Transfer of Property Act: Limits on Transferability Under Section 6

Contours of Transferablity: From Rights To Restrictions Under Section 6 of Transfer of Property Act, 1882

“6. What may be transferred. – Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force, –

(a) 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;

(b) 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;

(c) An easement cannot be transferred apart from the dominant heritage;

(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him;

(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred;

(e) A mere right to sue cannot be transferred;

(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable;

(g) Stipends allowed to military, naval, air-force and civil pensioners of Government and political pensions cannot be transferred;

(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be transferee;

(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made 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.”

“Transferability of property is the general rule but its non-transferability is an exception.”

It means property of every kind may be transferred but non-transferable properties are not allowed to transfer under the law.

The Sec.6 of The Transfer of Property Act, 1882 (hereinafter referred as the Act, 1882) provides the exception to transferable properties. It states that property of any kind may be transferred except-

(a) Properties which cannot be transferred by any law, for the time being in force, in India, and;

(b) The properties which cannot be transferred otherwise as given in the Act, 1882.

A. Non-transferability under any other law(enforced in India)

1. Under Hindu law:

• Coparcenary property in Hindu Undivided Family cannot be freely transferred by an individual coparcener – u/s 6 of Hindu Succession Act, 1956.
• A property dedicated to God, being of religious use is also non-transferable.

2. Under Muslim law:

• Waqf properties (dedicated for religious and charitable purpose) cannot be transferred – u/s 51 of Waqf Act,1995.
• The offices of Mutawalli (supervisor of waqf) are also non-transferable property – Syeda Nazira Khatoon (D) By Lr. vs Syed Zahiruddin Ahmed Baghdadi and ors. (AIR 2019 SC 4676).

3. Proviso u/s 60 of CPC, 1908: Certain properties are exempted from attachment or sale, such as, mere right to sue for damages, any right of personal service, books of account, and other.

If under any other law, transfer of certain properties is prohibited, then those properties are also non-transferable u/s 6 of the act, 1882.

B. Non-transferable u/s 6 of the Act, 1882

Sec.6 lays down 10 kinds of specific properties or interests which cannot be transferred-

Clause (a): Spes-Successionis

It means expectation of succession (i.e., inheritance or will).

It includes –

i. Chance of an heir-apparent succeeding to an estate;

ii. Chance of a relation obtaining a legacy on the death of a kinsman; or

iii. Any other mere possibility of like nature.

An heir-apparent is a person who is likely to inherit property or titles in the future but is not yet a legal heir. For example, while a father is still alive, his son cannot be called a legal heir, since it is uncertain who will pass away first. Therefore, the son is referred to as an “heir-apparent” – someone with an expectation, but not a present legal right, to inherit.

A chance of legacy refers to the mere possibility of receiving property under a will. If a person executes multiple wills in favour of different individuals for the same property, then only the beneficiary (legatee) named in the last valid will is entitled to the property.

Illustration:

• A has 2 sons B and C. He is suffering from an incurable disease but still alive. Expecting that A must die very soon and he is in need of money, B sold his half share in A’s property to X. This transfer is void because before A’s death B is not a legal heir, he is just an heir-apparent. He will only be entitled after A’s death and that too if A dies intestate (without making any will).
• D writes a will leaving his house to his friend G, but later writes a new will leaving the same house to F. If D passes away, F (the legatee in the latest will) will get the house. G had only a chance of legacy, not a legal right, since the previous will can always be revoked or changed by D during his lifetime.

If a person promises to transfer property to another based solely on the expectation that they will inherit it in the future, such a transfer is void.

Case: Shehammal v. Hassan Khani Rawther, (AIR 2011 SC 3609)

It was held that the bar to transfer of a right of spes-successionis can be avoided either by execution of a family settlement or by accepting consideration for a further share. It then operates as estoppel against expectant heir to claim any share in estate of deceased on account of doctrine of spes-successionis.

Clause (b): Mere right of re-entry

Right of re-entry means right of lessor (landlord) to resume possession of the property from the lessee (tenant) upon the breach of condition subsequent. Mere right of re-entry is just the right to resume possession and not accompanied with any other interest in land (such as ownership). A mere right of re-entry is non-transferable.

Illustration:

A has leased his land to B for a period of 3 years with an express condition that B shall not dig any well on the land. In violation of this condition, B digs a well.

A now has the right of re-entry because of breach. A attempts to transfers this right of re-entry to C, authorizing C to take possession.

Here, the transfer is invalid. C cannot take possession from B because A transferred only the bare right of re-entry without any accompanying ownership or proprietary interest. The law prohibits such transfer.

