WHAT MAY BE TRANSFERED [Section 6] Flashcards
Spes Successionis
Spes Successionis means expectation of succession, it is a possibility of getting property in future through succession. Under this clause, spes successions includes:—
(a) chance of an heir apparent succeeding to an estate,
(b) chance of a relation obtaining a legacy on the death of a kinsman, or
(c) any other mere possibility of a like nature.
This clause says that spes successionis is not transferable.
General Rule of Transferability of Property
The transferability of property is the general rule and non-transferability is an exception. Section 6 of the Transfer of Property Act, 1882 says that property of any kind may be transferred excepting the exceptions given in this section.
First, it is necessary to discuss what are essentials of a valid transfer. In order to constitute a valid transfer of property, it is necessary that—
(1) The property must be transferable (Section 6).
(2) The object or consideration of the transfer must be lawful.
(3) The transferee be competent i.e., he must not be legally disqualified to take the transfer.
(4) The transfer must not be opposed to the nature of the interest affected thereby.
(5) The transferor must be competent to transfer.
It must be made in the prescribed manner or form.
(a) Chance of an heir-apparent
Heir apparent is not a legal heir but apparently an heir. 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. When the propositus dies intestate, i.e., without making any will, the heir will inherit the property.
It is indisputable law that no one can have any estate or interest, at law or in equity, contingent or others, 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.
During the lifetime of such person no one can have more than a spes successionis an expectation or hope
of succeeding to his property.
(b) Legacy
Clause (a) provides that the chance of a relation obtaining a legacy on the death of a Kinsman is not transferable.
Legacy means expectancy of getting certain property under a will. A will becomes operative only after the death of the testator, i.e., the person who has made the will. If a person has made two or more wills, then, only the last will made by him will be operative. Legatee under the last will only will 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
Clause (a) excludes any other possibility of a like nature from the purview of transferability. If there is any other possible property or interest which is as uncertain
as spes successionis 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.
Example can be taken of the next cast of fisherman’s net, crops in fields or fruits in trees, etc. No one can guarantee that any fish will be caught in the net or whether the trees will have fruits.
Section 6(a) and section 43
As we have seen, section 6(a) provides that 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 possibility of like nature, cannot be transferred.
Section 43 provides that where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of
transfer subsists.
This means that when a person transfers a property on the representation that he has a present and transferable interest in the property but in reality he has no title and the transferee on belief of that representation takes the property for consideration, the transferee will be entitled to the property if subsequently the transferor acquires the property and the contract is still subsisting and has not been cancelled. (See section 43).
What is a reversioner
Reversioner is a person who inherits the properties of a widow held by her for life. During the life of widow this right remains suspended but it reverts back to the reversioner on her death provided the reversioner
survived her.
A Right of Re-entry
A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property.
For instance, where the transferor transfers the property subject to a condition that upon the transferee committing a breach of condition of the agreement, the transferor would have a right to enter the premises, this right of entry that is not coupled with any other right and is conditional upon the transferee committing a breach of a condition, is not transferable. For example, A purchased goods from B, on a hire purchase agreement.
The agreement contained a clause that after purchase, A would take the property and would pay the installments on time. If he fails to pay the installments, B would have a right to enter A’s premises and take possession of the property. This right of re-entry is a personal right of B and cannot be transferred by him. If he transfers this right of entry, say, to his creditors, the same would be void.
Gulam Abbas v Haji Kayyam Ali
In this case, C and D’s actions—signing the deeds in exchange for consideration—prevented them from claiming their inheritance after their father’s death due to the principle of estoppel. The court emphasized that while the validity of the deeds as legal documents could be questioned, the estoppel principle still applied, barring C and D from asserting their claims.
Future Property
Property of any kind may be transferred, but interest in property arising in future cannot be transferred.
A transfer of future property only amounts to a contract, which may be enforced when the property comes into existence.
In a suit for partition as between the passing of the preliminary and the final decree, an assignment of the property is not valid as more property can be added and the principle that each shareholder has a right over every inch of the property.
Where through a settlement deed a large portion of property was settled absolutely in favour of the other while a portion of property by way of life interest was retained by himself, an absolute settlement made with respect to the retained property later would be void.
Interest Restricted to Personal Enjoyment
An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
As the right is personal in character, it is untransferable. For instance, two brothers partition a property and give a right of preemption to each other, i.e., if any one of them wants to sell his portion, he must first offer it to the other
brother, who would have a preferential right to buy it. This right is personal to the brothers and cannot be transferred by them to a third party, and if they do so, such transfer would be void.
A right to receive voluntary and uncertain offerings at a worship; or as a co-sharer; priestly offices or emoluments attached to it, office of a mutwali of a wakf; or of shebait of a temple, or service tenures, e.g., ghatwali tenure in Bengal; personal imams; a right of pre-emption; kharkrobi right are interests restricted to personal enjoyment and cannot be transferred.
Right to Future Maintenance
A right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred.
This 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. Thus, the right of a woman to either receive maintenance under a decree or award of the court from her husband, or her ex-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.
If a right to receive maintenance were made transferable, then it would go against the very purpose for which maintenance laws are
passed.
The very objective of maintenance is that a person unable to maintain himself or herself should not be left destitute, and should be prevented from being in a state of vagrancy. If it is allowed to be transferred, it will defeat this very purpose.
It is need based, and the liability on the provider cannot be extended to a transferee of future maintenance. But where property is given to a Hindu widow for her maintenance, the transfer of the property during her life is not transfer of the right to maintenance, and is
valid and effective during her lifetime.
Mere Right to Sue
A mere right to sue cannot be transferred. ‘Mere’ means that the transferee has acquired no interest than a bare right to sue. A right to sue is again a personal right that only an aggrieved party can exercise to seek a remedy in a court of law.
Therefore, it is not assignable. For instance, A and B enter into a contract for sale of property. The
contract contains a clause that if A fails to execute the transfer deed within a month, he would have to pay double the amount of advance paid to him by B at the time of the agreement. This claim of damages is personal to B and is unassignable.
Similarly the clause also contains a condition that if B fails to pay the entire amount by a particular
date, he would have to pay a certain amount as damages. This right to claim damages again is personal and unassignable. However, in the same case, if B fails to pay this part of the money and A sells the property to C along with a right to recover damages from B, this right is assignable and a suit filed by C to recover damages from B would be valid.
Where 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.
Decree
A decree is transferable. An order passed by the Railway Claims Tribunal has all the incidents of decree of Civil Court, so where a decree was passed in favour of the claimants awarding compensation passed prior to death of claimant, their legal heirs would be entitled to claim execution.
Even an eviction decree/order may be an asset and the continuation of existence may lie with the transferee landlord company
Offices and Salary
A public office cannot be transferred. Similarly, the salary of a public officer cannot be transferred whether before or after it has become payable.
The term public office or public officer has not been defined in the TP Act, 1882. By ‘public officer’ it is meant a person who is appointed to discharge a public duty, and receives a monetary return for it in the form of a salary. As the salary is a return for his personal services, it is neither transferable nor attachable. A lien connotes a civil right of the government servant to hold post to which he is appointed substantively i.e, in accordance with law and cannot be transferred.
