By its very existence, society mandates interaction, exchange or transfer of information, ideas, materials and whatnot. A property (movable or immovable) is transferred from one person to another under various different situations and circumstances and for different values. The transfer may be a gift, an inheritance or an asset acquired by paying full value. Transfers of immovable property are governed by the Transfer of Property Act, 1882.
It is essential to understand the term ‘transfer of property’ in order to understand the transferability of those property and related rights. Section 5 of TOPA defines Transfer of Property 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.
In this section ‘living person’ includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to the transfer of property to or by companies, associations or bodies of individuals.
Section 6 of the transfer of property act lays down that property of any kind may be transferred except those properties that are specifically provided by the Act or by any other law which is in force for the time being. This exception can be provided by law and not by judgment or discretion. The following provisions under Section 6 describe the kinds of properties and the rights related to property that cannot be transferred:
- Chance of heir-apparent succeeding to an estate, chance of a relation obtaining legacy on the death of a kinsman, or any other mere possibility of a like nature.
- A mere right of re-entry for a subsequent breach of the condition cannot be transferred to anyone except for the owner of the property affected thereof.
- An easement apart from the dominant heritage cannot be transferred.
- All the interests in the property restricted in its enjoyment to the owner personally cannot be transferred by him.
A right to future maintenance, in whatsoever manner it arises, secured or determined, cannot be transferred.
- A mere right to sue cannot be transferred
- A public office nor can the salary of a public officer (irrespective of whether it is payable before or after) cannot be transferred.
- Stipends allowed to the military, air force, naval, civil pensioners and political pensions cannot be transferred.
- No transfer can be made
- As far as it is opposed to the nature of the interested of the affected thereby or
- With regard to an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act or
- To a person who is legally disqualified to be a transferee
Nothing in this section shall be deemed to authorize a tenant having a transferable right of occupancy, the farmer of an estate has defaulted 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.
Spes successions mean exception of succession. it includes the following:
a) Chance of an heir-apparent:
Heir apparent is that person who would be the heir if he survived the propositus and if the propositus dies intestate. Propositus is a deceased person whose property the heir apparent is going to inherit. This is only an exception which may be defeated by the act of some person having the present power to dispose of the property
Legacy means expectancy of getting a certain property under a will. Legatee under the last will only get the legacy. Expectancy to receive legacy is uncertain because the legatee may or may not survive the testation and the testator may have changed the name of the legatee in his last Will. Therefore, the chance of a legacy has been made non –transferable.
c) Any other possibility of a like nature:
If there is any other possible property or interest which is as uncertain as spes successions or legacy, that too will not be transferable. Any property which is merely a future uncertain possible interest should not be made a transferable property.
2) Clause (b): Right of re-entry:
A mere right of re-entry is meant a right to resume possession of the land which has been given to another person for a certain time. This is the right which a lessor reserves for himself after parting with the whole estate. The right of re-entry is that right which the lesser has against the lease of his property for breach, the lessor may re-enter. This right of the lessor is not transferable.
3) Clause (c) Easement:
According to section 4 of the Easements Act, 1882, an “easement is a right which the owner or occupier of a certain land possesses as such for the beneficial enjoyment of that land to do and continue to prevent something being done, in or upon or in respect of certain other lands which is not his own. An easement involves the existence of a dominant heritage (to which the benefit of the easement attaches) and a serviette heritage (which bears the burden of the easement). It, therefore, implies that an easement cannot be transferred without the property which has the benefit of it.
4) Clause (d) Restricted interest:
This means that a person’s right or interest which is only for his personal enjoyment cannot be transferred by him. Under this clause, the following kinds of interest have been held not to be transferable:
- A religious office
- Emoluments attached to the priestly office.
- A right of pre-emption.
- Service tenures
Right to future maintenance:
A right to future maintenance, in whatsoever manner arising, secured or determined can’t be transferred. The assignment of a decree for maintenance is valid if the maintenance has already become due but as to future maintenance, it is not valid. Arrears of maintenance, hence, can be assigned.
6) Clause (e) Right to Sue:
A mere right to sue can’t be transferred. Right to sue for a definite sum of money is an actionable claim and can be transferred but a right to sue for an indefinite sum of money cannot be transferred. Right of action for damages in tort or breach of contract are bare rights to sue, and therefore can’t be transferred. The social policy behind the non-transferability of mere right to sue for unliquidated damages is to prohibit the practice of gambling over litigation.
7) Clause (f) Public office:
The prohibition on the transfer of a public office or salary of a public officer is on the basis of public policy. A person is chosen to hold a public office for qualities personal to him and if he were allowed to transfer it, there is a possibility that public duties may not be discharged. The salary is given to a public officer for the purpose of upholding its dignity and the proper performance of his duties and, therefore, it is also not transferable.
8) Clause (g) stipends and Pensions:
The stipends allowed to military, naval, air-force, and civil pensions of the Government and political pensions cannot be transferred. Pension period or stipends granted not in respect of any right to the office are not transferable but an account of past service or particular merit. A bonus or reward is not a pension. Allowances granted for other consideration can be transferred.
9) Clause (h) Nature of Interest, Unlawful Object, Disqualification of Transferee:
Transfer Opposed to the nature of Interest
If the nature of the property to be transferred does not allow such a transfer, the transfer is not valid. Air, water, space, sea, light, etc are given by nature to be used by each individual on earth.
Transfer for an Unlawful Object or Consideration
A transfer cannot be made if it is for unlawful object or consideration as under section 23 of the Indian Contract Act, 1872, A consideration or object is unlawful, if- it is forbidden by law, or it is of such a nature that if permitted it would defeat the provisions of any law, or if it is fraudulent, or if it involves injury to the pension of another, or if it is immoral or opposed to public policy.
Legality Disqualified Transferred
A transfer to a person to be legally disqualified to be a transferee is not permitted. Under section 7 of the said Act, the transferee is required to be competent to contract and also should not have been disqualified legally.
Clause (i) Non-transferable Interests
Under this clause, any tenant having a non-transferable right of occupancy cannot transfer his interest as such tenant. The farmer of an estate in respect of which he has defaulted in paying revenue cannot transfer his interest as such farmer and the lessee of an estate under the management of the Court of Wards cannot assign his interest as such lessee to any other person.
The transferability of property is a 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.
With the immense growth in materialism, the term property has become an essential constituent in today’s world. Owning a property implies control over the particular property, it means enjoyment of a vast set of rights. It doesn’t just confine itself to ownership. Property is required to satisfy man’s needs and wants in a numerous way by way of means like sale, lease, gift, exchange, etc. With that being said, the understanding of what is transferable and what is not, as enshrined in Section 6 is primarily essential to deal with the different aspects of this particular Act.
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