Transferable and Non-Transferable Property.pptx

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1. Transferable and Non-Transferable Property Section 6 of Transfer of Property Act, 1882

2. What May Be Transferred (Section 6) Section 6 is based on the maxim ‘ alienation rei prefertur juri accrescendi’ - Law favours alienation to accumulation. Any attempt to interfere with the right of alienation of the owner is frowned upon. Hence transferability is general rule and non-transferability is an exception. Three exceptions where transfer of property is prohibited- Transferor does not possess a valid title to the property and is merely hoping to acquire one in future. Transferor has an interest in property that is restricted for his personal enjoyment. Transfer is against public policy.

3. What May Be Transferred (Section 6) Sec. 6 - 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. Untransferable Right of Occupancy Public Office Pension & Stipends Transfer Opposed to Nature of Interest

4. Spes-Successionis, Section 6(a) Section 6 (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. Spes-Successionis – Expectation/hope of succession. Spes-Successionis - Following are not transferable- a) chance of an heir-apparent succeeding to an estate, b) chance of a relation obtaining a legacy on the death of a kinsman or c) any other mere possibility of like nature

5. Section 6(a): Chance of an heir-apparent May not survive the Propositus Propositus has made a will Lagatee may not survive the testator Testator may have made another will

6. Spes-Successionis, Section 6(a) F is a hindu male. He dies leaving behind his wife, W and brother, B. Being the class I heir, the property of F will vest in W and B will merely have a chance of getting the property. B getting the property of F is dependent on three conditions: B survives W W leaves the property intact W may make a will of her property If during the lifetime of W, B transfers the property with the conviction that he is the future owner, such a transfer will be void. However, if next day W dies, leaving the property intact and B actually becomes the owner of the property but now refuses to part with the property, the subsequent transferee cannot claim the property as such transfers are void ab intio and therefore, cannot be enforced. However, he can claim the consideration amount.

7. Spes-Successionis, Section 6(a) F W B X Samsuddin V. Abdul Husein (1906) Official assignee, Madras V. Sampath Naidu (1933)

8. Chance of obtaining a legacy Cannot be transferred. If transferred, such a transfer will be void. Example: X makes a will and under it, bequeaths his house to Y. Till X is alive, Y only has a chance of obtaining this legacy and hence, he cannot transfer the property before the operation of the will. Future Possibility of like nature- cannot be transferred. Examples- lottery/ prize money cannot be transferred.

9. Mere right of re-entry  Right of re-entry means right to resume possession. The right of re-entry is connected or accompanied wit interest in a land. Mere right or re-entry not accompanied with any other interest is not transferable. In case of breach of any condition of lease or tenancy, lessor or landlord can terminate agreement and transfer property to another. But without cancelling agreement he cannot assign right to enter to another

10. Easement apart from dominant heritage Easement is a right which exists for the beneficial enjoyment of a land and is exercised upon the land of another person. The land for whose beneficial enjoyment right exists is called as dominant heritage. And land upon which the rights is exercised is called as servient heritage. Easement right is not personal right but attached to dominant heritage. It cannot be separated and transferred.

11. Restricted interest  Certain interests in a property are to be enjoyed by the owner alone and cannot be transferred. Example : Teacher right to teach, emoluments attached to some office, maintenance granted to wife. If A gave his land to B for performing marriage of B's daughter for some days. B after performing marriage gave land to C. Such transfer is invalid.

12. Right to future maintenance  The right to maintenance is purely a personal right and can neither be transferred nor be attached in execution of decree. Right to receive maintenance is personal right and for his/her own benefits. Such right is non transferable.

13. Mere right to sue Right to sue is actionable claim. Actionable claim is a claim for a certain amount of money and can be transferred. But right to sue for uncertain or indefinite sum of money is not transferable. Example: A publishes defamatory statement against B. Under the law of tort B has a right to claim damages from A. B think that he must sue A claiming Rs 1 Lac. But instead of filing suit he assign this right to C. This assignment of right to sue from B to C is invalid.

14. Public office and Salary of public office- There is prohibition on transfer of Public office and Salary of public office. Pension and stipends - Stipends allowed to military, naval, air force and civil pensioners of the Government and the political pensions cannot be transferred. - Pension is granted for past personal service and for family and dependants .

15. Transfer opposed to nature of interest etc.- Under this clause there is prohibition in the transfer of property under certain situation- 1. Where transfer is opposed to the nature of interest created thereby. There are certain properties which by their very nature can neither be owned not transferred. Like air, light, space, sea. or for religious purposes. Such property is known as res- communis i.e. property of the whole community of the world.

16. 2. Transfer where its object or consideration is unlawful- • Any transfer is unlawful where its object of consideration is unlawful as per the section 23 of the Indian Contract Act 1872. A transfer is unlawful if- its is forbidden by law, it is of such nature that if permitted it would defeat the provision of any law or, it is fraudulent or, it involves injury to a person or property of the others or, it is immoral or opposed to public policy.

17. 3. Transfer made to a disqualified transferee- For a valid transfer the transferee must be legally qualified. A legally disqualified transferee make transfer invalid. Eg. insolvent, transfer to presiding officer or court officer, advocate during litigation, etc.

18.  Untransferable Right of Occupancy Right of occupancy - Certain rights of occupancy are made inalienable for example occupancy of a tenant, farmer interest in agricultural land.

19. References Transferability under sec 6 of the TP Act, available at https://www.academia.edu/37423690/transferability_under_sec_6_of_the_TP_act Not all property can be transferred, available at https://www.thehindubusinessline.com/todays-paper/tp-mentor/article29168683.ece