TRANSFERABLE AND NON TRANSFERABLE PROPERTY
The transferability of property is the general rule and non-transferability is an exception
It is generally based on the maxim alienation rei prae fertur jurisdiction accrescendi which states that law leans in favour of transferability not accumulation.
TRANSFERABLE PROPERTY
According to Section 6 of the Transfer of Property Act 1882 the property of any kind may be transferred accepting the exceptions stated in this particular section. Exceptions are laid down in section 6 in clause (a) to (i) and it contains list of cases wherein property in not transferrable.
CONDITIONS TO EXAMINE A VALID TRANSFER OF PROPERTY
1. Property must be Transferable
2. Object of the transfer must be lawful
3. The transferee must not be legally disqualified to take the transfer
4. The transfer must not be opposed to the nature of the interest affected thereby
5. The transferor must be competent to transfer
6. It must be made in the prescribed manner or form
NON TRANSFERABLE PROPERTY
law make the transfer of all properties whether movable or immovable valid except certain properties. There are exception laid down in section 6 which contains list of cases where wherein a property is not Transferable.
These exceptions are as follows
1) Clause(a) : spes successionis
This is the first exception which means expectation of succession. It means that there is a chance of getting property in future through succession but this law states that spes
successionis is not transferable.
Spes successionis includes:-
(i) chance of an heir apparent succeeding to an estate,
》Heir apparent is not a legal heir but apparently a heir. When a deceased person whose property the heir apparent is going to inherit dies without making any will then the heir will inherit the property. The term heir apparent has been taken from the maxim memo es heres viventis which states that no one is the hier of a living person. The possibility of an apparent hier to inherit the property of the propositus is only an expectation which may be unsuccessful by the activity of some person having the power to dispose of the property.
In stockley v. Parsons it was stated that no one can have any share in the property of a living person during his / her lifetime where as such person has got only hope of succeed in the property.
(ii) chance of relation of training a Legacy on the death of a kinsman
》 chance of legacy has been made non transferable Legacy means having some hope of getting certain property under a will. Will comes into action only after the death of the testator . If a person has made two or more will then only the last one will made be applicable. Legatee under the final will only will get the legacy.
(iii) any other mere possibility of a like nature.
》 if there is any other possible interest which is nearly a future uncertain then such interest
should not be made Transferable.
2) Clause(b) : right to re-entry
Basically this clause states that a right of re entry for breach of a condition subsequent in the contract cannot be Transferable anyone rather than the owner of the property
Example – A transfers his right of re entry upon the breach of the condition by B to C and ask him to take position of the land from B. Here C cannot take position from B because A has transferred him the mere right of re-entry which is not Transferable.
3) Clause(c) : easement
It is right of the owner of a certain land for the beneficial enjoyment of a land and exercise upon the land of another person. This clause means that an easement cannot be transferred apart from the dominant heritage. The lands for whose beneficial enjoyment the right is exercised is called dominant heritage.
4) Clause(d) : Restricted interest
The fourth exception state that if the owner of the property e gives restricted interest to another person for is beneficial enjoyment then that interest cannot be transferred
Example – if A gives his land to B for B’s personal use then B cannot extend that use to any third party
Following type of interest are not Transferable:
● Tenure of service
● Religuous office
● Pre-emption right
● Emoluments that are attached to the priesly office.
5) Clause(dd) : Right to future maintenance
The fifth exception state that right to future maintenance in whatsoever manner cannot be transferred because right to future maintenance is for the personal benefit of the person to whom it is granted.
6) Clause(e) : Right to sue
This clause contains the sixth exception which states that mere right to sue cannot be transferred. Right to sue for indefinite sum of money is not Transferable.
For example – X publishes article about Y . Y has a right to sue X legally because X has published defamatory statements against him but Y transfers his right to Z. Z cannot sue X to recover damages because Y had assigned him only the mere right to sue.
In the case of durga chunder v. Kailas chunder calcutta high court held that when the property comes back in the posession of a person who is legally entitled to its posession he can claim mens profit from the adverse possessee. Such claims are for an liquidated damages and therefore cannot be transferred.
7) Clause(f) : Public office
The seventh exception states that neither the public office not the salary of a public office is non Transferable to make sure that the dignity of the office held by the public officer and the proper performance of his duties
In liverpool v. Wright it was observed that with the law assigns fees to any office at is for the purpose of holding the dignity and performing properly the duties of that officer and the policy of law will not allow the officer to bargain away those fees to any third party.
8) Clause(g) : Stipends and pensions
In the case of sundariya bai choudhary v. UOI air 2008 it was held that the stipends allowed to military , Naval, air force and civil pensioners of the Government and political pensions cannot be transferred. Moreover Court stated that a will can be executed only in respect of an estate. An estate includes benefits like provident fund, gratuity, and other retrial dues and extra- remuneration.
9) Clause(h) : Nature of interest , Unlawful object , disqualification of transferee
This clause deals with three scenarios under which no transfer can be made
(i) Transfer opposed to nature of interest– if the nature of the property is opposed by its interest then it is not Transferable. For example like air , water , space, Sea light and etc. these things are not owned by anyone that is why no one can possess it and thus it is not Transferable.
(ii) Transfer of an unlawful object – anything unlawful under Section 23 of the Indian Contract Act ,1872 is not Transferable.
● Forbidden by law
● Defeat provisions Of any law
● Fraudulent
● Injury to person or property
● Immoral and opposed to public policy
In the case of wazir mohd. V. Har prasad (1912) it was held that person selling liquor without licence is unlawful. Therefore in this case they can be no transfer of partnership.
(iii) when person is legally disqualified to be a transferee.
10) Clause(i) : Untransferable interest
This clause makes it clear that a tenant cannot have an untransferable right of Occupancy. But at the same time exception to this Clause is Section 108(j) which states that all tenancies only leasehold are Transferable. Similarly farmers of an state who has been paying revenue cannot transfer his interest as they are lessee of an estate under the management of court of wards
Author: sarthak udaipuria,
ICFAI LAW SCHOOL HYDERABAD, 3RD YEAR