MEANING OF TRANSFER OF PROPERTY

Poonam Pradhan Saxena: Property Law, 3rd ed

Dr Poonam Pradhan Saxena

Poonam Pradhan Saxena: Property Law, 3rd ed > Poonam Pradhan Saxena: Property Law, 3rd
ed > Chapter 2 Of Transfers of Property by Act of Parties > (A) TRANSFER OF PROPERTY,
WHETHER MOVABLE OR IMMOVABLE

Chapter 2 Of Transfers of Property by Act of Parties

(A) TRANSFER OF PROPERTY, WHETHER MOVABLE OR IMMOVABLE

MEANING OF TRANSFER OF PROPERTY

[s 5] “Transfer of property” defined.—In the following sections “transfer of property” means an act by which a
living person conveys property, in present or in future, to one or more other living persons, or to himself, or to
himself and one or more other living persons; and “to transfer property” is to perform such act.

In this section “living person” includes a company or association or body of individuals, whether incorporated or not,
but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by
companies, associations or bodies of individuals.

Property from one person to another can be transferred in several ways, such as by way of private or a court sale,
gift, Will, inheritance, relinquishment, dedication, etc., yet, all these kinds of transfers are not subject to the
application of TP Act, 1882. Under section 5 of the Act, the term ‘transfer’ has been defined as an act of a living
person whereby he conveys existing property to one or more living persons, and only those transactions that are
covered under the term ‘transfer’ are subject to the application of this Act. Transfers of title that take place in other
ways are governed by different enactments. For example, testamentary succession is regulated primarily by the
Indian Succession Act, 1925 and for Muslims by their Quranic law; and intestate succession is subject to the rules
laid down by the respective personal laws to which the deceased was subject to. Similarly, dedication of property
for religious and charitable purposes is governed by several religious and charitable endowment Acts passed for
this very purpose.
Living Person

One of the basic features of the Act as is evident from the definition is that it governs transfers only between living
persons,1 or transfers inter vivos. The term ‘living person’ includes a juristic person,2 a company,3 or association or
body of individuals, whether incorporated or not, but does not include an idol of God4 or a temple,5 or even a court.
It does not mean that the property cannot be transferred to God or an idol, but it means that if a person dedicates
property to God, this transfer would not be subject to the rules of the TP Act, 1882, but instead, would be governed
by the relevant religious or charitable endowment Acts. As Company or association or body of individuals, whether
incorporated or not, have been included in the term ‘living person’ in this section, it clearly brings out that a
company can effect transfer of property,6 but the same would not be regulated by the provisions of this section. As
a Will operates from the death of a testator and not during his lifetime, it is also not a transfer within the meaning of
the Act,7 but is subject to the rules provided under the Indian Succession Act, 1925. For instance, if A gifts land to
B, the transfer is subject to the rules of TP Act, 1882, as both of them were living on the day of the transfer.
However, if A leaves his property to B under a Will, this conveyance would not be subject to the rules contained in
the TP Act, 1882. Similarly, the court is not a living person and transfers made by the order of the court are also
outside the application of the Act.8 For instance, if A purchases property from B, it would be subject to the rules
under the TP Act, 1882, but if the property belongs to B, but under a decree/award, his property is sold through
court and A purchases it, this transfer would not be subject to the rules of TP Act, 1882.
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MEANING OF TRANSFER OF PROPERTY

The provisions of the Transfer of Property Act, 1882 shall not be applicable to any grant or other transfer of land or
of any interest therein to be made by or on behalf of the Government.9
Conveyance of Property

Conveying of property involves creation of new title or interest in favour of the transferee.10 In conveyance, through
this instrument of transfer, the title or rights are conveyed to the transferee, for the first time. The transferor is
divested of the right conveyed and the transferee acquires it for the first time under this instrument. For example, a
person A is the owner of a house, and permits B to stay in it. Such permission does not convey any right in favour
of B with respect to the house, as it can be withdrawn at any time. After a month, B agrees to pay a rent of Rs 5000
per month, and A executes a lease deed in his favour. This lease is a transfer of an interest in his favour i.e., a right
of owner to possess and enjoy his property. This right through this lease deed (an instrument of transfer) is
conveyed in favour of B. The right that B acquires is a right in immovable property and he does that with the help of
this instrument. It is now a right and not a mere permission, and his stay in the house will be governed by the terms
of the lease agreement and not by A’s directions. Through this conveyance, B is vested now with a legal right to
possess and enjoy A’s house and during his lawful occupation, A is divested of the right to possession and
enjoyment of his own house. If, after a month, A executes a sale deed in favour of B, B now becomes the owner
and through this sale deed, all the remaining rights in the house are also conveyed to him. The right to possess and
enjoy was already conveyed, but what are now conveyed are the rights of title and of alienation. At the same time,
A is deprived of these rights.

A partition,11 a charge,12 a relinquishment of the reversionary rights by the reversioners,13 a surrender,14 a

compromise,15 creation of an easement,16 razinama and kabuliyat in the collector’s books,17 a right under a
licence,18 or recitals in the deed of mortgages or petition books,19 A deed of dissolution of partnership and receipt of
assets,20 are not transfers as they do not convey the property or an interest in the property. A release deed can be
a form of conveyance by a person having some rights or interests to another having a limited estate, i.e., by a
remainderman to a tenant for life and then the release operates as an enlargement of the limited estate.21 A
registered instrument styled as a release deed releasing the right, title and interest of the executant in any property,
in favour of the release for valuable consideration, operates as a conveyance if the document discloses an intention
to operate as a transfer.22 In absence of any prescribed terms and conditions barring transfer, securities concerned
(OFCDs) are transferable and hence marketable.23

The mere expectation as to or likelihood of conveyance of title, however well founded does not create any interest
in the property.24 The occupancy rights of a tribal cannot be transferred or even bequeathed by any tribal to a non
tribal in view of the restriction under section 73 AA of the Bombay Land Revenue Code or section 63 of Bombay
Tenancy Act.25

A deed of appointment is a transfer.26 Thus, where the donee of power of appointment exercises that power, it
would amount to a transfer.27

If the deed shows a change of title or interest from transferor to transferee, without actually using the words convey
or conveyance, it would be sufficient to constitute a valid transfer.28 Where a registered sale deed is executed in
favour of the transferee for the mining lease with full consent of the owner, the Mines Commissioner is not
empowered to pass orders negating the same.29
A power of attorney does not constitute an instrument of transfer of an immovable property.

A General Power of Attorney (GPA)/Will or Special Power of Attorney (SA) does not ipso facto constitute an
instrument of transfer of an immovable property even where some clauses are introduced in it holding it to be
irrevocable or authorizing the attorney holder to effect sale of the immovable property on behalf of the grantor. It
would not ipso facto change the character of the document transforming it into a conveyance deed. As immovable
property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance, GPA Sales or
Sale Agreement or Will transfers’ cannot be used to transfer immovable property. Both the descriptions are
misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution
of an agreement of sale and a Power of Attorney and Will. Consequently, a Power of Attorney is not an instrument
of transfer in regard to any right, title or interest in an immovable property. It is creation of an agency whereby the
grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be
binding on the grantor as if done by him. It is revocable or terminable at any time unless it is made irrevocable in a
manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.30 A
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MEANING OF TRANSFER OF PROPERTY

Power of Attorney given by a fisherman co-operative society to another to manage fishery does not create an
interest in the property and therefore would not amount to transfer.31 The fixing of different rates of stamp duty when
a Power of Attorney is executed in favour of blood relative as against in favour of outsider as agent is not
unconstitutional. It is to curb tendency of transferring immovable properties through Power of Attorney and
inappropriate documentation and levy of stamp duty on such ostensible documents, whose real intention is to
transfer immovable property.32 s

1 Naranbhai v Suleman, (1975) 16 Guj LR 289.

2 Such as a corporation, see The Transfer of Property Act, 1882, section 5.
3 See Hindustan Levers v State of Maharashtra, wherein it was held that the term inter vivos in context of section 394 of
Companies Act, 1956, would also include within its meaning, a transfer between two juristic persons and a company
can, therefore, transfer property. AIR 2004 SC 326 : (2004) 9 SCC 438.
4 Shyamal Ranjan Mukherjee v Nirmal Ranjan Mukherjee, AIR 2008 (NOC) 568 (All); Jagran Shakya v Gokul Prasad,
AIR 2008 (NOC) 359 (MP); Harihar v Gurugranth Saheb, AIR 1930 Pat 610; Narsimhaswami v Venkatalingam, AIR
1927 Mad 636; Ramchandra v Lalji, AIR 1959 Pat 305; Ram Kumar v CIT, AIR 1966 All 100; Ramalinga v
Shivchidambara. (1919) ILR 42 Mad 440; see also Bhupathi Nath v Ram Lal. (1910) ILR 37 Cal 128, wherein it was
held that an idol is a symbol of deity and it is against Hindu religion that a deity should accept any property or worldly
goods. See also Ahmad Hussain v Kallu, AIR 1929 All 277; wherein it was held that dedication of property to God by a
Wakf is subject to the application of section 53 if the Wakf was created with an intent to defraud the creditors.
5 Ragendra v C Gounder, AIR 2007 (NOC) 1325 (Mad); Biopat Rao v Ram Chandra, AIR 1926 Nag 469.
6 Essar Steel Ltd v Superintendent of Stamps, (2010) 51 (1) GLR 744, (2010) 1 GLH 758; Amar Jyoti Pictures v Himadri
Das, 2010 SCC OnLine Cal 948; Shamjibhai Keshavjibhai Kansagra (Patel) v Principal Secretary, Revenue
Department, AIR 2011 Guj 55; Mardia Chemicals Ltd v UOI, (2004) 4 SCC 311: 2004 (2) MhLJ (SC) 1090; Harish
Chandra Hegde v State of Karnataka, (2004) 9 SCC 780: 2004 AIR SCW 315; Bharat Petroleum Corp v P Kesavan,
(2004) 9 SCC 772: AIR 2004 SC 2206.
7 N Ramaiah v Nagaraj S, AIR 2001 Kant 395; Lala Devi Das v Panna Lal, AIR 1959 J&K 62; Surendra Vikram Singh v
Munia Kunwar, AIR 1944 Oudh 65; Jamindar of Badrachaan v Venkatdri Appa Rao, AIR 1922 Mad 457.
8 Raghubar v Joy Indra Bahadur Singh, AIR 1919 PC 55.
9 Essar Steel Ltd v Superintendent of Stamps, (2010) 51 (1) GLR 744, (2010) 1 GLH 758; Amar Jyoti Pictures v Himadri
Das, 2010 SCC OnLine Cal 948; Bank of Baroda v Mumbai Metropolitan Regional Development Authority, (2010) 3
Mah LJ 819, (2010) 2 Bom CR 509, (2010) 4 AIR Bom R 194.
10 Official Assignee Madras v Tehmina Dinshaw Tehrani, AIR 1972 Mad 187.
11 Indoji Jethaji v Kothapalli, 54 IC 146.
12 Govind Chandra v Dwarka Nath, (1908) ILR 35 Cal 837; Jawahir Mal v Indomati, (1914) ILR 36 All 201. See also the
Presidency Towns Insolvency Act, 1909, section 2(i) and Provincial Insolvency Act, 1920, section 2(f) where transfer of
property is defined as including a charge.
13 Provident Investment Co v CIT, AIR 1954 Bom 95.
14 Makkan Lal Saha v Nagendra Nath Adhikari, (1933) ILR 60 Cal 379; Morati v Krishna, AIR 1925 Nag 455; Samrathi
Devi v Parasuram, AIR 1975 Pat 140; see also Kalka v Jaswant, AIR 1926 Oudh 69.
15 Hanuman Sahu v Abbas Bandi, AIR 1929 Oudh 193; Khunni Lal v Gobind Krishna, (1911) ILR 33 All 356; PC
Basangowda v Irgowdatti, AIR 1923 Bom 276; Balkrishna v Ranganath, AIR 1951 Nag 171.
16 Sital Chandra v Delanney, (1916) 20 Cal WN 1158; Bhagwan Sahai v Narsingh Sahai, (1909) ILR 31 All 612;
Konadayya v Veeranna, AIR 1926 Mad 543; Satyanarayana v Lakshmayya, AIR 1929 Mad 79.
17 Rachappa v Ninagappa, AIR 1926 Bom 40; see also Imam Valod Ibrahim v B Appaji, (1917) ILR 41 Bom 510. There
has been a conflict of judicial opinion on this issue.
18 Joyden Sen v State of West Bengal, AIR 2010 (NOC) 256 (Cal).
19 Pankajini v Sudhir Datta, AIR 1956 Cal 669; Immudipattam Thirugnana v Periya Dorasami, 28 IA 46; see also Sunil
Sidharta Bhai v CIT, AIR 1986 SC 368, wherein it was held that if exclusive interest is reduced to a shared interest it
would amount to a transfer.
20 Balbir Singh v State of UP, AIR 2012 All 113.
21 Kuppuswami v Arumugam, AIR 1967 SC 1395.
 PROPERTY
Poonam Pradhan Saxena: Property Law, 3rd ed
Dr Poonam Pradhan Saxena

