Lessons from the Law
The Transfer of Property Act, 1882 contains thespecific provisions regarding what constitutes a transfer and the conditions attached to it. The Transfer of Property Act, 1882 is defined as an act by which a living person conveys property in present or future to one or more other living persons or himself and one or more other living persons, and to transfer the property is to perform such act. The living person includes a company whether incorporated or not or an association or body of individuals.
Section 6 of the Transfer of Property Act, 1882 deals with what may be transferred. It lays down the exception to the general rule. Before moving forward, it is important to know what the word “property” means. The word property has not been defined in the Act but has been given a wide scope meaning and includes all descriptions of properties. The word property also covers both tangible materials such as buildings, lands, etc. and intangible materials such as copyrights, tenancy, etc. In this article, the properties immovable in nature and are not transferable under the act will be discussed in detail.
Section 6 of the Transfer of Property Act, 1882 lays down the exceptions to the general rule. Property and interest in property forms as a general rule which is transferable. The transferability of the property is based on the maxim ‘alienation rei praeferturjuriaccrescendi’, which means law favours alienation to accumulation. Hence, it is stated that any actions that are made to interfere with the power of the owner to alienate his interest in the property are not considered in favour of the law.
The main aim of this article is to provide the immovable properties which are not transferable and also to differentiate between properties to have a clear understanding of the concept. Section 6 of the Act states about the properties which are immovable and notproperties which are immovable and not transferable also. The detailed analysis of the exceptions are summarised below:
Section 6(a): Spes Succession
This section states that:
- The chance of heir-apparent succeeding to an estate cannot be transferred.
- The chance of a relation obtaining a legacyon the death of kinsman cannot be transferred. Any mere possibility of a like nature cannotbe transferred.
A is the owner of a property, if he dies his son B will get the property as he is the legal heir and here it can be said that B is the heir-apparent. But this same property cannot be transferred to B during the lifetime of A.
Section 6(b): Right of re-entry
This clause states that the right to resume the possession of the land which could be given to some other person for a certain period. For example, lease cases. As per this, if there is a mere right of re-right for breach of a condition, it later cannot be transferred to anyone except the owner of the property who is thereby affected.
A grants a lease of land to B for 3 years. At the expiry of 3 years, if he transfers the right of re right to C then this transfer shall be invalid.
Section 6(c): Easement
An easement means a right that the owner or the occupier of certain land has in his possession for the beneficial enjoyment of the said land. It can be said that the right to use or restrict the use of the property of some other person. An easement cannot be transferred except the dominant heritage.
Section 6(d): Restricted interest
A person cannot transfer anything that is interest restricted in the enjoyment to him. Restricted rights are personal and cannot be transferred and if such transfer happens then it would be void. The following types of interest are not considered transferable, suchare:
- Service tenure;
- A right of pre-emption;
- Religious office.
The right of the priest to receive the offering. This right is his restricted interest and he cannot transfer this to another person who may be a doctor by profession.
Section 6(dd): Right to future maintenance
This clause states that the right to future maintenance whatsoever cannot be transferred in any manner. This is because the right is solely a personal benefit given to a person and so he cannot transfer his benefit to someone else.
A woman who receives maintenance from her husband under a decree or award or order.
Section 6(e): Right to sue
According to this clause, a mere right to sue cannot be transferred. A right to sue cannot be transferred as the transferee acquires no interest in the subject matter of the suit as much as the owner of the property would.
X published defamatory statements against Y and Y filed a suit against X. But Y cannot transfer his right to Z to recover damages for him. If Y transfers his right to Z then this transfer will be held void.
Section 6(f): Public Office
A public office cannot be transferred and so the salary of the public officer, whether before or after it becomes payable. A public officer is a person who is appointed to discharge his duty towards the public and for doing such an Act he is paid in the form of salary. This salary is a personal benefit to him that cannot be transferred.