In same scenario, suppose instead of transferring only the re-entry right, A sells the entire land itself to C (i.e., transfers ownership). Now C not only becomes the owner of the land but also acquires the right to enforce lease conditions. If B breaches the condition (digging a well), C can lawfully re-enter and terminate the lease as C has also received the substantive ownership interest in the land.

Clause (c): Easement apart from dominant heritage

An easement is a right attached to a piece of land (the dominant heritage) that allows its owner to use another person’s land (the servient heritage) for the beneficial enjoyment of their own property.

An easement cannot be separated from the dominant property; it passes automatically if the property is sold.

Illustration:

• A owns a house that does not have direct access to main road. A has right of way over B’s adjoining land, so that he can access the main road. Here, A’s house is dominant heritage, B’s house is servient heritage, and A’s right of way is easementary right.

Although this right is exercised by A but it exists for beneficial enjoyment of A’s house. Therefore, it is not a personal right of A, but a right that is inherently attached to the house and cannot be separated from it. If A sells the house; the new owner will also have this right of way. A cannot sell or give away this right separately from the house.

• C owns a plot with a building that receives light and ventilation through D’s adjoining land. C has a legal right to receive light and air unobstructed (easement) that prevents D from raising buildings that block this light and air,

Also, release of easement is not transfer, it is an extinction of the right.

Clause (d): Restricted interest

“An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.”

A beneficial interest is a type of property right where a person receives certain benefits or advantages. Such property (beneficial interests) are personal in nature and cannot be transferred to others i.e., they are meant exclusively for the person’s own enjoyment.

Such interests are often granted to a person due to his/her personal qualifications or abilities. For example, a teacher’s right to teach, or religious offices such as office of pujari, who performs rituals and services in a temple. Such rights arise because of the person’s unique skills and cannot be assigned or transferred to someone else.

Clause (dd): Right to future maintenance

Where a person is entitled to receive maintenance, it is his personal right because it is given or promised to be given in future solely for his own benefit.  The promise for future maintenance is granted for the support and sustenance of the individual, and cannot be used for someone else’s benefit.

Because of its personal character, the right to receive future maintenance is considered a restricted interest and is non-transferable.

Clause (e): Mere right to sue

Right to sue for a certain sum of money constitutes an actionable claim. This means if a person has a clear legal claim to receive a fixed amount of money, this right is transferable to another person.

Example: If X is owed ₹10,000 by Y under a written agreement, X can transfer this actionable claim to Z.

However, the right to sue for an indefinite or uncertain sum of money is not transferable. The law prohibits the transfer of a mere (bare) right to sue, especially when it is not linked to any proprietary interest or when the claim amount is not certain.

The use of word ‘mere’ is significant as if only a bare right to sue is sought to be transferred, such a transfer is invalid.

Illustration:

A is the owner of piece of land which B occupies unlawfully. A file a suit to recover possession. After 2 years, the court orders the land to be returned to A. During those 2 years, B enjoyed the land’s produce (mesne profits).

Now, A is entitled to claim mesne profits for that period. If A assigns merely the right to claim mesne profits to C (without transferring the land or any proprietary interest), this is invalid.

This is because mere right to sue for mesne profits is non-transferable,

Clause (f): Public office and salary of public officer

Prohibition on transfer of public office and salaries of public officers. Right to hold an office by virtue of which a person derives certain pecuniary gain is his beneficial interest and is a restricted interest.

Clause (g): Pensions and stipends

Stipends allowed to military, naval, air-force and civil pensioners of Government and political pensions cannot be transferred. This restriction exists because these sums are intended only for the personal support and livelihood of the pensioner. Allowing transfer would defeat their purpose, as these are not commercial benefits but personal allowances.

Clause (h): Transfer opposed to nature of interest, etc.

No transfer can be made in following cases: –

i. Where transfer is opposed to nature of interest created thereby;

ii. Where transfer is for unlawful object or consideration; and

iii. Where transfer made to person who is legally disqualified to be transferee.

Certain properties are by their very nature incapable of private ownership or transfer, as they belong to everyone and are meant for common use such as air, light, space, sea, etc. Such properties are called “res communes”.

Clause (i): Untransferable right of Occupancy

A tenant having an untransferable right of occupancy, the farmer of an estate where there has been a default in paying revenue, or the lessee of an estate under special circumstances are not authorized to assign their interest. These restrictions exist to protect certain classes of landholders and ensure only legitimate holders retain such interests.