Poonam Pradhan Saxena: Property Law, 3rd ed > Poonam Pradhan Saxena: Property Law, 3rd
ed > Chapter 2 Of Transfers of Property by Act of Parties > (A) TRANSFER OF PROPERTY,
WHETHER MOVABLE OR IMMOVABLE

Chapter 2 Of Transfers of Property by Act of Parties

(A) TRANSFER OF PROPERTY, WHETHER MOVABLE OR IMMOVABLE

PROPERTY
The term property has nowhere been defined in the Act. It is used in the widest and most generic sense.33 Property
is the most comprehensive of all terms which can be used, in as much as it is indicative and prescriptive of every
possible interest which any person can have,34 and it is generally understood as anything that is capable of being
owned. Thus, it means not only physical objects, but also includes rights and interests existing in, or derived out of,
the actual physical object.35 The beneficial interest of the head of a religious endowment such as a mutt,36 an
actionable claim,37 a right to a reconveyance of land,38 a right to obtain shares in a company,39 is property, but a
stamp vendor licence is not property and thus cannot be inherited40.
Interests in Property

The term property includes an interest in property. An owner has three basic rights in the property, i.e., a right of
ownership, of having the title to the property, secondly, an exclusive right to possess and enjoy the property and
thirdly, an exclusive right to alienate the property in any manner that he likes. These rights are called interests in the
property under Indian law, and are referred to as ‘real rights’ under English law. Where, either the complete rights in
the property are transferred, or even one or two of these basic rights are transferred as between living persons, the
transfer would be subject to the provisions of the Act. Transfer under the Act may refer to transfer of possession as
well as transfer of ownership.41 Where all the rights in the property are transferred, it would be a transfer of
property, but where only some rights are transferred, it would be a transfer of an interest in the property.42 Absolute
ownership is therefore, an aggregate of component rights such as the right to possession, the right to enjoying the
usufruct of a land,43 a vested remainder,44 a contingent interest,45 and a lease46 of an immovable property.
In Present or in Future

The term ‘in present or in future’ qualifies the word ‘conveys’ and not the term ‘property’.47 It means that a transfer is
a conveyance of such property that must be in existence at present, but whose conveyance may take place
depending upon the terms of the contract concluded between the parties not only at present, but also in the future.48
It does not, therefore, refer to the conveyance of future property, but may include conveyance of an existing
property in future.49

An assignment of an estate or interest which has no existence on the date of transfer, can, neither in law nor in
equity operate according to its tenor.50 Such a purported transfer can only operate as an agreement to transfer and
when the future assets come into existence it is seized on in equity by reason of such agreement.51 If there is an
attempted conveyance of non-existent property, it cannot operate as an immediate alienation. Made for
consideration, it may be valid as a contract, and when the object to which it refers to comes into existence, equity
taking as done that which ought to be done, fastens upon that property and the contract to assign thus becomes a
complete assignment.52 A transfer of future property as opposed to transfer in the future may operate as a contract
which may be specifically enforced as soon as the property comes into being, provided that the property is
sufficiently specified.53
Transferor and Transferee the Same Person
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PROPERTY

Though normally the transferor and the transferee would be two separate individuals or group of individuals, the
expression ‘or to himself’ in section 5 indicates that there may be a situation where the transferor and the transferee
can be the same person. No person can transfer property to himself in the same capacity, but if he transfers
property in one capacity to himself and receives it in some other capacity, then, such transfer is permissible. A
person may thus convey land to, or vest land in, himself,54 in some other capacity.55 An apt illustration of it is that a
person creating a trust can transfer the property from his individual capacity to himself as a trustee.56 Ordinarily, the
trustee is the owner of the trust and has the title to the property, but where the trust specifies a category of
beneficiaries or a specific purpose for which it was set up, the trustee cannot deviate from the purpose, or use the
property for his own benefit. He does not possess a right to enjoy the property for his personal benefit, unlike an
ordinary owner having the title to the property. So long as the purpose of the trust remains unfulfilled, the trustee
does not acquire the power to sell the property at his pleasure. Similarly, if the beneficiaries, under the trust, create
a separate class, till any one of them is alive, the property can be used only for their benefit and not at the pleasure
of the trustee. It is only when either the purpose for which the trust was set up is fulfilled, or the class of
beneficiaries for whose benefit it was created comes to an end by death, that the trustee in accordance, with the
terms of the trust, may acquire the power to sell it. Only when the trustee becomes competent to sell the trust
property can he sell it to either any one or even to himself. In such a case, he sells it as the trustee to himself in his
individual capacity. These limited powers of sale vested in a trustee are conveyed to himself, and as an ordinary
person he acquires a right to possess and sell it at his pleasure.
Partition of Joint Family Property

In a Hindu joint family, the coparceners collectively have the ownership of the coparcenary property. Each
coparcener has an antecedent title to the property, but community of interest and unity of possession being the
essential features of a coparcenary, all coparceners jointly possess the title to the property, a right to possess and
enjoy it and a collective right to alienate it. After partition, the share of each coparcener is specified and instead of
collective rights, they acquire individual rights over the property. Partition, therefore, involves a division of the
property as also of the rights in the property and does not involve any divesting or vesting of rights in favour of or
against the owner. It is not as if through this instrument of transfer, a member of a joint family acquires the rights in
the property for the first time. He was vested with these rights previously also, but enjoyed it collectively with other
coparceners. After partition, these antecedent rights are demarcated specifically. The process of partition therefore
involves the transfer of joint enjoyment of the properties by all the coparceners into an enjoyment in severalty by
them of the respective properties allotted to their shares. It does not amount to a transfer within the meaning of
section 5 of the Act.57 It can neither be called an exchange nor a conveyance between one co-owner and another,58
as it is in the nature of only a process of mutual renunciation by which common unspecified rights in larger extents
are converted into exclusive rights over specific property.59 It can only signify surrender of portion of joint rights in
exchange for similar rights from co-sharer to other co-sharers.60 There is no acquisition of property in another by
independent right.61 Each one has an antecedent title, a right to enjoy, and also a right to alienation, but these could
be exercised only collectively by them. After partition, no new rights are conveyed in their favour, but these
antecedent rights are specified or divided. As there is no vesting or divesting of rights or conveyance of the same
for the first time through this partition, it does not amount to a transfer.
Case Laws relating to Hindu Joint Family Property

In VN Sarin v Ajit Kumar Poplai,62 a joint family comprised of father and his two sons. The coparcenary property
included a bungalow that was partitioned, and each of the coparcener got one-third of it. The portion, that came to
one of the sons, A, was in occupation of a tenant, previously inducted into the premises by the father, who was the
karta. A filed a suit for eviction against the tenant T, on the ground of bona fide necessity for personal use. The
tenant resisted his claim and contended, amongst other grounds, that A had acquired the premises through a
transfer. The implication of this contention is that under section 14(6) of the Delhi Rent Control Act, 1958, where a
landlord/person acquires the tenanted premises by a transfer, no application for the recovery of possession of such
premises shall lie on ground of bona fide possession, unless a period of five years has elapsed from the date of
acquisition. In other words, if it is held that the property here was acquired by A through a transfer, then he has to
wait for a period of five years before he can institute a suit for eviction against him. Thus, the present suit would
become premature and would be dismissed. On the other hand, if the mode of acquisition, i.e., the partition does
not amount to a transfer within section 5 of the TP Act, 1882, then the suit would not be premature, and can be
decided on merits. The question before the court therefore was; whether partition of coparcenary property; or
acquisition of property through partition amounts to a ‘transfer’ within the meaning of section 5 of the TP Act, 1882.
What was unique in this case was the fact, that right from the court at the initial level i.e., Rent Controller, to Rent
Control tribunal, the Court of Delhi and even the Supreme Court on this issue, gave concurrent findings. Their view
was that the partition of the coparcenary property does not amount to transfer within the meaning of section 5 of the
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PROPERTY

TP Act, 1882. The court held that the joint family property is owned, enjoyed and can even be sold by all of them
jointly. When the property is partitioned, there is a division of all these rights that they possessed, collectively into
individual or specific rights. Thus, the court ruled that partition of joint family property does not amount to a transfer
within the meaning of the Act and observed:

It is true that a partition is not actually a transfer of property but would only signify the surrender of a portion of a joint right
in exchange for a similar right from the other co-sharer or co-sharers.

