NON-TRANSFERABILITY OF PROPERTY: A STUDY

5.6 Property Law

Submitted By

Krishna Kant Jain

UID No. SM0115022

Fifth Semester, Third Year

NATIONAL LAW UNIVERSITY, ASSAM

 Table of Contents
Table of Cases.................................................................................................................................ii
Table of Statutes..............................................................................................................................ii
Table of Abbreviations...................................................................................................................iii
Introduction......................................................................................................................................1
Aim..................................................................................................................................................2
Objectives........................................................................................................................................2
Scope and Limitations.....................................................................................................................2
Literature Review............................................................................................................................2
Research Problem............................................................................................................................3
Research Methodology....................................................................................................................3
Concept of Property......................................................................................................................4
What Property Cannot be Transferred.......................................................................................5
Spes Successionis.........................................................................................................................5
Mere right to Re-entry..................................................................................................................7
Easements.....................................................................................................................................8
Restricted Interests.......................................................................................................................9
Future Maintenance......................................................................................................................9
Transfer of Mere Right to Sue...................................................................................................10
Transfer of Public Office...........................................................................................................10
Stipends and Political Pensions..................................................................................................11
Nature of Interest, Unlawful Consideration and Disqualified Transferee.................................12
Untransferable right of occupancy.............................................................................................13
Conclusion....................................................................................................................................14
BIBIOLGRAPHY............................................................................................................................v

i
Table of Cases
Ananthayya v. Subba Rao

Asad Ali v. Haidar Ali

Ashraf v. Jayanath

Bhoyrub v. Madhab Chunder

Chundee Churn v. Shib Chunder

Dhup Nath v. Ram Charitra

Dodda Subbareddi vs. Sunturu Govindareddi

Kolaparti Venkatareddi v. Kolaparti Peda Venkatachalam

Mohidin v. Shivlingappa,

Mt. Khannum Jan vs. Mt. Jan Bibi

Ramdas v. Damodhar

Ranee Annappurni v. Swaminatha

Samir Kumar v. Nirmal Chandra

Samsuddin v. Abdul Husein

Shah Mohammed v. Kashi

Shehammal vs. Hasan Khani Rawther

Subraya Mudali v. Velayuda Chetty

The Secy. of State for India in Council v. Khemchand Jeychand

Zobair Ahmed v. Jainandan,

Table of Statutes
1882- Transfer of Property Act
1871- Pensions Act

ii
Table of Abbreviations

AIR All India Reporter

All Allahabad
AP Andhra Pradesh
Bom Bombay
Cal Calcutta
Ed. Edition
Eng England
ILR Indian Law Reports
LJ Law Journal
Mad Madras
Pat Patna
pg. page
SCC Supreme Court Cases
Sec. Section
v. versus
WR Weekly Reporter

iii
 ABSTRACT

The term non-transferability of property basically means property which cannot be transferred,
which is majorly dealt under the Transfer of Property Act, 1882 and specifically section 6 of
the act. The transfer of property act is a civil legislation of immense importance owing to the
vast number of property related transaction taking place throughout the country. The Section 6
of the act explains the nature of the property liable to be transferred under the said provision.
In general, "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. There is however, a series of exceptions to this,
as enumerated under sub-sections (a) to (i), explained hereafter. These exceptions provides for
the property which cannot be transferred. But for understanding the concept of property has be
understood.

iv
INTRODUCTION
The intricacies of a transfer of property is set down under the Transfer of Property Act, 1882 that
has provisions for addressing property through sale, exchange, mortgage, lease, lien and gift.
Someone who has acquired immovable property or any share / interest in it, is presumed to
possess notice of the title of any other person who was in actual possession of such property.

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 in whole or
partly and either completely or not absolutely within the manner prescribed by any law for the
nonce operative. A transfer of property passes, straightaway to the transferee, all the interest that
the transferor is then capable of passing in the property. A transfer of property could also be
created without writing.

