II Year B.A., LL.

B– Semester-IV
Property Law
 SECTION 6 OF THE TRANSFER OF PROPERTY ACT, 1882

INTRODUCTION

The statute went into effect on July 1, 1882. The Act's Preamble states that it is an Act to
define and alter the law pertaining to property transfers by parties' act (i.e. not by operation of
law). The goal of the Transfer of Property Act to harmonise the rules governing the
transmission of property between living individuals with the rules governing its devolution
upon death, and so to complete the job begun in drafting the law of intestate and testamentary
succession. The Act is confined to property transfers made by agreement between parties, as
opposed to transfers made by operation of law, as as in cases of inheritance (succession),
insolvency, forfeiture, or sale in execution of a decree. On considerations of fairness, equity,
and good conscience, certain of the general requirements of the Transfer of Property Act may
be applied even to transfers by operation of law.

'Property of any sort may be transferred, save as otherwise permitted by this Act or by any
other legislation for the time being in effect,' says Section 6 of the Act. As a result, this
section of the Act deals with property transfers in the sense that it defines what can be
transferred. The section is divided into nine subclauses, each of which discusses the different
types of property transfers that are prohibited. According to the Act, everything else can be
legally transferred in a variety of ways and forms.

INGREDIENTS OF SECTION 6

1. Spes Successionis [sec 6(a)]

The term Spes successionis’, meaning 'expectation of succession', refers to the prospect of
obtaining something in the future through succession. The following are included in Section
6(a) of the TP Act:

i. The chance of an heir-apparent succeeding to an estate - The word 'heir

apparent' denotes the absence of an heir for a live individual. An heir is a person
who inherits the property of another when that person dies intestate or leaves his
possessions to him in a will. If a person dies without leaving a valid will, they are
said to be intestate. As a result, who will be the heir can only be determined at the
 moment of a person's death. A mere potential or expectation of an heir inheriting
an inheritance is not a transferable asset. The transfer in law is invalid ab-initio if
a person transfers spes successionis. Even though the transferor who transfers a
chance may in reality become the owner of the same property in the future, it does
not confer any rights in favour of the transferee.

ii. Chance of legacy – The potential of a relative inheriting a legacy is likewise a

possibility that cannot be transferred. Even if the testator has agreed to the
relationship that would leave him a legacy, this is true. Only after the testator's
death does a will or inheritance become effective. If a testator has made two or
more wills, only the most recent will be valid. Because the legatee may or may not
survive the testator, and the testator may have altered the name of the legatee in
his final will and testament, the likelihood of receiving a legacy is unpredictable.
As a result, the possibility of leaving a legacy has been deemed non-transferable.

The Supreme Court declared in Sheshammal v Hasan Khani Rawther 1 that the transfer of a
future claim to property is not acceptable and that the heir apparent is estopped from doing
so. The right to receive future offerings is similarly regarded a mere possibility in this sense,
and therefore cannot be transferred.

iii. Any other possibility of like nature - Any other possibility is analogous to spes
successionis, or the inability to convey an inheritance to a relative. Any property
that is only a potential future uncertain interest should not be made transferrable.
For example, a servant's future earnings before they are earned, the chance of
winning the lottery, or a prize in a competition cannot be transferred.
In the case of Ananda Mohan vs. Gaur Mohan2, a Hindu agreed to sell an immovable
property to which he was the next reversionary heir expecting following the death of the
property's wife. The Privy Council ruled that such a contract was unlawful because the
Transfer of Property Act prohibits the transfer of an expectation under section 6 (a). He was
only supposed to inherit the property once the widow died, and that was a spes successionis
that was null and void from the start.

1
Sheshammal v Hasan Khani Rawther A.I.R. 2011 S.C. 3609
2
Ananda Mohan v. Gaur Mohan 50 Cal 929.
 2. Right of Re-entry [Sec6 (b)] –
A right of re-entry for a later breach of a condition can only be transferred to the owner of the
property involved, e.g. A leases B a parcel of property for three years on the condition that B
not construct a tank on the land unless B digs the tank himself. For B's violation of the
condition, A transfers the right of re-entry to C. The transaction is not legitimate.

