Prachurya Sahu| Symbiosis Law, Pune.
Introduction
The Transfer of Property Act defines a transfer as an “act by which a living person conveys property, in present or in future, to one or more living person or to himself and one or more other living persons”[1] The TPA governs five types of transfers i.e. sale, mortgage, lease, exchange and gift of immovable property like land or benefits arising out of such land etc as well as movable property such as stocks, crops, standing timber and more. The act also lays down in which manner actionable claims can be transferred.
In laying down the mechanism for such transfers to be instituted, it is important to not only understand the properties which can be transferred, but to also engage with mechanism which prevent the transfer of certain properties. Such clarity is required in making sure no person is disadvantaged when a transfer is not recognized by a Court of law.
Transfer of Property Act, 1882
The transferability of property is derived from the latin maxim “alienation rei prefertur juri accrescendi” which essentially means that law favours alienation to accumulation. Section 6 of the TPA provides this clarification about the transferability of property. It lays down which properties can be transferred but most importantly, it succinctly and extensively lays down the property which are non-transferable. Section 6 lays down that properties of any kind may be transferable except: –
- “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.
- 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.
- An easement cannot be transferred apart from the dominant heritage.
- An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
- A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.
- A mere right to sue cannot be transferred.
- A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.
- Stipends allowed to military, naval, air-force and civil pensioners of the Government and political pensions cannot be transferred.
- No transfer can be made in so far as it opposed to the nature of the interest affected thereby, or an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 or to a person legally disqualified to be transferee.
- 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.”
Transfer of Spes Successionis
Specs Successionis refers to the chance or expectancy of an heir apparent or other relation to succeed the principal’s property by virtue of inheritance or a will. Such expectancy does not vest the heir apparent or relation with an interest in the property. Furthermore, spec succesionis must be distinguished from a contingent right. In that, the manifestation of contingent right is conditional on the happening or a future event while specs successionis is essentially a possibility or expectancy of succession.
It has been clearly stated in Re Parsons[2] that “no one can have any estate or interest at law or in equity, contingent or other, in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person.” In India, both Hindu and Muslim law prohibits transfer of the expectancy of succession. Therefore, a mere possibility of a heir succeeding to an estate has been categorically excluded from the purview of transferable property.
In Hindu Law, the right vested in the reversionary heir expectant to succeed on the death of a Hindu widow is a spes succesionis and the transfer of this right is a nullity, without any effect in law.[3] In Amit Narayan v. Goya Singh[4], the Privy Council laid down that a Hindu reversioner has no right or interest in praesenti in the property of the principal. Until such property vests with him by operation of law or of a will, he has no ground to assign or relinquish anything. His right materialises only on the death of the principal.
In Muslim law too, the chance of a Muslim heir succeeding is considered a mere spes successionis and therefore cannot be the subject of a transfer. However, relinquishment of succession rights which may arise in the future is permissible under a family arrangement and in accordance to the laws of testamentary succession. It can therefore operate as an estoppel against the expectant heir to claim his share on account of the deceased. The Supreme Court has clarified all the above principles in the case of Shehammal v. Hassan Khan Rawther.[5]
Right of Re-entry
A right of re-entry refers to the right of entry which a transferor reserves to himself, after having parted with the whole estate, for breach of a condition subsequent.[6]
A right of re-entry involves the reversion of the estate and cannot be transferred apart from the estate to which it belongs. The reason such right is non-transferable is because it is a mere right without exclusive to any interest in the property. It is simply a personal licence and therefore untransferable.[7]
Easement
Section 4 of the Easements Act 5 of 1882 defines an easement as “a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own”[8] Easement also allows within itself profit a prendre i.e. a right to enjoy a profit arising out of a land.
Examples of instances of easements are a kamaki’s right to collect leaves for manure and to pasture cattle,[9] a right to use the land of another person for a holi festival,[10] or for a bathing ghat[11] or for a burial ground[12] etc.
An easement cannot be detached from the dominant heritage and transferred.[13] This is so because an easement cannot be in gross as it is a right over one piece of land for the benefit of another piece of land; it therefore, cannot be transferred without the land that has the benefit of it.
Restricted Interests
A restricted interest is an exclusive right of enjoyment by the person with whom it is so vested. By this very nature, it is untransferable. The transfer of such a right would defeat its very purpose of entrusting exclusive interest in a person. By and large, the following interests are held to be non-transferable:
- A right of pre-emption– The right of pre-emption is the readily avoid the introduction of strangers as co-sharers. The sale of such a right to an outsider would defeat the objective of such a right. [14]
- Religious office- A religious office is not a transferable property.[15] The office of shebait of a temple[16], a mutwali of a wakf[17] or a pujari’s right to receive offerings[18] etc are all non-transferable.
- Service Tenures- Service tenures refer to the interest in the land which is remuneration for the personal service so rendered. Given that they are in response to some performance, they are incapable of alienation. Examples of the same are the ghatwal tenures in Bengal created to provide a local military and police force,[19] watanar in Bombay occupying watans as a member of the watan family,[20] karnam lands in Madras[21] and more are instances of where such property cannot be transferred.
Right to Future Maintenance
This clause was added by the Amending Act of 1929 to reflect the Calcutta High Court judgement which ruled that future maintenance was not transferable.[22] Furthermore, Section 60 of the Code of Civil Procedure[23] also reflects the same as it exempts a right of future maintenance from being attached.[24]
A Hindu widow’s right to maintenance is a personal right and it cannot be transferred.[25] Similarly, the interest of a Hindu widow in land which as per her maintenance has been allotted to her is not property which she can transfer.[26] Similarly, a Muslim widow who retains possession of property as her dower debt cannot transfer such property during her lifetime.
