This Article is written by Ashima Gupta student of VIPS, Delhi.
The transferability of property is considered a general rule. Non-transferability of property on the other hand is an exception to the general rule. The Transferability of a property is based on the maxim alienation rei praefertur juri accrescendi. It means that alienation is favoured by the law rather than accumulation.
Section 6 of the Transfer of Property Act 1882 states that any kind of property can be transferred but it also provides for certain exceptions. Exceptions are laid down in section 6 from clause (a) to (i) . These clauses lists down cases wherein property in not transferrable.
CONDITION TO DETERMINE A VALID TRANSFER
- Property should be Transferable
- There must be a lawful object of the transfer
- The transferee should not be legally disqualified to take the transfer
- The transfer should not be opposed to the nature of the interest affected thereby
- Competency of the transferor to transfer must be there
- The transfer of property must be made in a prescribed manner
Exceptions to the transfer of property are laid down under Section 6(a)-6(h) of the act: –
The chance of an heir-apparent in succeeding of getting the property or the chance of inherited relationship upon the death of any relative or any other possibility of this nature is non transferrable. For example : ‘X’ dies leaving his widow ‘Y’, and his nephew ‘Z’. ‘Z’ in this case will only have spes succession as his succession to the estate depends upon, ‘Y’ leaving the property intact.
- CHANCES OF AN HEIR APPARENT IN SUCCEEDING TO AN ESTATE
Heir apparent is actually not a legal heir . He is apparently an heir. In a case where a person whose property the heir apparent is going to inherit dies and he dies without leaving any will then the heir will inherit the property. The possibility of a heir apparent to inherit the property of the deceased is an expectation which might be unsuccessful by the activity of some other person who has the power to dispose of the property.
Chance of legacy has been made non- transferable .Legacy means gift of property through will . Will takes effect only after the death of the testator . If two or more wills have been made by a person the last one will be applicable. Only the legatee under the final will gets the legacy.
- POSSIBILITY OF A LIKE NATURE:
This clause also excludes any other possibility which is of a like nature from the purview of transferability. If any other propertyor interest uncertain like a legacy or a spes succession is then that is also non-transferable. Any property which is only a possible future uncertain interest is a non transferable property.
RIGHT OF RE-ENTRY[SECTION 6 (B)]
Clause (b) of section 6 provides the second exception to the general rule of transferability.The right of re-entry basically means a right to resume the possession of a land which has been given to some other person for a certain period of time.
RESTRICTED INTEREST [SECTION 6(D)]
This clause states that a person cannot transfer property which is interest restricted in its enjoyment to him.
For example: –A person cannot transfer his right of enjoyment of a house which is lent him for his personal useto another person.
Religious offices, tenure of services and pre-emption right are some kinds of interest that are non-transferable
RIGHT TO FUTURE MAINTENANCE [SECTION 6(DD)]
The fifth exception is provided in clause (dd) of Section 6. It states that a right to future maintenance in whatever manner arising is not transferrable .
This means that the assignment of a decree for maintenance is only valid if the maintenance has already become due but if the case is of future maintenance it would not be valid. Thus arrears of maintenance can be assigned.So even though the right of maintenance is not transferable, the arrears of maintenance can be transferred. The right of maintenance is a a Hindu widow’s personal right and thus it is incapable of assignment. Arrears of maintenance on the other hand sold like any other debt.
RIGHT TO SUE [SECTION 6(E)]
The sixth exception states that right to sue cannot be transferred. The right to sue is a personal of the party and thus right to sue for an indefinite sum of money cannot be transferred. Right to sue for a definite sum of money can be transferred because it is an actionable claim.
For example – A publishes an article about B . B has a right to sue A because A has published defamatory statements against him but B transfers his right to C. In this case Cdoes not have the right to sue A to recover damages.
PUBLIC OFFICE [SECTION 6(F)]:
A public office can’t be transferred as it is a non-transferrable property. Simolarlythe salary of the public officer also cannot be transferred.The prohibition is based on the public policy as a public office is held for personal qualities.In case the office is not a public office it will be transferable, even if the discharge of its duties indirectly leads to benefit of the public.
PENSIONS [SECTION 6(G)]
Eight exception is provided in clause (g) of section 6 and it states that the stipends allowed to naval, air-force, military and political pensions and Civil pensions of the Government cannot be transferred. Pension means a periodical allowance or stipends granted not in respect of any right to office but an account of past service or particular merit. A bonus or reward is not a pension. Allowances that are granted for other consideration can be transferred.
NATURE OF INTERESTS [SECTION 6(H)]:
In thisno transfer can be made in these three conditions: –
- If it is opposed to the nature of interest affected. These things are non-transferable by inherent nature. For example: – light and air
- Anything with an unlawful consideration or object within the meaning of Section 23 of the Indian contract act, 1872 is not transferrable.Thus if it is is fraudulentor against public policyor is prohibited by law or is of such a nature to defeat the provisions of any law. Then it won’t be transferable
- When a person is disqualified legally to be a transferee. Example : – Judge or Legal practitioner.
UNTRANSFERABLE INTEREST[SECTION 6(I)]:
This clause states that a tenant does not have an untransferable right of Occupancy. Similarly farmers of an state who are paying revenue cannot transfer his interest as they are considered lessee of an estate under the management of court of wards
SAUNDARIYA BAI VS. UNION OF INDIA
In this case it was said that the pension is not a transferable property, as long as it is in the hands of the government and as long as it is unpaid. Another important thing that needs to be considered is that pensions are separate from rewardsand bonuses and these are transferable.
The property that may be transferred is subject to the exceptions mentioned in the Act. Section 6 provide certain exceptions where transfer of property is not possible.
- Saundariya Bai vs. Union of India , AIR 2008 MP227
- Transfer of Property Act 1882
- Transferability Of Property Is The General Rule; Its Non-Transferability Is An Exception Under Transfer Of Property Act https://www.lawyersnjurists.com/article/transferability-of-property-is-the-general-rule-its-non-transferability-is-an-exception-under-transfer-of-property-act/