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 one or more other living persons and
‘to transfer property’ is to perform such an act. According to Sec. 5 of the Act, living persons
include a company or association or body of individuals whether incorporated or not. The Act
deals with the transfer of any immovable property, but is subject to some exceptions which are
laid down in the Sec. 61 of the Act.

1
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 anyone 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 the 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;

1
According to the Section, property of any kind may be transferred. The person insisting on non-
transferability must prove the existence of some law or custom which restricts the right of
transfer either provided by this Act or by any other law which is in force at the time. Unless there
is some legal restriction preventing the transfer, the owner of the property may transfer it.

Aim
The aim of this project is to understand the concept of non-transferability of property with the
help of illustration and settled judicial precedents.

Objectives
The objectives of the research paper are:
a) to study, with the help of illustrations and case references, which property are non-
transferable, as under the Transfer of Property Act, 1882.
b) to analyse the reasons behind the reasons behind the importance bestowed on certain types
of property in relation to their non-transferable nature.

Scope and Limitations

The scope and ambit of the project was too wide that it was practically impossible for the
researcher to comprehend all the aspects of the knowledge into this paper due to the lack of time
and resources. Hence, the researcher has limited the study to the thorough study of the concept of
property and its non-transferability under the Transfer of Property Act, 1882.

Literature Review
Mulla, Sir Dinshaw Fardunji, The Transfer of Property Act, Eleventh Ed., LexisNexis,
Gurgaon, 2013

The book is considered as authoritative and is often cited by lawyers in their pleadings. This
book has helped the researcher with the deep analysis of the sections relevant to the research

(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.

2
topic. It also provides ample number of case laws accompanied by the definition and explanation
to each legal concept relating to the Act.

Sinha, R.K., The Transfer of Property Act, Fifteenth Ed., Central Law Agency, Allahabad,
2014
This book provides a brief analysis of the Transfer of Property Act, 1882 highlighting the basic
concepts of transfer of property, like, how and which properties can be transferred and which
cannot be transferred, rights, interests and duties which are drawn out of a property, etc. The
book deals with the Act in brief along with landmark judgements.

Manohar, Chaitaley, The Transfer of Property Act, Volume-1, Seventh Ed., All India
Reporter, Nagpur, 2010

The book emphasises on case references and judicial interpretations to explain the concepts of
the laws relating to the transfer of property. It provided the researcher with ample case laws
relating to the research topic regarding the non-transferability of property. The book not only
focuses on Indian cases, but also substantiates the concepts with foreign landmark judicial
interpretations.

Research Problem
The Transfer of Property Act, 1882 deals with the transfer of immovable properties. The Act
provides for every immovable property to be transferable, though there are certain exceptions to
the same. Hence, the research problem is to analyse, in the light of relevant provisions under the
Act, whereby transfer of certain properties are subject to restrictions or are non-transferable by
their very nature.

Research Methodology
Researcher conducted Doctrinal type of research to collect proper data and gather appropriate
information. The use of library sources and internet sources has greatly supplemented the
research. Various books pertaining to the subject have been immensely helpful in guiding the
research.

To ensure a quality study of the subject matter, the researcher collected Primary as well as
Secondary type of data. Though primary data is very valuable and precious; still the importance

3
of the secondary data cannot be overlooked. So, the researcher collected primary data (cases)
from various online research journals like SCC online and Manupatra and secondary data
through various books, articles, journals and other sources.

For the purpose of the citation in project OSCOLA mode of citation has been used as the
uniform mode of citation in the entire research project.

Concept of Property
Property has a very wider meaning in its real sense. It not only includes money and other
tangible things of value, but also includes any intangible right considered as a source or element
of income or wealth. It includes the rights and interests which a man has in lands and chattels to
the exclusion of others. It is the right to enjoy and to dispose of certain things in the most
absolute manner as he pleases, provided he makes no use of them prohibited by law.