Mere Right to Sue
In the case of Sethupathi v. Chidambaram[27], it has laid down that a mere right to sue cannot be transferred. The reason behind such a rule has been clarified by the Supreme Court which is that the law will not recognise any transaction which may savour of maintenance of champerty.[28] Only when the interest in the subject matter exists independent of the transfer is when it may be saved from the imputation of maintenance.
Public Office
It is settled law that “everyone who is appointed to discharge a public duty and receives a compensation for the same, in whatever shape is constituted to be a public officer.”[29]
This salary is what is given in return of personal service of a person, therefore, it is neither transferable or attachable. Furthermore, it is also considered to be opposed to public policy that a public officer transfers the salary of his office; this is so because such salary is given for upholding the dignity and proper performance of his important duties.[30]
Transfer of Pensions
An ordinary meaning of “pension” is that it is a periodical allowance or stipend which is extended on account of past services or merits, and is not in respect of any right, privilege, prerequisite or office. By virtue of its association as a stipend for rendered services, it has been held as non-transferable, as long as it is unpaid and in the hands of the government.
However, an allowance which is granted for other considerations is not prohibited from transfer. This may include a bonus or reward[31], a grant of land even if as pension[32] or a jagir[33] etc. All of these are not considered pension and are therefore, transferable.
Nature of Interest
This clause is in reference the Indian Contract Act i.e. no transfer can be effected for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act. This section provides that consideration or object is unlawful if it is:
- Fraudulent
- Opposed to public policy
- Forbidden by law
Therefore, all transfers which violate section 23 of the ICA are void.
Untransferable Right of Occupancy
Certain occupancy rights are inalienable either by operation of custom of instituted local laws such as the North-Western Provinces Rent Act, 1978 or Agra Tenancy Act, 1901.[34]
In the case of Shanti Prasad v. Bachchi Devi,[35] it has been clearly held that tenants having an untransferable right of occupancy cannot in anyway transfer their interest. An example is the case of Hanuman Prasad v Deo Charan, where it was held that under the TPA, tenancies of homestead lands or agricultural lands in Bengal are not transferable unless there is a custom to the contrary or of an express contract to that effect.[36]
A similar restriction operates in cases of agricultural lands as well, the transfer of which is restricted or prohibited by Tenancy and other agrarian legislation.[37]
[1] Section 5, The Transfer of Property Act, 1882.
[2] Re Parsons [1890] 45 ChD 51 , p 55
[3] Ratnamala v State, AIR 1968 Mys 216
[4] Amrit Narayan v Goya Singh, (1918) ILR 45 Cal 590
[5] Shehammal v Hassan Khan Rawther, AIR 2011 SC 3709.
[6] Mulla, The Transfer Of Property Act, 1882, 13th Ed.
[7] Re Davis & Co, ex-parte Rawlings
[8] Section 4, The Easement Act 5, 1882
[9] Matilda Fernandez v Pinto, 15 IC 278.
[10] Ashraf v Jayannath, (1884) ILR 6 All 497.
[11] Shah Mohammad v Kashi, (1885) ILR 7 All 199.
[12] Ram Singh v Ali Baksh, 95 IC 458.
[13] Sital v. Delanney, (1916) 20 Cal WN 1158, 34 IC 450.
[14] Jasudin v Sakharam, (1912) ILR 36 Bom 139, p 143
[15] Rajaram v Ganesh, (1899) ILR 23 Bom 131.
[16] Nagendra v Rabindra, (1926) AIR 1926 Cal 490
[17] Haji Ali Muhammad v Anjunman-i-Islamia, AIR 1931 Lah 379
[18] Nirya Gopal v Nani Lal, (1920) ILR 47 Cal 990
[19] Purna Chandra v Soudamini, (1918) 28 Cal LJ 283
[20] Radhabai v Anantrav, (1885) ILR 9 Bom 198.
[21] Seshaiya v Gaouramma, (1870) 4 Mad HC 336.
[22] Dhanapala Chettiar v Krishna Chettiar, (1955) ILR Mad 1122
[23] Section 60, The Code of Civil Procedure, 1908
[24] Palikandy v Krishnan, (1917) ILR 40 Mad 302
[25] Ashfaq Mahomed Khan v Nazir Bana, (1942) Oudh WN 359
[26] Diwali v Apaji, (1886) ILR 10 Bom 342
[27] Sethupathi v. Chidambaram, AIR 1938 PC 126
[28] UOI v. Sri Sara Mills Ltd., AIR 1973 SC 281
[29] Henly v. Lyme Corp, [1828] 5 Bing 91, p 107.
[30] Liverpool Corp v Wright, [1859] 28 LJ (Ch) 868.
[31] Khasim v Carlier, (1882) ILR 5 Mad 272.
[32] Subraya v Velayudu, (1907) ILR 30 Mad 153
[33] Duni Chand v Gurmuck Singh, AIR 1930 Lah 816
[34] Shanti Prasad v. Bachchi Devi, AIR 1948 Oudh 349
[35] Ibid.
[36] Hanuman Prasad v Deo Charan, (1908) 7 Cal LJ 309
[37] For example, Bombay Tenancy and Agricultural Lands Act.
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