Similarly in Girja Bai v Sadashiv Dhundiraj,63 the Privy Council observed that ‘partition does not give him (a
coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form
for purposes of disposition independent of the wishes of his former co-sharers’. In CIT v Keshavlal Lallubhai Patel,64
the father had thrown all his self-acquired properties into the joint family common hotch pot. The family comprised
of the father, his wife and two sons, one of whom had attained majority. Pursuant to an oral partition, this property
was divided and now stood in the exclusive names of the members of the family. The question before the court was
whether this oral partition was, in fact, an indirect transfer of the properties allotted to the wife and the minor son.
The apex court held that this oral partition was not a transfer in its strict sense so as to attract the provisions of
section 16(3)(a)(iii) and (iv) of the Indian Income Tax Act, 1922. Again, in Mohar Singh v Devi Charan,65 the
property was jointly owned by two co-owners, part of which was in occupation of a tenant. This property was
partitioned between them, and A, in whose share fell the tenanted premises, filed a suit for eviction of the same.

As partition of joint family property is not a transfer within the meaning of section 5 of the Act, the doctrine of part
performance is not applicable to an unregistered deed of partition.66 Even if a partition involves release it cannot be
called a release,67 but where a deed indicates no elements of partition and its operative terms and tenor decide its
nature, the deed would be a release.68
Family Arrangements/settlements

A family settlement is different from a formal partition. It is an informal arrangement where the members of the
family agree to divide the property amongst themselves, not necessarily in accordance with the quantum as
specified in law or according to their entitlement. It can take into its fold non-family members as well69. Once
effected, it is binding on all the members who were parties to it and is enforceable in a court of law. Even though
there may be a conferment of rights with respect to property in favour of members, it is not a transfer of property, as
it simply acknowledges and defines the title of each member70 and does not create new title.71 It may be oral or in
writing. A deed of family settlement is not required to be compulsorily registered even where it has been reduced to
writing and would be admissible in evidence where it was already acted upon by the parties, who acknowledged the
antecedent title.72 Where no right in praesenti is created such family settlement cannot be treated as inadmissible
on grounds that it is not registered73. However, a deed of family arrangement is valid, and a subsequent sale of
property cannot be challenged, more so where the parties enjoyed the shares after payment of taxes on the
strength of the family arrangement executed by the parties in presence of panchayatdars.74 A deed of Family
Settlement to partition joint family properties cannot be relied upon unless signed by all co-sharers and where the
validity of a family agreement was challenged on the ground that it was signed by using coercion and that in
presence of a Will the parties are not competent to enter into a family arrangement, the family arrangement would
be valid in absence of conduct of the parties that is contrary to their assertions of consent being taken by
coercion.75
Will

There is a difference between a transfer of property and a bequest under Will. TP Act, 1882 deals with transfers
inter vivos, that is, by a living person who conveys the property to one or more living persons. While a transfer is a
conveyance of an existing property by one living person to another, a Will is a legal expression of a wish and
intention of a person with respect to his properties. Since a Will takes effect from the death of the testator, it is not a
transfer inter vivos, or between living persons, but is from a person, who is dead to the legatee and therefore, it will
not be subject to the provisions of the TP Act, 1882. It would be governed by the rules provided under the Indian
Succession Act, 1925. A deed executed by the husband and wife jointly providing that on the death of any of them
the surviving executant shall possess the same with absolute rights of alienation and upon the death of such
surviving executant, the property would go to their children, the deed would be a Will and consequently not a
transfer as there was no transfer of right in praesenti in favour of the surviving executant or the children.76 The
question whether the acquisition of property or title through a testamentary disposition amounts to transfer of
property has come up in several cases.
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PROPERTY

In N Ramaiah v Nagaraj S,77 a person died leaving behind his wife W, and his nephew Br S (brother’s son). The
nephew applied to the court for grant of letters of administration claiming that the deceased had left his total
properties in his favour under a Will. This claim was contested by the widow W, on the ground that the Will was a
forged document, and she, as the legally wedded wife of the deceased was entitled to the total properties. The
nephew sought and obtained a temporary injunction from the court, preventing or restraining the widow from
transferring or alienating the suit properties till the case was decided by the court on merits. The widow was
therefore asked to maintain the status quo with respect to these properties. Six months later, the widow executed a
Will of these properties in favour of her brother and died three months later, while the suit relating to the title dispute
was pending in the court. Her brother applied for substitution of his name in the place of the testatrix. Br S, objected
to this substitution on the ground, that as the widow was specifically directed by the court not to transfer or alienate
the property and was to maintain the status quo, a transfer of property, under a Will, so as to create rights in a third
party would be against the order of the court and hence void, and such a transferee would have no locus standi to
be substituted in place of the deceased testatrix. The main issue before the court was whether execution of a Will
amounts to a ‘transfer’ or alienation within the meaning of the TP Act, 1882? If it does, then the execution of will
was against the express directions of the court, and would be void. Consequently, the legatee under a void Will
would have no right to substitution. But, if a Will is not included as a mode of transfer within the meaning of section
5, then the legatee under this valid Will, would be entitled to step into the shoes of the testatrix, and continue the
litigation. The court held that by making a Will, a testator neither changes title or possession in regard to a property.
Neither is the nature or situation of the property altered, nor is anything removed or added to the property, by such
Will. Pointing out the distinction between a transfer and a Will, the court said:

…the difference between a transfer and a Will are well recognised. A transfer is a conveyance of an existing property by
one living person to another (that is transfer inter vivos). On the other hand, a Will does not involve any transfer, nor effects
any transfer inter vivos, but is a legal expression of the wishes and intention of a person in regard to his properties which he
desires to be carried into effect after his death. In other words, a Will regulates succession and provides for succession as
declared by it (testamentary succession) instead of succession as per personal law (non testamentary succession). The
concept of transfer by a living person is wholly alien to a Will. When a person makes a Will, he provides for testamentary
succession and does not transfer any property. While a transfer is irrevocable and comes into effect either immediately or
on the happening of a specified contingency, a Will is revocable and comes into operation only after the death of the
testator. Thus, to treat a devise under a Will, as a transfer of an existing property in future is contrary to all known principles
relating to transfer of property and succession.

The court therefore, held that a Will does not amount to a ‘transfer’ within the meaning of section 5 of the TP Act,
1882, and allowed the legatee to pursue the litigation on behalf of the testatrix.

In Kenneth Solomon v Dan Singh Bawa,78 the issue again was, whether devolution of interests in property through
inheritance or testamentary succession (Will) would amount to ‘transfer’ of an interest in the immovable property
within the meaning of section 5 of the TP Act, 1882. The dispute related to the tenancy rights of the tenant, which
he had bequeathed in favour of his heirs. On his death, the beneficiaries under his Will took possession of the
tenanted premises as the contract of lease was still subsisting. The landlord filed a suit for eviction on the ground,
that this transfer of the premises amounted to a violation of the provisions of the Delhi Rent Control Act, 1958, as
the tenant had ‘parted with possession’ of the premises in dispute without the permission of the landlord.

The Delhi High Court here differed with the Karnataka High Court’s judgment and observed:

Will is the legal declaration of the intention of the testator with respect to his property which he desires to be carried into
effect after his death. One characteristic of the Will as distinguished from other kinds of instruments disposing of property is
its revocable nature as it is ambulatory until the death of the testator. Till the death of the testator, it is barely an expression
of intention to deal with the property in a specific manner, but the moment the testator dies, it has the effect of vesting the
property, that is the subject matter of the bequest on the beneficiary. At that point of time, it would have the same effect as
a transfer of possession by sale or mortgage. The process of parting with possession thus starts on the execution of the
Will, but matures only on the death of the testator. The tenancy rights disposed under a Will would vest in the devisee
immediately on the death of the testator.

Holding here that a violation of the lease agreement had taken place by bequeathing tenancy rights, the legatee
under the Will was directed to vacate the premises.
 Page 5 of 7
PROPERTY

What is pertinent to note here is the fact that the two cases, though related to testamentary succession, differed
fundamentally with each other. The main issue in Ramaiah’s case was whether bequeathing of rights under a will
amounted to transfer/alienation of rights under the TP Act, 1882, which the court answered in negative. In the
present case, the issue was whether a person ‘parts with possession’ of the property through a devise of Will, and
not whether such parting of possession amounts to a transfer within the meaning of section 5 of the TP Act, 1882.

The court itself explained it in the following words:

The transfer of property according to the definition given in S. 5, of the Transfer of Property Act, means an act by which a
living person conveys property in present or future to one or more other living persons or to himself and one or more other
living persons. True, these words exclude transfer by Will, for a Will operates after the death of the testator.

In relation to the violation of the tenancy contract, the court said that the act of making a Will, by itself, would not
amount to parting with possession of the premises, as a Will by its very nature is revocable, and does not vest
possession, or for that matter, any right in the legatee. Through a Will, a person parts with possession only after his
death, and therefore, though vesting and divesting of the rights in the property take place, the moment the testator
dies, the whole transaction would be governed by the relevant succession laws and not by the provisions of the TP
Act, 1882.

33 Matadin v Karim, (1891) ILR 13 All 432; Banssi Gopal v Banerjee, AIR 1949 All 433.
34 Jones v Skinner, (1835) 5LJ Ch 90.
35 Ramshankerlal v Ganesh Proshad, (1907) ILR 29 All 385.
36 Commr. v Lakshmindra, AIR 1954 SC 282.
37 Muchiram v Ishan Chander, (1894) ILR 21 Cal 568; Rudra Prakash v Krishna, (1887) ILR 14 Cal 241.
38 Narasingerji v Panaganti, AIR 1924 PC 226.
39 Vasudev Ram Chandra Shelat v PJ Thakkar, (1974) 2 SCC 323; VB Rangaraj v VB Gopalakrishnan, AIR 1992 SC 453;
SP Jain v Kalinga Tube, AIR 1965 SC 1535.
40 Joydev Sen v State of West Bengal, AIR 2010 (NOC) 256 (Cal).
41 BSE v S Kandalgaon, (2015) 2 SCC 1.
42 Sunil Sidharthbai v CIT, AIR 1986 SC 368.
43 Indar Sen v Naubat Sen, (1885) ILR 7 All 553.
44 Gulam Husein v Fakir Mahomed, AIR 1947 Bom 185; Umesh Chander v Jahoor Fatima, 17 IA 201.
45 Ma Yait v Official Assignee, AIR 1930 PC 17.
46 Inderloke Studio Ltd v Santi Debi, AIR 1960 Cal 609.
47 Jugal Kishore v Raw Cotton Co, AIR 1955 SC 376 : (1955) 1 SCR 1369 : (1956) 58 Bom LR 517; Abdul v Goolam,
(1906) ILR 30 Bom 304.
48 Sumsuddin v Abdul Husein, (1909) 31 Bom 172; Harnam v Akbar, AIR 1937 Pesh 76.
49 See The Transfer of Property Act, 1882, section 5.
50 Ditcham v Miller, AIR 1931 PC 203; per Jessel MR in Collyer v Isaacs, (1882) 19 ChD 342.
51 Per Martin J in Re Md Hasham & Co, AIR 1923 Bom 107.
52 Annadamohan v Gourmohan, 25 Cal WN 496, 508. See also Prem Sukh v Habibullah, AIR 1945 Cal 355, 358; Collyer
v Isaacs, (1882) 19 ChD 342, 351.
53 Holroyd v Marshall, (1862) 10 HLC 191; Tailby v Official Receiver, 13 App Cas 543; see also Purnachandra v
Barnakumari, AIR 1939 Cal 715.
54 However, it does not enable a person to grant a lease to himself, and does not enable two or more persons to grant a
lease to all of themselves; see Rye v Rye, [1962] AC 496, [1962] 1 All ER 146 (HL). Nor can a nominee grant a lease to
 WHAT MAY BE TRANSFERRED
Poonam Pradhan Saxena: Property Law, 3rd ed
Dr Poonam Pradhan Saxena

