Lessons From The Law
Author is Senior lecturer at KCEF Law College Pulwama
Section 5 of the Transfer of Property Act, 1882 defines the term transfer of property. According to this section, 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 and other living persons. The phrase “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing in this section shall affect any law for the time being in force relating to or by companies, associations or bodies of individuals. The word property in the Act has been used in one of the following senses:
(i) Tangible material things like house.
(ii) Rights which are exercised over material things like the right to sell or make a gift of things.
(iii) Rights which are not exercised over any material such as the right to repayment of a debt.
The expression transfer of property implies various meanings. One sense maybe transfers of things such as the sale of a house. Another sense maybe transfer of one or more of the rights in a thing such as mortgage of a house or transfer of a debt.
Thus, if a new title has not been created or some interest has not been transferred in favour of the Transferee, then the transfer of property cannot take effect. An analysis of section 5 helps us understand the meaning of the phrase, “transfer of property”. Thus, transfer of property means an act which may take effect in the present or future. The property in question must be in existence at the time the transfer takes place. Moreover, the conveyance of the property must be from one living person to another.
Section 6 of the Transfer of Property Act, 1882 discusses the property which may be transferred. The section states that property of any kind may be transferred. However, Clauses (a) to (i) of section 6 mention the properties which cannot be transferred.
Clause (a) describes spes succession is cannot be transferred. This clause states that the transfer of a bare chance of a person to get a property is prohibited under this section. For example, Arun expecting that Chandini, his aunt, who had no issues, would bequeath her house worth Rs. 50,000 transfers it to Bhushan. The transfer is invalid as it is a mere matter of chance of receiving the property on the part of Arun. Thus, it is invalid.
Clause (b) mentions that the right of re-entry cannot be transferred. The right to re-entry implies a right to resume possession of the land which has been given to someone else for certain time. The section mentions that the right of re-entry cannot be transferred by itself apart from the land. For example, A grants a lease of a plot of land to B with the condition that if shall build upon it, he would re-enter transfers to C his right of re-entering in case of breach of the covenant not to build. The transfer is invalid.
Clause (c) mentions that easement cannot be transferred. An easement is a right to use or restrict the use of land of another in some way. For example, the right of way or right of light cannot be transferred.
Clause (d) mentions that an interest restricted in its enjoyment of himself cannot be transferred. For instance, if a house is lent to a man for his personal use, he cannot transfer his right of enjoyment to another.
Clause (dd) restricts the transfer of the right to maintenance. Such a right cannot be transferred as such right is for the personal benefit of the concerned person.
Clause (e) provides that mere right to sue cannot be transferred. The prohibition has been imposed as the right to sue is a right which is personal and exclusive to the aggrieved party. For example, a person cannot transfer his right to sue for the damages suffered by him due to breach of contract by the other party.
Clause (f) forbids the transfer of public offices. The philosophy behind the prohibition is that such a transfer may be opposed to public policy in general. A person is eligible to hold a public office on the grounds of his personal qualities, and such qualities cannot be transferred. Thus, the transfer of public offices is prohibited under this section.
Clause (g) of section 6 provides that pensions cannot be transferred. Pensions allowed to military and civil pensioners of government and political pensions cannot be transferred. In simpler terms, a pension may be understood as any periodical allowance which may be granted in regard to any right of office but only on account of the past services offered by the pensioner.
Clause (h) of this section is titled as nature of nature. This clause prohibits transfer which will oppose the interest affected thereby. The transfer is also forbidden if the object or consideration of the transfer is unlawful. Moreover, a transfer by a person who is legally disqualified from being a transferee is also forbidden.
Clause (i) of section 6 was inserted by the Amendment Act of 1885. The clause declares that certain interests are un-transferable and inalienable. For example, a farmer of an estate, in respect of which default has been made in paying the revenue, cannot assign his interest in the holding.
Thus, section 6 containing clauses (a) to (i) specifically mention that certain things cannot be transferred. Such a transfer if undertaken would be invalid in the eyes of the law in India.
