What may be transferred and what cannot be transferred under the Transfer of Property Act, 1882?

Question: What may be transferred and what cannot be transferred under the Transfer of Property Act, 1882? [MPJS 2007]

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Answer

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 an 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 expression transfer of property implies various meanings. One sense may be transfers of things such as the sale of a house. Another sense may be a transfer of one or more of the rights in a thing such as a mortgage of a house or a 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.

What may be Transferred?

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 successionis 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 expected that Chandini, his aunt, who had no issues, would bequeath her house worth Rs. 50,000 and transfer 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 a 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 the 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 nature of interest. 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 untransferable 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 mentions that certain things cannot be transferred. Such a transfer if undertaken would be invalid in the eyes of the law in India.