The sea, the air, and the like, cannot be appropriated; every one may enjoy them, but no one has
any exclusive right in them. When things are fully our own, or when all others are excluded from
meddling with them, or from interfering about them, it is plain that no person besides the
proprietor, who has this exclusive right, can have any claim either to use them, or to hinder him
from disposing of them as he pleases; so that property, considered as an exclusive right to things,
contains not only a right to use those things, but a right to dispose of them, either by exchanging
them for other things, or by giving them away to any other person, without any consideration, or
even throwing them away.

Though, property can be classified based on various grounds, the classification upon which the
Transfer of Property Act, 1882 is based is the mobility of properties. Property, thus, can be
divided as movable and immovable properties. The Transfer of Property Act, basically, deals
with the properties which are immovable by their very nature. Immovable property does not
include standing timber, growing crops or grass.2 Thus, the term is defined in the Act by
excluding certain things. "Buildings" constitute immovable property and machinery, if embedded
in the building for the beneficial use thereof, must be deemed to be a part of the building and the
land on which the building is situated.

2
Sec. 3 of the Transfer of Property Act, 1882.

4
The Act, with the main object to regulate the transmission of property between living persons,
provides for the conditions under which an immovable property can be transferred. It holds every
property to be transferable, save some, which are not transferable by their nature; and some
circumstances, wherein treansferable properties shall be deemed to be non-transferable. It has
been incorporated under Sec. 6 of the Act.

What Property Cannot be Transferred

Spes Successionis

Clause (a) of Sec. 6 of the Transfer of Property Act excludes mere chance of an heir apparent of
succeeding to an estate from the category of transferable property. During the lifetime of a
person, the chance of his heir apparent succeeding to the estate or the chance of a relation
obtaining a legacy under his will is a Spes Successionis. Such expectancy does not amount to an
interest in property and cannot be made the subject matter of a transfer. In simple terms it means
a chance of succession. A suit cannot be brought only on the ground of a chance of succession.
The possibilities referred to in this clause are bare possibilities, and not possibilities coupled with
an interest such as contingent remainders and future interest. 3 The concept behind the same is
that the property which does not have any rights associated to it in present cannot be sold. Once
the title is acquired, it can very well be sold or claimed.

Transfer by Heir-apparent
An heir-apparent is a person who would be the heir if he survived the propositus and if the
propositus died intestate. Such a possibility a mere possibility of an heir succeeding to an estate
is excluded from the category of transferable property. The prohibition enacted in this clause is
based on public policy, namely, that if these transfers were allowed speculators would purchase
the chance of succession from possible heirs and there would be increase in speculative
litigations.

Illustration: A has a wife B and a daughter C. C in consideration of Rs. 1,000 paid to her by A,
executes a release of her right to share in the inheritance to A's property. A dies and C claims her
one-third share in the inheritance. B resists the claim and sets up the release signed by C. The

3
Mulla, Dinshaw Fardunji, The Transfer of Property Act, 11th Ed., LexisNexis, Gurgaon, 2013, pg. 67.

5
release is no defence, for it is a transfer of a spes successionis, and C is entitled to her one-third
share but is bound to bring into account the Rs. 1,000 received from her father.4

The transfer by a brother, of the property belonging to a person, who has not been heard of more
than seven years or more not be void, as the brother would not not merely be an heir apparent but
a legal heir to him.5

The chance of a Mohammedan heir apparent succeeding to an estate cannot be the subject of a
valid transfer on lease and held that renunciation of an expectation of a future share in a property
in a case where the concerned party himself chose to depart from the earlier views was not only
possible, but legally valid. The Court observed that “renunciation implies the yielding up of a
right already vested”. It was observed in the facts of that case that during the lifetime of the
mother, the daughters had no right of inheritance.6

Further, renunciation implies the yielding up of a right already vested. 7 Accordingly,

renunciation during the mother’s lifetime of the daughters’ shares would be null and void on the
ground that an inchoate right is not capable of being transferred as such right was yet to
crystallize. Under the Muslim Law an expectant heir may, nevertheless, be part of a course of
conduct which may create an estoppel against claiming the right at a time when the right of
inheritance has accrued. The Contract Act and the Evidence Act would not strictly apply since
they did not involve questions arising out of Mohammedan Law. The general law, thus, lays
down that all property is transferable under the section unless there is some legal restriction to
the contrary.

