1st INTERNAL ASSIGNMENT

PROPERTY LAW

ANALYSIS ON SECTION 6 (a to i) OF TOPA, 1882

NAME :ASHAM SHARMA

PRN: 17010126491
Division :E, 2nd Year

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 INTRODUCTION

For the valid transfer of property, the property which has to transferred should be a
‘transferable property’. Generally, any kind of property can be transferred. But there are
certain exceptions which laid down the principles that such kind of property can’t be
transferred. These properties are referred to as non-transferable properties. If someone tries to
transfer these properties it is void. The certain exceptions are given in Section 6 of Transfer
of Property Act, 1882. There are two kinds of properties which can’t be transferred to anyone
whatsoever, these are:
1. Properties which can’t be transferred by any law, for the time being, in force in India

2. the properties which can’t be transferred otherwise as given in this particular Act.

Not transferable under any law means that there’s a specific law which are enforced to
restrict the transferability right of the property to anyone. For instance: Hindu Law, Civil
Procedure Act, Muslim law etc. An easy example of that is Hindu coparcenary property
which can’t be transferred.

Non-transferable under Section 6 of Transfer of Property Act, 1882

There are 9 clauses which are inserted in this section which enforces that the transfer of some
particular property is void, basically these are the exceptions which say this kind of property
can’t be transferred.

1. Spes Successionis [Clause 1] “The chance of an heir-apparent succeeding to an

estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any
other mere possibility of a like nature, cannot be transferred.”

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Generally, spes successionis means expecting of succession. A mere
possibility/chance/expectancy of an, heir succeeding to an estate is excluded from the
category of transferable property, e.g., A a Hindu, dies leaving a widow B and On two C. C
has only a spes successionis, as his succession to the estate is dependent on two factors, i.e.,
his surviving the widow B, and B leaving the property intact. However, where a person
hasn’t been heard of a long time and is believed to have been dead, the transfer of his
properties to his brother as his legal heir would be counted as valid transfer because under
these circumstances, brother isn’t a heir apparent but a legal heir1

2. Right of Re-entry. [Clause 2]

By a Mere given to right of re-entry meant a right to resume possession of-land which has
been given to another person for a particular amount of time. It is usually inserted in lease
empowering the lessor to re-enter up a breach of covenants in the lease. This is quite similar
to the rights of lessor given in this act which says if the lessee of property commits any
breach of any condition then the property can be taken back by the lessor. Same goes here in
the transfer of property by the owner. But the owner itself can’t transfer his own right of re-
entry to someone else, that results into a void agreement

(a) X gave a lease of a plot of land for 5 years to Y with the condition that Y shall not dig a
tank on the land. Y digs the tank. X relates to transfer Z the right of re-entry for the breach of
the condition committed by Y. The transfer is invalid because the right of re-entry is only
available to X as he’s the owner and he can’t transfer that to someone else (non-transferable
right).

3. Easement [Clause 3)]— “ An easement cannot be transferred apart from the
dominant heritage.”

Clause 3 of this act ensures that an easement can’t be transferred except from the dominant
heritage. An easement B a right to use, or restrict the use of land of another in some way, for
example, right of way, right of water or light, etc. (Section 3 Easement Act). These rights
cannot be transferred without the property which has the benefit of it. We have to remember
that this clause just prohibits the transfer of easement, it is not concerned with creation of
easement which is not any kind of transfer2
1
Samir Kumar vs Nirmal Chandra (1975) 79CWN 934
2
Sitalal Chandra vs Delanney (1916) 20 Cal. WN 1158: 34 IC 450

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 4.  Restricted Interest [Clause 4].—”An interest in property restricted in its enjoyment
to the owner personally cannot be transferred by him”

E.g., if a house is lent to a man for his personal use, he cannot transfer his right of enjoyment
to another. Similarly a religious office like those of mutawali3 of a wakf or of mahant of a
math4 and emoluments attached to priestly office cannot be transferred. Also, in
Mohammedan law, the widow’s right of retention due to the respect of unpaid dower from
the husband side is also a restricted interest which can’t be transferred to someone else5

5. Maintenance [Clause 4(a)].—”A right to future maintenance, in whatsoever manner

arising secured or determined, cannot be transferred.”

