WHAT MAY BE TRANSFERRED
What may be transferred as provided under section 6 Transfer of Property Act?
As per section 6 of the Transfer of Property Act, Property of any kind may be transferred, except as otherwise provided by this act or even by any other law for time being in force, and these exceptions will be discussed in detail in the following sub-sections.
1.Spes Successionis (Sec. 6(a))
(i) A chance of an heir apparent succeeding to an estate
The chance of an heir apparent to succeed to the property of an intestate therefore cannot be transferred. The word ‘apparent’ indicates a probability or possibility and transfers that are based on bare possibilities are not permissible. Such prohibition is based on public policy. If a person transfers this chance, the status of this transfer in law is void ab initio. It does not convey any right in favour of the transferee, even if the transferor who transfers a chance may become the owner of the same property in future.
(ii) The chance of a relation obtaining a legacy on the death of a kinsman
The chance of a relation obtaining a legacy on the death of a kinsman cannot be transferred. If a in relation expects to receive property under a legacy, the same cannot be transferred by him before the death of the testator. The reversioner is a person who hopes to get property on the death of another relation. He does not have vested interest in the property but has only a contingent interest in it.
In the case of Mohan Roy v. Gaur Mohun Mullick, the issue was whether the contract by the reversioner to sell the property which was in the possession of a widow as an heir was valid and enforceable. The Privy Council held that the if agreement to transfer property where acquisition of title were based on possibilities, could be enforced then prohibition under section 6(a) would become futile. Hence, the Privy Council held that such a contract was void and unenforceable in a court of law.
(iii) Any other mere possibility of a like nature
Any other possibility of a like nature cannot be transferred. The term ‘like nature’ indicates those possibilities that are based on chance or expectancy. For instance, a person cannot transfer the prize money that he may win in a lottery as there is possibility that he never wins a lottery.
2. A Right of re-entry (Sec.6(b))
A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property. By a mere right of re entry is meant by right to resume possession of land which has been given to another person for a certain time. The transfer of mere right of re-entry is prohibited under section 6(b) of the Transfer of Property Act because it is a personal license. This clause lays down that the right of re-entry cannot be transferred by itself apart from the land.
For instance, lease empowering the lessor to re-enter upon the premises if the rent is in arrears or if there is a breach of covenants in the lease.
In the case of Re Davis & Co. X purchased goods from Z, on a hire purchase agreement . The agreement gave Z a right to enter X’s premises and take possession of the property in default of payment of any installment. This right of re-entry is a personal right of Z and cannot be transferred by him. If he transfers this right of re-entry to X, the same could not be enforced.
3. Easement (Sec. 6(c)
An easement is a right which enables a person to use a property even when he is not the owner of the property. An easement is a right to use or restrict the use of land of another in some way. It includes the right of way, right of light and right of water etc. An easement provides restrictive use of the land, whereby the legal title of the property remains with the original owner itself. The ownership of the land is not passed along with the easement rights, the owner of the property still remains the same.
In the case of Official Trustee of Bombay v. Salebhai Sarafally Bhagat AIR 1926 Bom 328 it was held by the Court that where the owner of a house has a right of way over the land of another for the purposes connected with the beneficial enjoyment of his own house, it is an easement.
4. Restricted Interest (Sec. 6(d)
An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. This clause includes interests such as service tenure rights, maintenance rights and emoluments attached to priestly office etc. all of which are restricted to the person to whom it belong.
For instance, a right to receive voluntary and uncertain offerings at a worship or office of a mutawali of a wakf or service tenures, e.g., ghatwali tenure in Bengal, personal imams are interests restricted to personal enjoyment and cannot be transferred.
5. Future Maintenance (Sec. 6(dd))
A right to future maintenance in whatsoever manner arising, secured or determined cannot be transferred. The term ‘whatsoever manner arising secured or determined’ is very exhaustive and covers cases where this right has been created either under a will, deed or compromise. It has been established that right to future maintenance is solely for the personal benefits of the person to whom it has been granted and therefore this right cannot be transferred.
Thus, the right of a woman to either receive maintenance under a decree or award of the court from her husband or from his property on his demise, or under a will is a personal right. It is neither transferable nor can it be attached by a court’s decree.
6. Mere right to sue (Sec. 6(e))
A mere right to sue cannot be transferred. Thus a mere right to Sue of whether nature can not be transferred in law. It is said that a stranger to a contract (suit) cannot sue. Only parties to the suit alone can sue and be sued since it is a personal right. A right to sue is again a personal right. Claims for past mesne profits, for damages for breach of contract or for tort, for suing an agent for accounts are all mere rights to sue and cannot be transferred.
In the case of Sundar v. Ramdass AIR 2013 Mad 133) an advocate assigned his right to petitioner to sue the defendant and claim compensation for defamation, it was held that right to sue for damages concerning defamation cannot be transferred by one person in favour of another and a pauper application filed at the instance of this other person would not be maintainable.
7. Public Office (Sec. 6(f))
Public offices or salary of public officer can not be transferred. The prohibition is imposed on the basis of the public policy. The expression ‘ public office’ has not been defined in the act. A public office is a position which has a public duty attached to it. It does not matter whether the person holding the office receives any fees or salary for the performance of such duty or not or whether he receives it from government or otherwise.
8. Pensions (Sec. 6(g))
Stipends and Pensions allowed to Army, Navy, Air force and civil, government and political pensioners can not be transferred. Pension like a salary, is a sum of money periodically payable by the government to an ex-serviceman, or a person who has ceased to be in employment. A pension is untransferable, so long as it is unpaid and in the hands of the government, but the moment it is paid to the pensioner or his legal representative it can be attached. Pension must be distinguished from a bonus or rewards that are transferable.
9. Nature of Interest (Sec. 6(h))
Any transfer which is for an unlawful object or consideration is not permissible. Similarly, transfer to a person to be legally disqualified to be a transferee is not permitted. Under section 7 of the Transfer of Property Act, the transferee is required to be competent to the contract and also should not have been disqualified legally.
The object behind this provision is to prohibit transfers where the object is unlawful or the consideration behind the transfer is for a purpose opposed to public policy.
In the case of Abdul Rehman v Ghulam Mohammad, AIR 1927 Lah 18. It was held that a transfer of property for use as a brothel, a gambling den or for illicit cohabitation, by way of payment of a bribe, would be opposed to public policy and therefore void.
Statutory Prohibitions on the transfer of interest:
The general rule is that leaseholds are transferable but this clause makes an exception to this rule and declares certain interests transferable. Thus, A tenant having an transferable right of occupancy cannot transfer his interest. Similarly, A farmer of an estate in respect of which default has been made in the payment of revenue or the lessee of an estate under the management of the court of wards cannot assign his interest as such tenant, farmer or lessee.