In the case of Jenkins V Jones3, it was said that such a privilege is known as the 'bare
possibility of the reverter' in English law. It indicates that the estate owner can only transfer
his right to re-enter once the present contract has expired, and no such right can be transferred
after a second breach of the given contract. The right of passage refers to the right to an
easement.

In the instance of Re Davis and Company4, A acquired items from B under a hire purchase
arrangement. This agreement had a condition that said that following the purchase, A would
take ownership of the property and pay the instalments on time; but, if A failed to make the
instalments, B would enter A's premise and seize the property. The crucial issue to remember
here is that B's right to re-enter is a personal right that cannot be transferred by him, and in
any event, if he transfers it to his creditors or anybody else, it will be nullified.

3. Easement [Sec6 (c)] –

An easement is a right to use or restrict the use of someone else's land in some way, such as a
right of way, a right of light, or a right of water. An easement cannot be transferred unless the
property that benefits from it is also transferred. It implies that if someone wishes to transfer
an easement, they may only do so along the property line. For example, X, the owner of a
home, has a right of way over Y's neighbouring land. X, please transmit this to Z. Because
this is just a transfer of an easement, the transfer is void. If X, on the other hand, transfers the
home to Z, the right of way will pass to Z without any further action on X's side.

The right to easement is not a personal right, but rather one that is linked to dominating
heritage. It is not possible to detach and transfer it. The right to dry clothes on flat masonry
and shop roofs was declared to be a right of easement in the case of Ganesh Prakash v.
Khandu Baksh.5

3
Jenkins V Jones (1882) 9 Q.B.D 128 135
4
Re Davis and Company, 22 QBD 194.
5
Ganesh Prakash v. Khandu Baskh, AIR 1918 Oudh 296
 4. Restricted interest [Sec6 (d)] –
A person who has a legal right to a property can transfer it either with or without restrictions.
When property is transferred with a limitation attached, the transferee is expected to follow
the restriction. Thus, if property is transferred to the transferee with the limitation that it be
enjoyed by him personally, he has no right to transfer it, and if he does so in violation of the
restriction, the transfer will be unlawful under this provision. Because his office is founded
on personal confidence, a trustee cannot alienate his office under this article.

It was established in the case of B. Rajegowda v. H.R. Shankere Gowda 6 that a person's right
vests purely for his pleasure and that no such right may be transferred. Even if the transfer is
performed by way of a gift deed, a reservation for the use of any such restricted interest might
be established. The entitlement to future maintenance is likewise not transferable; however,
the arrears are.

5. Maintenance [Sec6 (dd)] –

A right to future maintenance cannot be transferred, regardless of how it is obtained or
decided. A right to receive maintenance is a personal right, albeit it can be levied to any
particular property or its revenue. The maintenance right is a personal right that cannot be
transferred. However, this entitlement can be transferred in the event of any maintenance
arrears, but not for future maintenance.

The right to maintenance is only a personal right that cannot be transferred or attached in the
course of the decree's performance. A personal contract or a court order can be used to get
maintenance. An entitlement to future maintenance is not transferable, according to Ranee
Annapurna v. Swaminath.7

The Madras High Court declared in Thimmanayanim vs. Venkatappa8 that the right to future
maintenance is transferable if it is gained by a decree. The Calcutta High Court, on the other
hand, disagreed in the case of Asad Ali vs. Haidar Ali9. The Transfer of Property
(Amendment) Act of 1929 appended clause dd to section 6 to settle this problem, stating that
the transfer of the right to receive maintenance is a personal right that cannot be recognised.
6
B. Rajegowda V. H.R. Shankere Gowda A.I.R. 2006 Kant 48.
7
Ranee Annapurna v. Swaminath (1910) 20 MLJ 785
8
Thimmanayanim vs. Venkatappa (1978) Mad. 713 (F.B)
9
Asad Ali vs. Haidar Ali 38 Cal. 13.
 6. Mere right to sue [Sec6 (e)] –
It is impossible to transfer a mere right to sue. Suing someone involves filing a legal claim or
initiating legal action against them. Damages claims for breach of contract or tort, as well as
the right to sue an agent for accounts, are all bare rights to sue that cannot be transferred.
However, if the right to sue has been combined into a decree, the right to sue might be
transferred.