Poonam Pradhan Saxena: Property Law, 3rd ed > Poonam Pradhan Saxena: Property Law, 3rd
ed > Chapter 2 Of Transfers of Property by Act of Parties > (A) TRANSFER OF PROPERTY,
WHETHER MOVABLE OR IMMOVABLE

Chapter 2 Of Transfers of Property by Act of Parties

(A) TRANSFER OF PROPERTY, WHETHER MOVABLE OR IMMOVABLE

WHAT MAY BE TRANSFERRED

[s 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 any one except the
owner of the property affected thereby;
(c) An easement cannot be transferred apart from the dominant heritage;
(d) All 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.

Property and interests in property as a general rule are transferable. This rule of transferability is based on the
maxim alienation rei prefertur juri accrescendi, which means law favours alienation to accumulation. Therefore, any
attempt to interfere with the power of the owner to alienate his interest in the property is frowned upon by the law. At
the same time, where either the transferor does not possess a valid title to the property and is merely hoping to
acquire one in future, or has an interest in property that is solely by its very nature created for his personal
enjoyment, or as a rule of public policy, transfer of such interests in property should not be allowed to be
transferred, a transfer of property in such cases by him, is prohibited. It is only when the transferor has a present
subsisting title or interest in the property and is capable of delivering the same to another, that he is permitted to
transfer it. The transferor may get the physical possession of the property in future, but if he has a subsisting title to
it in present, the restriction on his power to alienate the same cannot be applied.

For instance, A hopes to succeed to his father’s property on his death. His acquisition of this interest is based on a
 Page 2 of 7
WHAT MAY BE TRANSFERRED

hope or expectancy that may or may not materialise. If he is permitted to transfer the same, it may create confusion
and conflict of claims later on, and therefore he is not permitted to do so. However, if the father dies, and through
his Will bequeaths his property to his wife for her life and after her, the son will take the possession of it as an
absolute owner, the son has a present subsisting title to the property the moment the father dies. It is only the
possession of the property that is delayed till the mother dies, and he can validly transfer the property and convey a
good title to the transferee. Similarly, a person in the capacity of an employee is drawing a salary for the work that
he does for an organisation. This salary is for his personal services rendered and cannot be transferred. But once
the salary is paid to him, it can be transferred validly. Therefore, under the Act, ten exceptions have been provided
to the general rule of alienability of the property.
Assignment of After-Acquired Property under Common Law

Property which, at the date of the assignment, is either not in existence, or not the grantor’s property, is not
transferable at common law,79 unless the grantor already has a potential property in it as its present owner or
possessor of that which is expected to produce it.80 Thus, it has been held that a transfer or assignment purporting
to convey goods which will afterwards be in the grantor’s house, does not pass the interest in it which the grantor
acquires subsequently.81 Such an assignment is ineffective at law as an assignment82 as regards future acquired
goods, unless followed by delivery or ratified by some act done by the grantor with that view after he has acquired
the property, but the mere bringing of goods onto the grantor’s premises is not necessarily such an action.83
Heir Apparent

The term ‘heir apparent’ is an English term and is based on the maxim nemo est heres viventis which means that a
living person does not have any heir. An heir is a person who succeeds to the property of another on his death if
such person Wills the property to him, or dies intestate. Intestate refers to a person who dies leaving behind
property but no specific instructions, capable of taking effect in law with respect to its disposal, i.e., he does not
leave behind a valid Will, and his property goes in accordance with the laws of inheritance that are provided under
the law that he is subject to at the time of his death. Therefore, who the heir will be can be determined only at the
time of the death of a person, and not beforehand.
Chance

In case a person hopes to succeed to the property of an intestate, what and how much, if at all would be the
property available for inheritance can again be ascertained at the time when the owner dies. These two things, i.e.,
who the heir will be and whether the property would be available can never be postulated with concrete certainty
before the death of the owner. There may be a possibility that no property is left at the time of the death of a person,
as it may have been disposed of by him during his lifetime or might have been made the subject of a testamentary
disposition. It may also be possible that the heir apparent may die before the very person whose property he was
hoping to succeed to. Thus, there is a hope, expectancy or a chance that he may succeed to the property, but no
certainty, no definite concrete reality that such an eventuality must happen. This is the reason why the Act uses the
expressions, ‘chance’ and ‘heir apparent’, and not heir. The term ‘apparent’ indicates a probability or possibility, and
transfers that are based on bare chances or possibilities are not permissible.
Chance of an Heir Apparent

The chance of an heir apparent succeeding to the property of an intestate; the chance of a relation obtaining a
legacy on the death of a kinsman, or any other possibility of a like nature cannot be transferred.84
Transfer of Spes Successionis is void ab initio

The chance of an heir apparent to succeed to the property of an intestate therefore cannot be transferred. This
chance is also referred to as spes successionis. 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, in fact, become the owner of the same property in future.

For example, a family consists of father F and a son S. F is the owner of certain properties. As the ownership is with
F, during his lifetime, no one else including the son can ordinarily sell the property without his consent. The son is
the heir apparent, i.e., if F dies intestate, S would inherit this property. As S is the heir apparent, his succession to
the properties in the future is a chance due to two main reasons, first, since F is the owner, he may sell it, or
dispose it of in any other manner or may make a will in favour of any one, and nothing may be left for S. Secondly,
the son may die during the lifetime of the father. Thus, if the son, during the lifetime of the father, transfers this
property without the consent of the father, the transfer would be void as it is expressly prohibited by the Act. For
instance, in the same example, let us take a situation, where the son professes to transfer the property of the father
to X, with a conviction that he is the future owner of the property, and assures X, that on F’s death, he would deliver
the possession of the property. The next day F dies and S in fact becomes the owner, but now fails to or refuses to
 Page 3 of 7
WHAT MAY BE TRANSFERRED

deliver the possession of the property. X cannot press for delivery of possession of the property, as this transfer
was void in its inception and cannot be enforced. However, he would be entitled to have his amount back, if he had
paid consideration.

Similarly, a family consists of the father F, his wife W, and a daughter D. F wants to secure the property he owns in
favour of W, but instead of making a Will, he asks D to sign a release deed to the effect, that she would not claim
her share of inheritance out of the property of F, when he dies. D signs the release deed in favour of W. When the
father dies, she claims half of his property by way of his heir. She can do so, as what she had transferred by way of
the release deed was her chance to succeed to the property of the father, and as that is expressly prohibited under
the Act, the same was void, and she will not be bound by it.85 In Official Assignee, Madras v Sampath Naidu,86 a
mortgage executed by an heir apparent was held as void by the court even though he subsequently acquired the
property as an heir.
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.87 A legacy is money or
property given under a Will. If a person expects to receive property under a legacy, the same cannot be transferred
by him before the death of the testator. For instance, X bequeathes his house under a Will in favour of Y. Till X is
alive, Y has a bare chance of obtaining this legacy. It is a chance, as Y can become the owner of this property only
if:

(i) X dies before Y;

(ii) X does not revoke this Will or bequeathes the property in favour of anybody else; and
(iii) The property bequeathed to Y is available at the time of the operation of the Will, i.e., it has not been
disposed of by X during his life time.

Therefore, Y is prohibited from transferring the property which is bequeathed to him before the operation of the Will.

Likewise, let us take the case of a reversioner, who hopes to get the property on the death of another relation. He
does not have a vested interest in the property, but has only a contingent interest in it. If he dies before the relation
on whose death he was hoping to succeed to the property, his heirs do not get the property and it reverts back to
the original owner. For example, A and B were two brothers constituting a Hindu joint family. In 1944, A died leaving
behind a widow, W. His interest in the joint family property will be taken by his widow, and his brother B would be
called a reversioner. The chance of B to take the property on the death of W is a mere expectancy and cannot be
transferred. It is an expectancy or probability as B may die during W’s lifetime. It is only if he survives her, that he
would become the owner of the property on her death. Therefore, if the reversioner during the lifetime of the widow
transfers the property that is at that time in possession of the widow, such transfer will be void even if the next day
of the transfer the widow dies, and the reversioner, in fact, becomes the owner of the property.

Similarly, on the death of an undivided Hindu coparcener, his widow took possession of the property. She sets up
an adoption deed allegedly executed by her husband, authorising her to take a child in adoption. The deed of
adoption is challenged by the reversioner who is the brother of the deceased husband. In order to meet the litigation
expenses, the reversioner transfers the property that was in the possession of the widow. The court holds that the
deed of adoption is a forged document, and the case is decided in favour of the reversioner, cancelling the
adoption. The next month the widow dies, and the reversioner takes possession of the property as its owner. The
transferee presses for delivery of possession of the property. This transfer that is void cannot be acted upon by the
transferee, nor can be enforced in the court.

Thus, a mere possibility cannot pass by succession, bequest or transfer, so long as the right has not actually come
into existence by the death of the present owner.88 The chance of a Hindu reversioner is an interest expectant on
the death of a qualified owner and not a vested interest, and as such, its transfer89 or relinquishment90 or a contract
to transfer the expectancy when the reversioners enter into possession91 is a nullity, and has no effect in law.
However, a reversioner may, under certain circumstances, by being a party to a compromise in the nature of a
family settlement and by taking the benefit of compromise, be debarred from claiming as a reversioner.92 Similarly,
the transfer or relinquishment of a prospective right as part of a family settlement or of a compromise by rival
claimants to property stands on an entirely different category from the bare transfer of a spes successionis.93

Where some of the reversioners of a male proprietor executed a deed of relinquishment of their shares in favour of
the other reversioners, in consideration of the latter having undergone much trouble and expense in connection with
a declaratory suit, and which had been successfully fought in respect of an alienation by the widow of the said
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WHAT MAY BE TRANSFERRED

proprietor, it was held that the deed was in effect and must be treated as a deed of assignment of reversionary
rights and since the assignment was made by some of the reversioners in favour of the remaining reversioners it
was a perfectly valid assignment.94

In Ananda Mohan Roy v Gaur Mohun Mullick,95 the issue before the Privy Council was, whether a contract by the
nearest reversioner to sell the property which was in the possession of a widow as an heir, was valid and
enforceable, and it was held that the prohibition under section 6(a) would become futile, if agreements to transfer
property, where acquisition of title was based on possibilities, could be enforced. Hence, the Privy Council held that
such a contract was void and unenforceable in a court of law.