Sec. 6 makes property of any kind alienable subject to the exception set out which cannot be
supposed to be selected by reason of the future character of the chances. The truth is that an
attempted conveyance of nonexistent property may, when made for consideration, be valid as a
contract and when the object comes into existence equity fasten upon the property and the
contract to assign becomes a complete assignment. It is well settled that a transfer of property

4
Samsuddin v. Abdul Husein, (1906) ILR 31 Bom 165.
5
Samir Kumar v. Nirmal Chandra, (1975) 79 C.W.N. 934.
6
Shehammal vs. Hasan Khani Rawther, (2011) 9 SCC 223.
7
Mt. Khannum Jan vs. Mt. Jan Bibi, (1827) 4 SDA 210.

6
clearly contemplates that the transferor has an interest in the property, which is sought to be
conveyed.8

Chance of Legacy
The chance of obtaining a legacy is also a mere possibility. It cannot, under the provisions of
clause (a), be transferred. This is so even of the testator has agreed with the legatee that he would
give him a legacy. The chance of a relation or a friend receiving a legacy is a possibility even
more remote than the chance of succession of an heir, and thus, is not transferable.9

Mere right to Re-entry

A mere right to re-entry in not assignable so as to authorise an action by the assignee in his own
name.10 A mere right to re-entry refers to the right of re-entry which a transferor reserves to
himself, after having parted with the whole estate, for a breach of a condition subsequent. 11
Under the English Law, on the transfer by the lessor of leasehold property, a condition of re-
entry to which the lease it subject passes with the property and the transferee can enforce such
condition. This is the right referred to in Sec. 111 (g) 12, which the lessor has against the lesse for
breach of an express condition, which provides that on its breach the lessor may re-enter.

A right of re-entry implies an estate of reversion, and cannot be transferred apart from the estate
to which it belongs. The transfer of the reversion, i.e., of the lessor’s interest, carries with it the
right to re-entry. In other words, the right of re-entry being an estate of reversionor, is the
lessor’s interest in the land leased to the lessee. The transfer of a lessor’s interest including a
right of re-entry is not a transfer of a mere right of re-entry, and is valid.

Illustration: A lets out his house to B for a period of five years subject to a condition that B shall
not sub-let it to any other person. B sublets the house in violation of the express prohibition. A

8
Dodda Subbareddi vs. Sunturu Govindareddi, AIR 1955 AP 49.
9
See Mulla, supra note 3, pg. 73.
10
McCurdy, Charles W, The Anti-Rent Era in New York Law and Politics, 1839-1865, The University of North
Carolina Press, 2001, pg. 326.
11
See Mulla, supra note 3, pg. 75.
12
by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach
thereof, the lessor may re-enter ; or (2) in case the lessee renounces his character as such by setting up a title in a
third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that
the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives
notice in writing to the lessee of his intention to determine the lease

7
has a right to terminate the tenancy, i.e., has the right to re-entry. But during tenancy, i.e., within
the term of five years, A sell the house to C. C would have the right to terminate the tenancy of
B, as A has transferred to C not only the right of re-entry but also other interests, namely,
ownership of the house.

