be transferred.
• The reasons for placing restrictions on transferability are
  • Public policy;
  • The right is personal to one exercising it;
  • The right is intrinsically connected to larger property or right which is not being transferred.

What Property cannot be Transferred?

• Section 6 of TPA provides for property which cannot be transferred – The property which cannot be transferred is as follows:
  • Spes Successionis: This would mean chance of a person obtaining a right in the future, clause (a) of Section 6 mentions the following possibilities:
    1. the chance of an heir apparent succeeding to an estate;
    2. the chance of a relation obtaining a legacy on the death of a kinsman;
    3. any other mere possibility of a like nature.
       • The policy behind this is that a person can only transfer what he owns.
       • Therefore, unless the heir succeeds to the estate of predecessor, any transfer by him is a mere possibility.
  • Mere right to re-entry:
    • Next right which cannot be transferred is mere right to re-entry under Clause (b) of Section 6.
    • If there is a right to re-entry on breach of a condition, this mere right to re-entry cannot be transferred to anyone.
    • It can only be exercised by the owner of the immovable property.
  • Easementary Rights:
    • Clause (c) of Section 6 of TPA provides that an easement cannot be transferred apart from dominant heritage.
    • An easement is the right which the owner of the land (dominant heritage) possesses for proper enjoyment of right over the adjoining property (servient heritage) like right to way.
    • This right cannot exist apart from the dominant heritage and hence cannot be transferred.
  • Property Restricted in Enjoyment to Owner
    • Clause (d) provides that if the interest is restricted in enjoyment to the owner only, it becomes non-transferable.
    • Examples of such rights are the maintenance granted to wife on divorce, alimony ordered to be paid on her judicial separation.
  • Right to future maintenance
    • Clause (dd) added by way of Amending Act of 1929 provides that right to future maintenance cannot be transferred.
    • The need for adding this clause was that even though transfer of right to maintenance was prohibited by virtue of clause (d), some Courts held that if the amount of maintenance were fixed by decree or agreement it could be transferred.
    • This clause was therefore introduced to protect this right created for the personal benefit of the qualified owner.
  • Right to sue
    • Clause (e) of Section 6 provides that mere right to sue cannot be transferred.
    • However, if the decree for damages has been passed it can be transferred as it is no longer a mere right to sue.
    • A right to recover mesne profits is a mere right to sue and is not transferable.
    • The Privy Council in the case of Manmatha Nath Mullick v. Hedait Ali (1931) laid down the difference between actionable claim and a mere right to sue.
  • Public office and salary attached to public office
    • Clause (f) of Section 6 provides that public office and salary attached to it cannot be transferred.
    • An office granted to a person is personal to the incumbent and hence cannot be transferred.
  • Stipends allowed to military, naval, air force and civil pensioners
    • Clause (g) of Section 6 of TPA provides that stipends allowed to military, naval, air force and Civil pensioners of Government and political pensions cannot be transferred.
    • An example of this clause can be found in S. 11 and S. 12 of Indian Pensions Act, 1871 read with S.6 of Transfer of Property Act which prohibits the voluntary or involuntary alienation of pensions.
  • Three categories of transfer that cannot happen
    • Clause (h) of Section 6 provides for three categories of transfer that cannot happen.
    • Transfer that is opposed to nature of the interest affected thereby
      Res nullius, Res communes and res extra commercium fall under this. This would mean things which are owned by none like air, water, land etc.
    • Transfer for unlawful object or consideration under S. 23 of Indian Contract Act
    • Transfer to a person legally disqualified to be transferee
      An example of this is found in S. 136 of the TPA which provides for the incapacity of officers connected with Courts of Justice.
  • Following types of transfers are not authorized under Section 6(i) of TPA:
    • Tenant having untransferable right of occupancy
    • Farmer of an estate in respect of which default has been made in paying revenue
    • Lessee of the estate under the management of Court of Wards.

Conclusion

Under TPA, the general rule as enunciated by Section 6 is that property may be transferred. However, there are certain exceptions based on principles of public policy. These exceptions are provided from Clause (a) to Clause (i) of Section 6 of TPA.