The position under Mohammedan law is also the same.96 Thus, a Muslim daughter cannot validly agree to
relinquish her share in her father’s property which might devolve on her at his death.97

Agreement to transfer an expectancy is also void. Under English law, though the transfer of an expectancy is void,
however, in equity the assignment of an expectancy for consideration is valid,98 but is subject to the rules of
estoppel.99
Renunciation of Expectations for a Consideration

According to the literal interpretation of section 6(a), a person can neither transfer nor renounce either a chance of
inheriting the property in future or the chance of obtaining a legacy on the death of a kinsman and even if he does
that, he would not be bound by such transfer/renunciation as the same is expressly prohibited. However, judicial
interpretation of this section favours imposition of a rule of estoppel as against such transferors who without having
any present interest, agree to transfer the property based on future possibilities for a consideration and later try to
avoid the same under this legal rule. In Gulam Abbas v Haji Kayyam Ali1, a man ran into financial difficulties almost
to the point of insolvency. He had four sons, A, B, C and D. A and B paid his debts and C and D executed deeds in
favour of A and B acknowledging that in lieu of the such payment of debts of the father, the rights of inheritance at
the time of the death of the father from his property would also be available only to A and B, and C and D would not
raise any objections to that effect. Upon the death of the father, however, both C and D wanted to enforce their
inheritance rights on the ground, that the actual implication of the deed was a renunciation of future rights of
inheritance in favour of the brothers, and as such renunciation is void in terms of section 6(a), they would not be
bound by the same. TheApex Court held that a bare renunciation of an expectation to inherit cannot bind the
expectant heir’s conduct in future, but if the expectant heir goes further and receives a consideration and so
conducts himself as to mislead an owner into not making dispositions of his property inter-vivos, the expectant heir
could be debarred from setting up his rights when it does unquestionably vest in him. In other words, the principle of
estoppel remains untouched by this statement. Here, the two brothers who executed the deeds relinquishing their
claims for consideration could not, when rights of inheritance vested in them at the time of their father’s death claim
these; as such claim would be barred by estoppel. It was irrespective of the question whether the deed could
operate as valid legally and effective surrender of their spes successionis. Similarly, in Hameeda v Jameela2, for a
consideration and assignment of some property, the daughter relinquished her chance to obtain a share in her
father’s property. Both she and her husband purchased property with this amount. Upon the death of the father she
claimed inheritance on the ground that since the earlier renunciation was of spes successionis, she was not bound
by it. The court held that it was not a bare renunciation but was followed by the daughter receiving money from her
father that was sufficient for her to purchase land. She having enjoyed the benefit could not claim that she was not
bound by her relinquishment. It was possible that the father after having entered into this arrangement did not make
a testamentary disposition of the property that he might have done had it not been for the relinquishment
arrangement. The court said that the receipt of money by an heir apparent in lieu of his/her share in the property of
his/her father during his life time would estop the heir apparent from claiming the share of the property of the father
on the later dying intestate.

In Latafat Husain v Hidayat Husain,3 a Muslim man, H had children from his two wives. A gift was executed by his
mother in favour of his son from his first wife. Pursuant to that, the second wife, W insisted that he should execute a
wakf of his property making her children the beneficiaries and appointing her as the Muttawali of the same. In 1920,
two documents were executed: one was a deed of wakf by H under which he appointed W as the mutawalli, and
constituted her children as the beneficiaries; and the second was a deed of release executed by W under which she
relinquished her claim to her dower against the property of her husband, and also relinquished her claim to any
inheritance in the estate reserved by him. H died in 1928. Thereupon, contrary to the release made by her, W
brought a suit to recover her 1/8th share in the inheritance of H, though she did not press her claim for her dower.
The main issue for consideration was whether W could obtain a decree for possession of the 1/8th share in the
estate left by H when she had in his lifetime renounced her claim to such inheritance. Both the Courts below
dismissed the claim. In appeal, she contended that a relinquishment of the right of succession made by an heir is
 Page 5 of 7
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prohibited under Muslim Law and is null and void, and cannot stand in her way when seeking to recover her share
of inheritance.

The court observed that a contract made by an heir for consideration not to claim a certain property cannot be said
to be in any way illegal or forbidden by any law. If the consideration is received in cash and the contract is
subsequently sought to be enforced it would be a matter of discretion for the Court to refuse specific performance
and to make the plaintiff pay compensation when he is not carrying out his contract. But in cases where the
agreement has been effected in a form which makes it impossible for the Court to grant adequate compensation to
the aggrieved party the agreement may well be enforced, and the plaintiff be held bound by it.

In the present case, the facts revealed that it was W only who had herself been insisting that her husband should
execute the deed of gift in her favour in lieu of her desisting from her claim to dower and enforcing her prospective
rights as a heiress of her husband’s estate. The two deeds were executed at the same time, and formed part and
parcel of the same transaction. The court noted that the husband would not have executed the deed of wakf, if W
had not been willing to forego her claim to the inheritance and willing to abandon her claim to the dower. After the
death of H and acceptance of the deed of wakf and taking possession of the wakf property by her as the mutawalli,
she cannot be allowed to resile from her previous position and claim a share in the inheritance which she had
abandoned. This would be allowing her to commit a fraud on the deceased who would not execute the deed of wakf
if she had not been agreeable to relinquish her claim. The learned Judge came to the conclusion that the
arrangement between the husband and the wife was in the nature of a family settlement which is binding on her.
The court said:

We think that on this finding the plaintiff cannot be allowed to go back upon her renunciation as it is not possible to grant
her relief for possession by making her pay compensation to the defendants.

Here, W and her children were not entitled to obtain immediate possession of the wakf property without the wakf
which they succeeded in obtaining, and had remained in possession of the same for about eight years before the
husband died. The court held that she cannot be allowed now to go back upon the family settlement which, if not
enforced, would cause injustice to the defendants, who would suffer.

The law as interpreted by the judiciary is that if the heir apparent renounces/transfers his or her share in the
property, he would not be bound by such renunciation/transfer, but if for renunciation some benefit in the form of
consideration or property has been received, such benefit would operate as an estoppel against the heir apparent
and he would be prevented from claiming the property if and when the succession opens.
Future Possibilities of a Like Nature

Any other possibility of a like nature cannot be transferred.4 The term ‘of a like nature’ indicates that those
possibilities that are similar to the one explained above cannot be transferred, i.e., those based on hope or
expectancy. For instance, a person cannot transfer the prize money that he may win in a lottery or the monetary
consideration that he hopes to get after the completion of a sale, as there is a possibility that the sale may never
materialise or he never wins a lottery. Similarly, a fisherman going out to sea to catch fish cannot transfer the
possible catch that he may make, as it may be possible that he may not be able to catch any fish. Thus, the
mortgage of income derivable in future from scavenging work is invalid.5 The chance of receiving a gratuitous
payment at the discretion of an employer for services being or about to be rendered,6 or the chance that future
worshippers will give offerings to the temple,7 or an agreement for the sale of otkarnam lands,8 are mere
possibilities and cannot be transferred. A right to pala or turn of worship is not transferable.9 Neither the temple, nor
the deities nor the shebaiti right can be transferred by sale for pecuniary conditions, and such transfer is void ab
initio.10 However, the right of a Mahabrahmin to receive offerings made by pious Hindus11 is a valuable, definite and
tangible right; is not merely a possibility,12 and is therefore, capable of being transferred.13
Future Property

Property of any kind may be transferred,14 but interest in property arising in future cannot be transferred.15 A
transfer of future property only amounts to a contract, which may be enforced when the property comes into
existence.16 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 property17. 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.18
A Right of Re-entry
 Page 6 of 7
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A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of
the property.19 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.20

79 Robinson v Macdonnell, (1816) 5 M & section 228; Re Mudge (1914) 1 Ch 115 (CA); Re Bowden, Hulbert v Bowden,
(1936) Ch 71, 74, 14 Vin Abr 50.
80 ‘The law doth not allow of grants except there be a foundation of an interest in the grantor’. Thus, a tenant of land may
assign all his interest in the future crops of that land, or a parson may grant all the tithe wool that he is to have in such a
year, but a man cannot grant all the wool that is to grow on the sheep he may subsequently buy; See Grantham v
Hawley, (1615) Hob 132; Petch v Tutin, (1846) 15 M & W 110; a deed of gift disposing only potential property is
effective without delivery see Thomas v Kelly, (1888) 13 App Cas 506,519 (HL).
81 See Lunn v Thornton, (1845) 1 CB 379; Tapfield v Hillman, (1843) 6 Man&G 245 (where, however, on a question of
construction of the instrument, it was held that future chattels were not included).
82 Thomas v Kelly, (1888) 13 App Cas 506, 515 (HL).
83 Lunn v Thornton, (1845) 1 CB 379.
84 See The Transfer of Property Act, 1882, section 6(a). A voluntary assignment of an expectancy does not create an
enforceable contract, even if by deed, Meek v Kettlewell, (1843) 1 Ph 342; Re Ellenborough, Towry Law v Burne,
(1903) 1 Ch 697.
85 Samsuddin v Abdul Husein, (1906) 31 Bom 165.
86 AIR 1933 Mad 795.
87 See The Transfer of Property Act, 1882, section 6(a).
88 Abdul Wahid v Nurabibi, (1885) 11 Cal 597 (PC).
89 Sham Sunder v Achhankunwar, 25 IA 183; Harnath Kaur v Inder Bahadur, AIR 1922 PC 403; Annanda Mohan v Gour
Mohan, AIR 1923 PC 189; Amritnarayan v Gaya Singh, 45 IA 35, (1918) ILR 45 Cal 590; Annanda Mohan v Gour
Mohan, AIR 1923 PC 189 : 48 Cal 536, 25 Cal WN 496; Jatilal v Benimado, AIR 1937 Pun 280; Bhagwati v Jagdam,
AIR 1921 Pat 260; Gurbhuj v Lachhman, AIR 1925 Lah 341; Mahadeo Prashad v Mathura, AIR 1931 All 589;
Karusinga v Narsinha, AIR 1938 Bom 121; Shah Nawaz v Ghulam Murtaza, AIR 1942 Lah 138.
90 Amrit Narayan v Gaya Singh, (1918) ILR 45 Cal 590.
91 Jaganadav Raju v Rajah Prasada Rao, 39 Mad 554; Annanda Mohan v Gour Mohan, 48 Cal 536.
92 Khunnilal v Govinda, 15 Cal WN 545; Hardei v Bhagwan, 24 Cal WN 105 PC; Ramgouda v Bhausaheb, AIR 1927 PC
227, 54 IA 396; Hiran Bibi v Sohan Bibi, AIR 1914 PC 144; Annanda Mohan v Gour Mohan, 25 Cal WN 496; Subbu
Chetty v Raghava, AIR 1961 SC 797 : [1961] 3 SCR 624.
93 Umashanker v Ramcharan, AIR 1939 All 689; Sahu Madhodas v Mukund Ram, AIR 1955 SC 481; Pannommal v
Srinivasarangan, AIR 1956 SC 162; Ramcharan v Girja Nandini Devi, AIR 1966 SC 323; Ramgouda v Bhausaheb, AIR
1927 PC 227.
94 Gujar v Auliya, AIR 1914 Lah 460.
95 AIR 1923 PC 189.
96 Asabeevi v S. Kuruppan, (1918) ILR 41 Mad 365.
97 Abdul v Abdul, AIR 1959 Mad 131; Samsuddin v Abdul Husein, (1906) 31 Bom 304.
98 Tailby v Official Receiver, (1883) 13 App Cas 523 (HL).
99 An assignment of after-acquired property under English law, when made for valuable consideration, operates in equity
as a contract which is enforceable against the assignor, and which, as soon as he acquires property which can be
identified as that comprised in the assignment, becomes an equitable charge upon that property. See Holroyd v
Marshall, (1862) 10 HL Cas 191; Tailby v Official Receiver, (1888) 13 App Cas 523, HL; Re Ellenborough, Towry Law v
 EASEMENT
Poonam Pradhan Saxena: Property Law, 3rd ed
Dr Poonam Pradhan Saxena