Easements
An easement is a right which the owner or the occupier of a certain land possesses, as such for
the beneficial enjoyment of the land, to utilise certain land belonging to another in a particular
manner not involving the taking of the natural produce of that land or of any part of its soil or a
right to prevent the owner of the land from utilising his land in a particular manner. 13 In other
words, it refers to the right which A has, by virtue of his being the owner of property X, over the
property Y belonging to another, but irrespective of the ownership or occupation by that
individual of any other dominant heritage. Thus it is a right attached with the dominant heritage
and runs with it. It includes a profit a pendre, i.e., a right to be enjoyed out of the land of
another.14 From its very nature, it can only be transferred along with the dominant heritage, and
not apart from it. 15

Illustration: A, who is owner of a house, has a right of way upon the land owned by B, so that he
may reach the highway. A’s house is a dominant heritage and the land of B is servient heritage.
A’s right of way is easementary right. Although this right is exercised by A but it exists for the
beneficial enjoyment of A’s house, therefore, this is not a right of A. In other word, it is not his
personal right, but a right attached to the house, hence, it cannot be severed or detached from it.

Easements cannot exist without the dominant heritage. In India, various rights exist, which
resemble easements, but are not the same. Customary rights like a right to use the land of another
13
Manohar, Chaitaley, The Transfer of Property Act, Volume-1, 7th Ed., All India Reporter, Nagpur, 2010, pg. 305.
14
Chundee Churn v. Shib Chunder, ILR 5 Cal 945.
15
Section 8 of Transfer of Property Act, 1882: “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, where 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 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.”

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for a holi procession,16 or for a bathing ghat,17 or for a burial ground,18 or for the celebration of
ram-leela,19 etc. does not constitute easements, as these rights are independent of any dominant
heritage.

Restricted Interests
An interest restricted in enjoyment to the owner personally is by its very nature not transferable,
unless the restriction is held void under Sec. 10 of the Act. A paid or turn of worship, the pujari’s
right to receive offerings, as a co-sharer, are res extra commercium, and cannot be alienated,
though by custom they may be transferable to another Brahmin.

The right of a Mohammedan widow to retain possession of her husband’s property in lieu of her
dower debt is personal to her, and is a restricted interest within the purview of the concerned
clause of Sec. 6 of the Act.20

Illustration: A is a teacher, appointed after considering his personal qualifications, has a right to
teach, which is his beneficial interest, and are purely personal in nature and cannot be
transferred. Any attempt to transfer such rights shall be against the public policy, and shall tend
to defeat the very purpose of creation of such rights into him.

Future Maintenance
The right of maintenance or allowance is a person’s personal right, as it is given or promised to
be given in future, solely for the benefit of his own. This right to future maintenance is a
restricted interested which is non-transferable.21 The clause (dd) was added to the Sec. 6 by the
Amending Act, 1929, as there was confusion whether the right of future maintenance is
transferable22 or not.23

The right of a Hindu widow to maintenance is a personal right and from its nature incapable of
assignment, but arrears of maintenance can be attached and sold like any other debt. The interest
of a Hindu widow in land which has been allotted to her for her maintenance is not property

16
Ashraf v. Jayanath, (1884) ILR 6 All 497.
17
Shah Mohammed v. Kashi, (1885) ILR 7 All 199.
18
Mohidin v. Shivlingappa, (1899) ILR 23 Bom 666.
19
Ramdas v. Damodhar, AIR 1923 Pat 346.
20
Zobair Ahmed v. Jainandan, AIR 1960 Pat 147.
21
Sinha, Dr. R.K., The Transfer of Property Act, 14th Ed., Central Law Agency, Allahabad, 2013, pg. 69.
22
Ranee Annappurni v. Swaminatha, (1901) 3 Mad 7.
23
Asad Ali v. Haidar Ali, (1901) 38 Cal 13.