The Supreme Court of India decided in Union of India v. Sri Sarada Mills10 that a bare right
of action for breach of contract or tort claims cannot be transferred since the law does not
recognise the transaction that may be the basis of maintaining champerty.

A sale of property was made together with the right to litigate and recover mesne profits in
the case of Shankarappa vs. Khatumbi11. The Bombay High Court determined that in this
instance, not only was the right to suit transferred, but also the property, and that such a
transfer was legitimate.

7. Public Office [Sec6 (f)] –

A public position or a public officer's salary, whether paid before or after it becomes payable,
cannot be transferred. The restriction on the transfer of public office and the transfer of a
public officer's remuneration is enforced on public policy grounds. A person is chosen for a
public position because of personal attributes, and if he is permitted to transfer it, the public
obligations may not be properly fulfilled, and the pay is given to him for the purpose of
sustaining its dignity and proper execution of its duties, therefore it cannot be transferred.

Where the law assigns fees to any office, it is for the purpose of protecting the dignity and
fulfilling correctly the responsibilities of that office, and the policy of law will not allow the
officer to bargain away such fees to the appointer or anyone else, as stated in Corporation of
Liverpool v Wright.12

8. Pensions [Sec6 (g)] –

10
Union of India v. Sri Sarada Mills 1973 AIR 281
11
Shankarappa vs. Khatumbi 56 Bom 403.

12
Corporation of Liverpool v. Wright (1859) 28 L.J. 868
Stipends for military and civil pensioners, as well as political pensions, are not transferable
under this condition. Pension refers to a stipend given not in exchange for any privilege of
office, but in recognition of past meritorious service.

Pensions are non-transferable, according to Saundariya Bai v. Union of India 13, as long as
they are payable and in the hands of the government.

9. Nature of Interest [Sec6 (h)] –

This clause deals with three classes of cases:

i. Opposed to the nature of business – There are certain things that aren't
transportable by their sheer nature. It includes res communes, or things owned by
no one in particular (also known as res nullius, or things without an owner), such
as air, river water, and so on. These things aren't transportable by their very
nature. Similarly, res extra commericum (i.e., goods that cannot be traded) cannot
be transferred, such as property consecrated to an idol.
ii. Unlawful object or consideration – When the transfer's object or consideration is
illegal, a property that is otherwise transferable becomes non-transferable. As a
result, a residence supplied for rent for the purpose of gambling or prostitution is
illegal or contrary to public policy.
iii. A person legally disqualified to be a transferee – A transfer cannot be done in
favour of someone who is ineligible to receive the transfer. A judge, a legal
practitioner, or an officer linked with the courts of justice are prohibited from
acquiring any actionable claims under Section 36 of the Transfer of Property Act.

10. Untransferable Interest [Sec6 (i)] –

The normal rule is that leasehold interests are transferable, but this section creates an
exception and specifies that some interests are not transferable. A tenant with an
untransferable right of occupancy, a farmer who has defaulted in paying revenue, or a lessee
who has defaulted in paying revenue cannot assign or transfer their stake in the holding.

CONCLUSION

13
Saundariya Bai v. Union of India, AIR 2008 MP 227
It may be deduced from the above-mentioned sections, examples, and case law that section 6
of the Transfer of Property Act, 1882 has certain obvious exceptions to what can be
transferred. The bulk of the exceptions, on the other hand, are based on the public interest and
principles of justice, equality, and good conscience, since allowing persons to transfer their
right to sue, their public position, or their pensions would be against the public interest. As a
result, the exceptions have been developed to facilitate the idea of equity, which has long
been an essential concept in the transfer of property.

The Act was created with the goal of simplifying and rationalising the transferability of
property. The term "rationalise" alludes to the Act's technical character. It spells out the do's
and don'ts of following the law. The issue of beneficial interest has been addressed as well.
There is a distinction to be made between a person's right coming from property and a simple
right to property. This has been codified and made possible under Section 6 of the Act. In
essence, Section 6 deals with Smith's point of view. Rather of allowing for the accumulation
of private property, it allows for the alienation of it. It works to promote the free movement
of private property by defining what may and cannot be transferred. As a result, the notion of
full-fledged property rights is introduced. It is vital for a person to deconstruct this section in
order to comprehend the ramifications of what may or may not be conveyed. As a result of
Section 6, the ambiguities of property law can be justified.