Poonam Pradhan Saxena: Property Law, 3rd ed > Poonam Pradhan Saxena: Property Law, 3rd
ed > Chapter 2 Of Transfers of Property by Act of Parties > (A) TRANSFER OF PROPERTY,
WHETHER MOVABLE OR IMMOVABLE

Chapter 2 Of Transfers of Property by Act of Parties

(A) TRANSFER OF PROPERTY, WHETHER MOVABLE OR IMMOVABLE

EASEMENT
An easement is a right which the owner or occupier of certain land21 possesses for the beneficial enjoyment22 of
that land, to do and continue to do something,23 or to prevent and continue to prevent something from being done,
in or upon, or in respect, of certain other land that is not his own.24 It is a privilege without profit that the owner of
one tenement has a right to enjoy in respect of that tenement, in or over the tenement of another person, where the
owner of the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the
former.25 It includes profits à pendre, i.e., a right to enjoy the benefits arising out of land. It also includes a right to
enjoy the land under the water of another,26 the right to dry clothes over flat masonry and roofs of shops,27 the right
to open and shut the windows of a person’s house,28 the right of way for municipal employees over the land of
other.29 Where A, as 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. Similarly, if A has a right to go to his neighbour’s
house for the purpose of taking water for his household, it would be an easement. Other examples of easements
are the right to erect scaffolding upon the neighbour’s property to build or paint one’s own wall;30 or to stock manure
in another’s field.31

The land for the beneficial enjoyment over which a right of easement exists is called the dominant heritage; and the
owner or occupier of that the dominant owner, and land on which the liability is imposed, is called the servient
heritage and the owner or occupier of it is called the servient owner.

An easement cannot be transferred apart from the dominant heritage32 to which, by the nature of the right, it is
attached.33 This prohibition does not touch the creation of new easements.34
Interest Restricted to Personal Enjoyment

An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.35 As the
right is personal in character, it is untransferable. For instance, two brothers partition a property and give a right of
pre-emption 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;36or as a co-sharer;37 priestly offices or emoluments attached to it,38 office of a mutwali of a
wakf;39 or of shebait of a temple,40 or service tenures, e.g., ghatwali tenure in Bengal;41 personal imams;42 a right of
pre-emption;43 kharkrobi right are interests restricted to personal enjoyment and cannot be transferred.44

The right to receive offerings as a co-sharer is dependent upon the right of performance of pooja which right is non
alienable and as such cannot be transferred by a sale deed. A person gets no right to perform pooja on the basis of
a sale deed but he would have a right to share the offerings nevertheless.45 A right under a licence is not a property
that can be transferred or inherited and therefore a person cannot obtain a licence for being a stamp vendor only on
the ground that his father held such a licence.46
Right to Future Maintenance

A right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred.47 This
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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.48 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.49 A bare
corporeal and personal right of future maintenance is inalienable.50 Where the owner of certain property, transferred
it to a trustee upon trust to pay him certain allowances per month from the trust property explaining in the deed of
settlement that it was for the purposes of maintenance, it was held that it was not a restricted right.51
Mere Right to Sue

A mere right to sue cannot be transferred.52 ‘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.53

There is a distinction between property, an interest in property and a right to sue. A transfer of a right to recover
profits which arise out of land along with a transfer of land, is assignable.54 Similarly, where the property is
transferred along with a right to recover damages or compensation in respect of the property, the assignment is
valid.55 A right to sue for damages resulting from a breach of contract,56 a right arising out of torts,57 a claim to
recover damages from an agent for negligence in failing to collect rent58 or a right to sue him for accounts and to
recover such sums of money,59 a claim to damages for use and occupation from a tenant,60 a bare claim for past
mense profits,61 a right of indemnity of an agent against the principal,62 is unassignable. A sale by an official
assignee of land in possession of alienee from an insolvent is a right to litigate, and therefore invalid.63 However, a
transfer of arrears of rent with immovable property,64 an assignment of property in the hands of an agent,65 the
assignment of a share in the assets of a partnership,66 a partner’s right to call upon the other partners to account,67
a right to be indemnified,68 a right to contribution,69 a claim for the recovery of the earnest money upon failure of the
other party to perform his part of the contract,70 a transfer of a right to receive from the lessee an installment of
revenue together with an interest which the lessee was bound to pay under the terms of a lease,71 is not a mere
right to sue and is assignable. Similarly, in an actionable claim, a letter of subrogation not being an assignment of a
mere right to sue, is valid and enforceable.72

Where a person purchases a tank and brings a suit by virtue of a covenant running with the land, it was held that it
cannot be said that what was transferred was a mere right to sue. The right here was incidental to the enjoyment of
the property.73

Where there is no right vested in the plaintiff of user, permissive or otherwise, merely confirming the right to institute
an action cannot be recognized by Court as it “savours of maintenance of champerty” and section 6(e) of the
Transfer of Property Act, 1882 bars transfer of a mere right to sue.74

In Rishi Raj v Harish Gulati,75 one W owned the land that was later acquired and possessed by the Government.
She left two legal heirs, a son and her husband. As a result, both the two heirs received compensation in lieu of the
land in dispute, but did not find the said compensation sufficient. After the demise of father, the son being aggrieved
by the quantum of compensation received, filed a reference petition under section 18 of the Land Acquisition Act,
[Link] the application stood lodged, he executed two separate assignment deeds, for a valuable consideration,
in favour of B and C. The son transferred/alienated, assigned all his rights of compensation in the aforesaid land.
The issue before the court was whether the assignment of right to sue to receive enhanced compensation is
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EASEMENT

permissible under section 6(e) of the Transfer of Property Act, 1882? The court holding it to be permissible
observed that:

“..Right to receive compensation is statutory, which crystallized on acquisition of property. Right to claim enhancement in
compensation is also statutorily conferred. It is this right, which has been assigned. No doubt that enhancement in
compensation is a mere possibility but that possibility is coupled with an interest to receive and realize the compensation.
Clause (e) of S. 6 of the Act refers to a mere right to sue, transfer of which is also prohibited. But what has been transferred
is not a bare right to sue but right to receive and realize the enhanced compensation.”

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.76 Even an eviction decree/order may be an asset
and the continuation of existence may lie with the transferee landlord company.77
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.78 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.79

The occupant of a Gavawali gaddi does not hold a priestly office or an office of a religious nature and transfer of
such gaddi would be a transfer of a business with its assets and goodwill and is therefore valid.80 A gratuity payable
to the legal representative of a public officer can be transferred.81 A railway servant cannot agree to the attachment
of part of his salary.82 However, an agreement by which a person agreed to pay a certain proportion of his income
to his brother in consideration for his having been maintained and educated by the latter, does not attract this
provision merely because that person subsequently becomes a government servant. The amount agreed to be paid
can be paid from his savings or any other source, and therefore it does not amount to transfer of a public office.83

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,84 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.
Stipends, etc.

Stipends allowed to military, naval air force and civil pensioners of the government and political pensions cannot be
transferred.1 Political pension refers to pensions and allowances paid to political prisoners, or pension granted
under a treaty entered into by the Government of India with another sovereign country.

What is made non-transferable is the stipend paid to civil pensioner and not the pension of that civil pensioner.2
Pension means periodical payments of money by the government to the pensioner,3 or allowance or any other
stipend granted not in respect of any right, privilege perquisite or office but on account of past services or particular
merits or as compensation to the dethroned princes, their families or dependents.4 A bonus given by the
government,5 or an allowance made in lieu of a presumed grant of lands,6 or grant of land in lieu of pension is not
pension;7 and therefore, is transferable. There is no presumption that jagir is a political pension.8 As aforesaid, a
pension retains its character as long as it is unpaid and in the hands of government, but as soon as it is paid to the
pensioner or his legal representatives or agent it can be attached or transferred.9
Transfer Opposed to the Nature of Interest

No transfer can be made insofar as it is opposed to the nature of the interest affected thereby.10 Thus, things
dedicated to public or religious uses,11 regalia, heirlooms and debutter property,12 or service inam,13 cannot be
transferred.
Transfer for Unlawful Object or Consideration

No transfer which is for an unlawful object or consideration is permissible.14 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. For instance, a transfer of property so that it could be used as a brothel, a gambling den or for illicit
 Page 4 of 8
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cohabitation, by way of payment of a bribe,15 to stifle a prosecution,16 or to seek adoption of a child,17 or marriage of
a daughter,18 would be opposed to public policy and therefore void. It is also in consonance with section 23 of the
Indian Contract Act, 1872 which provides that a consideration or object is unlawful if :

(i) It is forbidden by law; or

(ii) Is of such a nature that it defeats the provisions of any law; or
(iii) Is fraudulent; or
(iv) Involves or implies injury to the person or property of another; or
(v) The court regards it as immoral, or;
(vi) Is opposed to public policy.