9
which can be attached.24 However, if the land is assigned to a Hindu widow in lieu of
maintenance, the transfer of such land is not a transfer of a right of maintenance, and is valid
during the widow’s lifetime.25 However, a Mohammedan widow retains possession of property
in lieu of her dower debt she cannot transfer the property even during her lifetime.26

Transfer of Mere Right to Sue

Under the clause (e) of Sec. 6 of Transfer of Property Act, the transfer of ‘mere right to sue’,
which means right to sue for the claim of any uncertain sum of money, is prohibited. Where a
person is entitled to claim for unliquidated damages arising out a tort committed against him, he
has a right to claim damages by way of compensation. This right to claim damages from the
wrong-doer is not a claim for any certain or fixed sum of money and shall come within the
meaning of ‘right to sue’ as given under the clause concerned here. 27 The right to sue for
damages is personal to the party aggrieved. It would be against the basic principles underlying
the award of damages if the compensation is received by a person who is not the aggrieved party.

Illustration: A cannot assign or transfer his ‘right to sue’ to another, B, to claim damages against
C, who has published a libel against A in a newspaper. A’s right to sue is for exclusively for his
own benefit and thus, very personal, and cannot be transferred to the other, who has not been
aggrieved.

Unliquidated damages, in its ambit, also include, mense profits,28 which are declared non-
transferable under clause (e) of Sec. 6 of the Act. When the property comes to the person legally
entitled to it, he can claim mense profits from the one who unlawfully had the possession of the
same.

Transfer of Public Office

A public office is a position which has a public duty attached to it, irrespective of the fact
whether the holder/officer receives any fees or salary or not, or if he gets it from the Government
or otherwise. A public servant holds an office as a result of his personal qualities. The essential
characteristic of such a public office therefore is that it cannot be divided. The prohibition of a
24
See Mulla, supra note 3, pg. 81.
25
Dhup Nath v. Ram Charitra, (1932) ILR 54 All 366.
26
See Mulla, supra note 3, pg. 81.
27
See Sinha, supra note 21, pg. 69.
28
Mense profits are the profits derived out of a property which is in the unlawful possession of a person not entitled
to possess it.

10
transfer of a public office, or its partition or prohibition of a transfer of the salary or the
remuneration of a public office, is based on the grounds of public policy, the policy being that a
person chosen to a public office for qualities personal to himself should not be allowed to
substitute another person in his place.29

Further, an agreement to transfer the salary of a public servant, fully or partially, is void. Lord
Wood V.C. observed that “nobody can deal with the fees of a person who holds an office in this
description, because the law presumes, with reference to an office of trust, that he requires the
payment which the law has assigned to him for the purpose of upholding the dignity and
performing properly the duties of that office; and, therefore, it will not allow him to part with any
portion of those fees either to an appointer or to anybody else...any attempt to assign any portion
of the fees of his office is illegal on the ground of public policy, and held, therefore, to be
void.”30

When one brought up and educated his brother and there was an agreement between the two that
after entering into vocation the brother so brought up would pay a percentage of his income to
the other, such an agreement cannot be said to be void, in case, the brought up brother got
employment in public services.31 The payment was neither in the form of a penalty nor
unconscionable or inequitable.32

Stipends and Political Pensions

Stipends allowed to military, air force, and civil pensioners of Government are not transferable.
It is based upon the same equitable principle, upon which the salary of a public officer is held
non-transferable, i.e., the merit of the officer or public servant, which makes it a personal right.
The transferability of these stipends shall defeat the purpose for what they are given.

Further, the clause declares political pensions as non-transferable. Pension is a periodical

allowance33 on account of past services or particular merits or as compensation to dethroned
princes, their families and dependents34 or periodical allowances made by the Government on
29
Kolaparti Venkatareddi v. Kolaparti Peda Venkatachalam, AIR 1964 AP 465.
30
The Corporation of Liverpool v. Wright, (1859) 28 LJ (NS) Ch 868 (871): 7 WR (Eng) 728.
31
Ananthayya v. Subba Rao, (1960) ILR Mad 87, AIR 1960 Mad 188.
32
Vakil, Darashaw J, Commentaries on the Transfer of Property Act, Volume 1, 4th Ed., LexisNexis, Gurgaon,
2013, pg. 165.
33
Sec. 11 of the Pensions Act, 1871.
34
The Secretary of State for India in Council v. Khemchand Jeychand, (1880) 4 Bom 432.