A right to future maintenance is only for the personal benefit of the person to whom it is
granted, thus it cannot be transferred. There was a judicial controversy where two high court
had different opinions about the right. Calcutta HC 6 said this right was a personal right
whether granted by the court or by personal contract, whereas the Madras HC 7 said the right
was a secured right and hence transferable but in 1929 amendment act was passed which
declared this as an non-transferable right.

6.  Mere right to sue [Clause 5 ] —”A mere right to sue cannot be transferred.”

A right to sue is personal to the party aggrieved, as for, e.g., damages for the breach of
contract or for tort, claims for past mesne profit for suing an agent for accounts, for pre-
emption, etc. These rights cannot be transferred. But where the right to sue has merged in a
decree, the right under the decree is assignable. Thus, a right to mesne profit or damages
under a decree is assignable. In Mc Dowell & Co. Ltd. V District Registrar,
Vishakapattanam8, a manufacturing company insured its goods with the insurance company
for the loss or damage of its goods, during the transportation. The insurance company was to
directly procced against the transporter for the loss and damages. A written document was
executed by the manufacturer in favor to the insurance company for the above. The question
was whether this document was to treat as conveyance for purposes of stamp-duty? Here, the
court held it wasn’t conveyance as the right of manufacturer was of mere right to sue for

3
Wahid Ali vs Ashruff, (1881) 8 Cal.732
4
Prayag Das v Mahant Kriyaparam (1908) CLJ 499
5
Zobar Ahmed vs Jai Nandan AIR 1960 Pat 147: Two High courts(Mysore and Allahabad) say this right is
transferable but Patna HC view is said as right
6
Asad Ali V Haider Ali (1910) 38 Cal. 13
7
Raaee Annapurni v Swaminatha (1911) 3 Mad 7
8
AIR 2000 AP 374

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damages and the same right was given to the insurance company and the question of treating
the disputed document was a power of attorney under which company had given merely a
right to sue for damages.

7.  Public office [Clause 6].—”A public office cannot be transferred, nor can the salary
of a public officer, whether before or after it has become payable.”

Thus, prohibition is based on the ground of public policy as the public office is held for
qualities personal to incumbent. If the office is not public, it would be transferable, even
though the discharge of its duties should be indirectly beneficial to the public. Even the
salaries of the public officers is their personal right and hence can’t be subjected to transfer.
Attachment or transfer of the salaries is opposed to the public policy and illegal.

8.  Pensions [Clause 7]—"Stipends allowed to military, naval, air force and civil
pensioners of the government and political pensions cannot be transferred”. Pension
means a periodical allowances or stipend granted not in respect of any right of office
but on account of part services of particular merits. Section 60 of CPC also exempts a
pension from attachment in execution of degree against the pension holder.

9.  Nature of Interests [Clause 8]. —”No transfer can be made (1) in so far as it

opposed to the nature of the interest affected thereby, or (2) for an in so far unlawful
object or consideration within the meaning of Section 23 of the Indian Contract Act,
1872, or (3) to a person legally disqualified to be a transferee. “

This clause forbids the transfer of certain things which from their very nature are not
transferable, e.g., res communes (things of which no one in particular is the owner and may
be used by all men),res nullius  (things belonging to nobody).Res extra commercium (things
thrown out of commerce)

Again, any property otherwise transferable becomes non-transferable when the object or the
consideration of the transfer is unlawful (within. the meaning of Section 23, Indian Contract
Act).

Lastly, a transfer cannot be made in favor of a person who is disqualified to be a transferee.

10. Untransferable Right of Occupancy[Clause 9]-

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The last sub-section of Section 6 is undistinguishable with the provisons in Clause (i) of
Section 108 of this Act and was inserted by the Amendment Act, 1885 to avoid any doubt
which might arise owing to the fact that section does not principally apply to leases for
agricultural purposes.

CONCLUSION

These provisions basically, gives us an idea about the early steps of Transfer of Property Act
1882 which gave us a clarification that which kind of property can be transferable and which
can’t be transferred to others. The Civil Procedure Code and Transfer of Property Act
symbolize what is referred to as the pillar of civil law in India, and the concepts in question,
those of Transferable Property are key concepts with regards to the functioning of the civil
litigations in the country.