A sale of the property to defeat the rights of the creditors, an assignment of money to defeat the provisions of
insolvency Act,19 a sub-lease of a farm for sale of opium,20 a transfer of occupancy land where prohibited by law,21 a
lease of property for the use of it as a brothel,22 would therefore be unlawful, unless the transferor did not know of
the intended use23. Transfer of property to a sex worker for future cohabitation,24 or a bequest in a Will conditional
on the continuation of immoral relations25 is for unlawful consideration as it is for immoral purpose, and the case
would be covered by this provision. However, a mortgage26 or a gift27 in consideration of past cohabitation would be
valid.
Transfer to a Person Legally Disqualified

A transfer to a person legally disqualified to be a transferee is not permitted.28 Under section 7, the transferee must
be competent to contract and should not have been disqualified legally. While competency to contract involves the
twin elements of attainment of the age of majority and soundness of mind, legal disqualification refers to certain
disabilities that have been imposed specifically by the statutes preventing certain category of persons to be
transferees in certain cases and in specific capacity. For instance, if an officer or any person is assigned officially a
duty in connection with the sale of property, he cannot purchase the same himself and in such cases, he would be
legally disqualified to be a transferee.29 Similarly, the TP Act, 1882 prohibits a judge, a legal practitioner or an officer
connected with a court from purchasing an actionable claim.30 Though a transfer to a minor is void,31 yet, a minor is
not disqualified to be a transferee,32 and can be a purchaser.33 A mortgage in favour of a minor who has advanced
the whole of the mortgage money is enforceable by him or on his behalf.34 Similarly, a minor in whose favour a valid
sale deed is executed, is competent to sue for the possession of the property conveyed thereby.35 However, a lease
executed by a minor would be void.36
Statutory Prohibitions on Transfer of Interest

A tenant having an untransferable right of occupancy37 cannot transfer his interest.38 This clause contains an
exception to the general rule that all tenancies or leaseholds are transferable, and gives effect to the rules provided
under different enactments, whereby certain categories of leasehold interests or tenancies are made
untransferable. For instance, under the Bengal Tenancy Act, 1885,39 a land in the possession of a ryot is
untransferable, and if transferred even by a mortgage, the landlord is empowered to re-enter on the ground that the
ryot has abandoned his holdings.

Non-permanent tenures created before the passing of the Act40 are untransferable,41 but permanent tenures can be
transferred.42 The mortgagee of an untransferable holding,43 a co-sharer landlord taking possession of an
untransferable holding after purchase of the share,44 or a stranger who makes a purchase and afterwards acquires
a share in the landlord’s right,45 is a trespasser and liable to be evicted.

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.46 A
promoter can charge cost of open parking space and stilt parking space in proportion to carpet area from each flat
purchaser but cannot sell the same at all.47

21 ‘Land’ includes things permanently attached to earth: See The Indian Easements Act, 1882, section 4, Explanation. It
also includes land under water: Chandee Churn Roy v Shib Chunder Mundul, (1880) ILR 5 Cal 945, see also
Ramessur Persad Narain Singh v Koonj Behary Pathuk, (1879) ILR 4 Cal 633. Easements are attached to land for the
beneficial enjoyment of which is created and run with it, see Chinnasami Goundan v AS Balasundora Mudaliar, AIR
 PERSONS COMPETENT TO TRANSFER
Poonam Pradhan Saxena: Property Law, 3rd ed
Dr Poonam Pradhan Saxena

Poonam Pradhan Saxena: Property Law, 3rd ed > Poonam Pradhan Saxena: Property Law, 3rd
ed > Chapter 2 Of Transfers of Property by Act of Parties > (A) TRANSFER OF PROPERTY,
WHETHER MOVABLE OR IMMOVABLE

Chapter 2 Of Transfers of Property by Act of Parties

(A) TRANSFER OF PROPERTY, WHETHER MOVABLE OR IMMOVABLE

PERSONS COMPETENT TO TRANSFER

[s 7] Persons competent to transfer.—Every person competent to contract and entitled to transferable property,
or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or
in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and
prescribed by any law for the time being in force.

End of Document
 CAPACITY TO TRANSFER PROPERTY
Poonam Pradhan Saxena: Property Law, 3rd ed
Dr Poonam Pradhan Saxena

Poonam Pradhan Saxena: Property Law, 3rd ed > Poonam Pradhan Saxena: Property Law, 3rd
ed > Chapter 2 Of Transfers of Property by Act of Parties > (A) TRANSFER OF PROPERTY,
WHETHER MOVABLE OR IMMOVABLE

Chapter 2 Of Transfers of Property by Act of Parties

(A) TRANSFER OF PROPERTY, WHETHER MOVABLE OR IMMOVABLE

CAPACITY TO TRANSFER PROPERTY

For a person to be competent to contract, two things are necessary, i.e., he should have attained majority and be of
sound mind, and should not be disqualified to transfer property under the law to which he is subject to. Thus, a
person who is competent to contract can validly transfer the property if:

(i) He is the owner;

(ii) If he is not the owner, then he must possess authority sustainable in law to transfer the same.

The term ‘authority’ can be personal, under an agency or acquired under a law or statute or under the direction or
permission of the court. It can be in the shape of a power of attorney or in the capacity of an agent. A vendor cannot
transfer a title or right better than what he has over that piece of land.48 As the conditions of validity of a mortgage
must entail both parties, mortgagor and mortgagee must be competent to enter into a contract therefore, a minor,
being incompetent to contract cannot be a mortgagor or mortgagee.49 The essence of nemo dat quod non habet is
the transactional exigibility i.e, the binding effect of prior property rights of subsequent transferee irrespective of
notice or knowledge of prior property rights on part of subsequent transferees.50

The karta of a joint Hindu family, though not the sole owner of the property, is authorised to transfer the same. His
authorisation is specifically limited by terms like legal necessity, benefit to the estate, or for performance of
indispensable duties. Similarly, a minor’s guardian is authorised to alienate the property of the minor with the
permission of the court. An executor or administrator can dispose of the property of a deceased.51 A receiver has
the authority to transfer property under the directions of the court. Therefore, a contract or transfer by a minor,52 or
of a person of unsound mind,53 or where the property is under the management of Courts of Wards,54 or a
judgement debtor whose property is being sold in execution by the collector,55 is void.

In absence of title, a person should have authority to transfer the property.56 An agent managing the property of the
principal,57 or a de facto guardian of a minor,58 is not competent to sell the property. Where the duties of a person
extended only to collect the rent and manage the estate, he would not be empowered to sell the estate.59 Similarly,
where the guardian of a minor sells his property without obtaining permission from the court, such a sale would be
by a person not competent to transfer the same, and can be set aside.60 If a person of unsound mind secretively
and without informing his wife and children sells all his property to a stranger depriving his wife and child of the
same, the transfer would be invalid as he being a person of unsound mind was not competent to transfer his
property.61 Where the vendors did not have a complete title over suit property and the agreement was not executed
by all co-sharers of the partly owned property, the same cannot be enforced by the vendee.62 However, if property
is transferred for a consideration in good faith without misrepresentation of fraud and transferee had taken
reasonable steps to ascertain title of transferor, then such transfer would not be void.63 Where before a mortgage is
created in respect of immovable property, and borrower had already leased out the same in favour of a lessee
either as the owner or as a person competent or authorised to transfer the immovable property, the lessee will have
the right to enjoy the leased property in accordance with terms and conditions of lease irrespective of whether a
subsequent mortgagee has knowledge of such a lease or not.64 It has been held in Shakuntala Devi v State of
 OPERATION OF TRANSFER
Poonam Pradhan Saxena: Property Law, 3rd ed
Dr Poonam Pradhan Saxena

Poonam Pradhan Saxena: Property Law, 3rd ed > Poonam Pradhan Saxena: Property Law, 3rd
ed > Chapter 2 Of Transfers of Property by Act of Parties > (A) TRANSFER OF PROPERTY,
WHETHER MOVABLE OR IMMOVABLE

Chapter 2 Of Transfers of Property by Act of Parties

(A) TRANSFER OF PROPERTY, WHETHER MOVABLE OR IMMOVABLE

OPERATION OF TRANSFER
[s 8] Operation of transfer.—Unless a different intention is expressed or necessarily implied, a transfer of property
passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and
in the legal incidents thereof.

Such incidents include, when the property is land, the easements annexed thereto, the rents and profits thereof
accruing after the transfer, and all things attached to the earth;

and, where the property is machinery attached to the earth, the moveable parts thereof;

and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer,
and the locks, keys, bars, doors, windows, and all other things provided for the permanent use therewith;

and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for
other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer;

and, where the property is money or other property yielding income, the interest or income thereof accruing after
the transfer takes effect.

The clause ‘unless a different intention is expressed or necessarily implied’ shows that this section operates in
absence of an express or implied contract between the parties. If the contract provides otherwise, the provisions of
this section would not have any application. The rule enunciated here is designed to avoid confusion or
speculations with respect to ‘what, if any’ in the property passes with its transfer. Thus, the first thing would be to
read the instrument as a whole to find the intention of the parties.67 If the transferor transfers all the interest that he
possesses in the property that he possesses on that date, the entire interest that he had, will pass. For example, A
transfers a land on which there are trees or a well.68 If nothing to the contrary is specified, the trees or the well69
would pass along with the land to the buyer. Where the intention of the transferor was to transfer the land within the
well-defined boundaries, any erroneous statement of survey number or omission to state it would be rejected as
false demonstration.70 In case of mis-description with respect to plot numbers and boundaries, the description as to
boundaries would prevail to ascertain the real intention of the parties.71 Thus, where in grant of mining lease, a map
was annexed to the grant, which showed an area less than what was stated in the grant, it was held that the terms
of grant would prevail.72 However, where the schedule is annexed to the main document, the description of the
property in the schedule cannot be given any overriding importance over actual area specified in the document as
to the extent of the land determined upon measurement.73

What property is actually conveyed depends on the terms74 and agreements of the contract but if the language is
plain and unambiguous, the same must be adhered to.75 For instance, the use of the words ‘Malik’ indicates an
intention to confer an absolute estate,76 unless the context indicates a different meaning,77 or if a life interest is
 Page 2 of 5
OPERATION OF TRANSFER

granted.78 In absence of reservation or exceptions, interests in zamindari conveyed through the deed would include
the land, houses on it, the bazaar on the land and all the rents and profits derived from it,79 or the Sarabarakari
interests subordinate to it,80 sale of grove would include the right to the land.81 Conversely, a sale of land, it would
also include the interest in the mango trees82 growing on it. Use of unqualified conveyance would later deprive the
transferor to claim any rights in the property.83 In the absence of actual possession, a symbolic possession can be
transferred to complete the grant.84