11
political considerations or on account of past services or present infirmities or as a
compassionate allowance.35 Such pensions of a pensioner cannot be attached in the execution of
any decree against him. But, private pensions does not fall under the ambit of clause (g), and thus
can be attached or sold.36

Nature of Interest, Unlawful Consideration and Disqualified Transferee

Clause (h) provides for the situations under which a transfer of a property is prohibited, unlike
other clauses describing what kind of properties cannot be transferred. The clause provides that a
property cannot be transferred under following cases:

(i) Where the transfer is opposed to the nature of interest created thereby,
(ii) Where the transfer is for an unlawful object or consideration, and;
(iii) Where the transfer is made to a person who is legally disqualified to be a transferee.
(i) Transfer opposed to nature of interest:
Res communes37 properties, which belong to nobody, from their very nature, cannot be
transferred. Things like air, sunlight, river, sea, etc., are res communes. Things dedicated to
public or religious uses are classified as res extra commercium,38 which cannot be bought or sold.
Debuttar property is non-transferable as being dedicated for religious use only.
(ii) Unlawful Consideration:
Any property which is transferable shall become otherwise, if the transfer is done for an object or
consideration which is considered as unlawful. This shall be read with Sec. 23 39 of the Indian
Contract Act, 1872, which provides conditions for a consideration or the object of the transfer to
be valid. Where the object of the transfer is to defeat or negate the effect of any provision of law,
such object is unlawful as the law is made for being followed and not for being violated or

35
Subraya Mudali v. Velayuda Chetty, (1907) 30 Mad 153.
36
Bhoyrub v. Madhab Chunder, (1880) 6 Cal LR 19.
37
Things owned by no one and subject to use by all.
38
Literally, "a thing outside commerce": Res extra commercium is a doctrine, originating in Roman law, holding
that certain things may not be the object of private rights, and are therefore insusceptible to being traded.
39
What consideration and objects are lawful, and what not: The consideration or object of an agreement is
lawful, unless-
it is forbidden by law; or
is of such nature that, if permitted, it would defeat the provisions of any law; or
is fraudulent; or
involves or implies, injury to the person or property of another; or
the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of
which the object or consideration is unlawful is void.

12
exploited. Also, a transfer of property is held void, if its purpose is immoral or against public
policy.
(iii) Transfer made to a disqualified transferee:
This clause prohibits transfers to person who are not competent to purchase property by any law
or enactment in force. It is the converse of Sec. 7 of the Act. Persons disqualified to be as
transferees are those enumerated in Sec. 136 of the Act. 40 The section disqualifies a judge, legal
practitioner or officer connected with a court from purchasing an actionable claim. The
prohibition under this clause is only with respect to actionable claims, and not for other kind of
properties. Thus, for a debt secured by a mortgage, the judges or the officers of the court are not
legally disqualified treansferees.41

Untransferable right of occupancy

This clause is identical with the proviso to the Sec. 108(j) exempting certain holdings from the
general rule that leaseholds are transferable. In this section, it is also an exception to the general
rule that property is transferable. A tenant having untransferable right of occupancy cannot
transfer his right of occupancy to another person.

The second part of the clause forbids an assignment of an estate by a farmer who is in default in
paying land revenue. Arrears of land revenue due on account of land by any landholder are a
permanent charge on the holding and every part thereof and failure in payment renders the
holding liable to forfeiture.

40
Incapacity of officers connected with courts of justice: No judge, legal practitioner or officer connected with
any court of justice shall buy or traffic in, orstipulate for, or agree to receive any share of, or interest in, any
actionable claim, and no court ofjustice shall enforce, at his instance, or at the instance of any person claiming by
or through him,any actionable claim so dealt with by him as aforesaid.
41
See Sinha, supra note 21, pg. 76.