With regard to operation of transfer of property, the term of exemption provided in the special law shall apply as it is
clear and unambiguous.85 A registered settlement deed cannot be subsequently cancelled by executing a
cancellation deed. The deed can be cancelled only by the court upon proof that it was executed through fraud,
undue influence mistake or any other ground accepted by the court and not by the settler unilaterally.86 In Vitthal
Maharu Patil v Fakira Bhavsing Patil,87 a registered sale deed was executed in favour of the transferee and
possession was handed over to him. After around a gap of 12 years, the transferor alleged that along with the sale
deed a deed of reconveyance was also executed in his favour. It was held that the claim would be negated in
absence of any endorsement of reconveyance or a registered sale receipt.
Hindu Law Prior to the Enactment of The Hindu Succession Act, 1956

Under Hindu law as it stood prior to the enactment of The Hindu Succession Act, 1956, a Hindu woman generally
took a limited interest in the property conferred on her. The Privy Council had ruled that courts could rightly
presume in such cases, that the immovable property conferred on the widow in absence of a specific mention with
respect to her interest in it, would be taken by her as a limited owner. It was only when the deed specifically
declared that she was to be an absolute owner that she took the property absolutely.88
Court Sales

This section applies to a contract between the parties only and does not apply to court sales,89 as the title, interest,
etc, in the property that is sold at a court auction is determined by what the court intended to sell, and may vary with
the facts and circumstances of each case.90
Different Intention

The general rule, therefore, is that whatever interest the transferor had in the property, passes to the transferee with
this transfer, unless a different intention is expressed. In such cases, only that interest will pass which has been
specifically mentioned. For instance, a man, A, Wills his property in favour of his father and wife, giving to each,
one-fourth of his property. The wife, on the death of A, transfers this property to B stating in the deed that she is
transferring to B what she had received under the Will from her husband. This Will later was held invalid by the
court, and the widow in the capacity of a class I heir, of the husband inherited his total property to the exclusion of
the father. Here, what she had transferred or conveyed in the property was only the one-fourth share due to the use
of the words ‘her entitlement under the Will’ and not her total property that she later inherited from her husband.

In interpretation of agreements, redundant and inapplicable clauses should be ignored in standardized forms
adopted by insurance companies, statutory corporations and banks.91 In construing the terms of the contract of
insurance, the words expressed by the parties must be given paramount importance.92

The construction of the document must emphasise its substance and not merely its form. Where the deed contains
the words that ‘the property is given to you so that you can perform religious ceremonies and festival and provide
for the poor as well for your own support’, it would indicate that what was conveyed was a limited estate,93 and not
an absolute ownership over it.
Easements and Rents and Profits

Where the property is land, the easements annexed thereto, the land and the minerals beneath it also pass with the
transfer.1 For instance, in a sale of land, the purchaser acquires use of water from the well2 on the land or a right of
way,3 which the seller has, but the same does not include a right to use a staircase when it is not an easement of
necessity.4

If the property purchased is in occupation of the tenants who were paying rent to the owner, these rents and profits
accruing from the property after the transfer5 but not before it,6 also pass with the transfer.
Things Attached to Earth

All things attached to the earth,7 like upon a transfer of the land, all structures upon it, including the house,8
 Page 3 of 5
OPERATION OF TRANSFER

buildings,9 trees,10 including fruit trees,11 pass by necessary implication, and it is not necessary to mention them.12
However, the contrary may not be true, thus, transfer of trees will not, by itself, justify the inference that the land
was also transferred.13

Things embedded in earth such as shells14 and minerals also pass with the sale of the land.15 However, in case of
lease, the passing of rights with respect to minerals would depend upon the terms of the grant.16 The owner of the
land may not necessarily be the owner of its superstructure,17 nor would the subsoil rights form a part of surficial
rights of land, if the contract so says.18 In Ashok Kumar v Chief Controlling Revenue Authority,19 the owner of the
land executed a lease of the land in favour of B for 30 years. B constructed a hotel on it. The ownership rights of
this Hotel were not with the owner of the land, but vested in B. At the time when the owner of the land sells the land
and not the building with the hotel, the authorities would not be competent to add the value of the building/hotel in
value of land for assessing the market value of the property as the sale here would be of exclusively the land and
not the hotel over it which stands specifically excluded by virtue of section 8 of the Transfer of Property Act, 1882.
Similarly, a property given on lease would confer in favour of the lessee a right to enjoy the property in accordance
with terms and conditions of lease and a subsequent mortgage would have no effect on his enjoyment irrespective
of whether a subsequent mortgagee has knowledge of such a lease or not.20
Other Annexations

Where the property is machinery attached to the earth the movable parts thereto,21 and where the property is a
house, the easements annexed thereto, the rent thereof accruing after the transfer and the locks, keys, bars,
doors,22 windows, and all other things provided for permanent use therewith, will also pass.
Debts and Securities

The mortgaged debt is not an actionable claim,23 but a debt secured by charge may be assigned, and with its
assignment, the charge annexed to it also passes on to the transferee.24
Auction Sales

In cases of a land sold in an auction, everything attached with the said land passes to the transferee.25 Auction sale
of parti land where there is no mention of any structure or house on land in the auction sale or sale certificate or
dakhalnama, the purchaser cannot be said to have acquired right, title or interest or structure on land as the title of
auction purchaser is derived from sale certificate and not from the dakhalnama as ‘dakhalnama is not a title deed’.26

67 Ram Chandra v Kalyan Singh, AIR 2006 All 184; Bishwanath Prasad Singh v Rajendra Prasad AIR 2006 SC 2965;
Union of Inida v Millenium, Mumbai Broadcasting Ltd, AIR 2006 SC 2751; Harbans Singh v Takamani Devi, AIR 1990
Pat 26; see The Transfer of Property Act, 1882, section 8.
68 Arkkani v Subramaniam, AIR 2007 (NOC) 2118 (Mad).
69 Arkkani v Subramaniam, AIR 2007 (NOC) 2118 (Mad).
70 Kalidas v Kanhaiyalal, (1884) 11 Cal 121.
71 Chumar v Naraynan Nair, AIR 1986 Ker 236.
72 Sheodhyan Singh v Sanichara Kuer, AIR 1963 SC 1879; Babaji Dehuri v Biranchi Ananta, AIR 1996 Ori 183.
73 Narain Prashad Singh v State of Bihar, AIR 1983 Pat 244.
74 Sumathy Amma v Sankara, AIR 1987 Ker 84.
75 Ram Narian v Peary, (1883) ILR 9 Cal 830; Jyoti Prasad Singh v Seddon, AIR 1940 Pat 516; Bisheshwar Singh v
Achhaibar Din, AIR 1941 Oudh 507. See also Decota Din v Gur Prasad, AIR 1955 All 292; Umrao Singh v Kacheru
Singh, AIR 1939 All 415.
76 Shyan Sunder Ganeriwala v Delta International Ltd, AIR 1998 Cal 233.
77 Lalit Mohun v Chukkun Lal, (1897) ILR 24 Cal 834; Surajmani v Rabina, (1908) ILR 30 All 84; Bhaidas v Bai Gulab, AIR
1922 PC 193; Jagmohan Singh v Srinath, AIR 1930 PC 253; Saraju Bala v Jyotirmoyee, AIR 1931 PC 179.
78 Mahomed Sahmsool v Shewukram, (1875) 14 Beng LR 226; Motilal v Advocate General of Bombay, (1911) ILR 35
Bom 279; Mithibai v Meharbai, AIR 1922 Bom 179; Ashurfi Singh v Biseswar, AIR 1922 Pat 362. See also Shalig Ram
v Charanjit, AIR 1930 PC 239; Jagmahun Singh v Srinath, AIR 1930 PC 253, wherein it was held that a Hindu wife
 ORAL TRANSFER
Poonam Pradhan Saxena: Property Law, 3rd ed
Dr Poonam Pradhan Saxena

Poonam Pradhan Saxena: Property Law, 3rd ed > Poonam Pradhan Saxena: Property Law, 3rd
ed > Chapter 2 Of Transfers of Property by Act of Parties > (A) TRANSFER OF PROPERTY,
WHETHER MOVABLE OR IMMOVABLE

Chapter 2 Of Transfers of Property by Act of Parties

(A) TRANSFER OF PROPERTY, WHETHER MOVABLE OR IMMOVABLE

ORAL TRANSFER
[s 9] Oral transfer.—A transfer of property may be made without writing in every case in which a writing is not
expressly required by law.

Prior to the enactment of the TP Act, 1882, the primary condition for the transfer of property was the delivery of
possession of the property. However, under the TP Act, 1882, the transfer of every tangible property, reversion or
other intangible thing where its value is more than Rs 100; by mortgage (other than a mortgage by deposit of title
deeds) where the principal money secured by way of loan is more than Rs 100, by gifts irrespective of the value of
the property, or lease for more than a year or where rent for more than 12 months has been taken in advance, must
be made in writing.27

Where the law requires a transfer to be made in writing, an oral transfer will not convey any right from the transferor
to the transferee.28 For example, A sells his house to B for Rs 50,000 on the basis of an oral agreement, by delivery
of keys of the same. B does not acquire a title as the consideration being more than Rs 100, the transfer must take
place with the help of a written, attested, and registered document. Similarly, A, an old man of 80 years, gives to his
friend’s son B, the keys of all the rooms in his house in which both of them were living, as the latter had looked after
him when he was sick. While handing over the keys, A expressly told him to retain the possession of the same, as
the owner in presence of all his relatives. This desire expressed by the owner, coupled with the delivery of keys as
well as the property papers, would not make B the owner of the property, as the gift of immovable property has to
be executed with a written, attested and registered document.29 Even if A, in this case, goes to the office of the
relevant authorities for mutation of names and testifies the gift in presence of the officials, no right will pass from A
to B with respect to this property, as the transfer has failed to meet the requirement of law.

Even though an oral agreement to sell is possible, the onus is on the person who pleads such oral sale agreement.
As an unregistered document is unenforceable in the eyes of law for the transfer of property,30 an assignment deed
that conveys title in property for more than Rs 100/ must be registered.31 Conveyances that are not required to be
compulsorily written can be transferred orally. Thus, a transfer of property may be made without writing in every
case in which writing is not required by law.32

A partition of joint family,33 a surrender of lease,34 a release by a mother of her interest in joint family property,35 a
grant of land for life in discharge of a claim for maintenance,36 a contract to settle property in consideration of
marriage,37 the relinquishment of a right by a joint family member38 or generally to recover a share of immovable
property,39 or assignment of immovable property under a court’s decree passed on the basis of a family settlement
contained in a composite deed,40 or a grant of a guzara,41 do not require writing. As the concept of joint family
property or coparceners under Hindu Law is not applicable to Christians, a Christian who is an absolute owner of
the property is entitled to divide and distribute his property as he considers fit.42