13
CONCLUSION
Thus, the general law lays down that all property is transferable under the section unless there is
some legal restriction to the same. Sec. 6 makes property of any kind transferable subject to the
exception set out which cannot be purported to be selected by reason of the future character of
the chances. The reality is that a tried conveyance of non-existent property could, when made for
consideration, be valid as a contract and once the object comes into existence equity fastens upon
the property and also the contract to assign becomes a complete assignment. It is well settled that
a transfer of property clearly reflects that the transferor has an interest within the property that is
sought to be conveyed.
Sec. 6 provides that, in general, all types of property may be transferred from one person to
another. However, following are the exceptions to the current general rule that the can be
analysed.
 In probability of an Heir Apparent/ Spes Successionis: the technical expression for the
possibility of an heir apparent succeeding to an estate is termed spes secessionis. It means
succeeding to a property, and implies an interest that has not arisen. However, which can be
arisen in future. It is in expectancy or hope of succeeding to an estate of a deceased person.
Such a chance isn't property as such cannot be transferred. If it is transferred, the transfer is
completely void.
 Right of Re-Entry – this is a right that a lesser has against the lesee for breach of a specific
condition of lease providing that on its breach the leaser shall have the right to re-enter the
land. The transferor reserves this right to himself after having parted with the possession of
the property. This right is for his personal profit and cannot, therefore, be transferred.
 Transfer of Easement- Easement means an interest in land owned by another that entitled his
holders to a particular restricted use or enjoyment. An easement cannot be transferred
without the property that has the benefit of it.
 Interest Restricted in its Enjoyment – The rights given in these cases are strictly of a private
nature and cannot, therefore, be transferred. These rights are restricted to the person to
whom they belong. The right of a “Pujari” in a temple to receive offerings, the right of a
“Widow” under Hindu law to residence and maintenance, etc. are examples of interests
which are restricted in its enjoyment.

14
 Right to Future Maintenance – A right to future maintenance in whatever manner arising
cannot be transferred. It is only for the private benefits of the person to whom it is granted.
Nevertheless, the debts of the past maintenance can be transferred.
 Right to Sue – Mere rights to sue cannot be transferred, unless incidental to transfer of
anther right alongwith.
 Public Offices and Salaries, Stipends, Pension, etc. – Transfer of public offices and salaries,
stipends, pension etc., are void, based on the grounds of equity and public policy.
 Occupancy Rights – Transfer of occupancy rights of a tenant is prohibited on the ground of
public policy. This restriction is obligatory by law for the purpose of regulating relation
between landlords and tenants.

15
BIBIOLGRAPHY
Primary Sources:
The Pensions Act, 1871
The Transfer of Property Act, 1882

Secondary Sources:
Books:
Manohar, Chaitaley, The Transfer of Property Act, Volume-1, 7th Ed., All India Reporter,
Nagpur, 2010
Mulla, Sir Dinshaw Fardunji, The Transfer of Property Act, 11th Ed., LexisNexis, Gurgaon,
2013
Rao, G.C.V. Subba, Law of Transfer of Property, 7th Ed., ALT Publications, Hyderabad, 2012
Sinha, R.K., The Transfer of Property Act, 14th Ed., Central Law Agency, Allahabad, 2013
Tripathi, G.P., The Transfer of Property Act, 18th Ed., Central Law Publications, Allahabad,
2014
Vakil, Darashaw J, Commentaries on the Transfer of Property Act, Volume 1, 4th Ed.,
LexisNexis, Gurgaon, 2013

Internet Sources:
http://indiankanoon.org/
http://lawfarm.in/
http://www.academia.edu/
http://www.legalindia.com/
http://www.manupatrafast.com/
http://www.scconline.com/