THE TRANSFER OF PROPERTY ACT
Q. 1. Explain the following terms :-
(A) Immovable Property.
(B) Attached to earth.
(C) Actionable Claim.
Ans. (A) Immovable Property
The Transfer of Property Act, 1882 does not define the property. The property has been divided into movable and immovable property. According to Section 3 of the Transfer of Property Act “immovable property” does not include standing timber, growing crops or grass. The definition of term “immovable property” in this section is a negative definition. It is not comprehensive and exhaustive definition. It merely excludes standing timber, growing crops or grass. The Act does not give the positive definition. It only tells that standing timber, growing crops or grass are not the immovable property. Probably all residue are immovable property.
Immovable properties mean that properties which are unable to change its place. If place of immovable property is changed, the qualities, salient features and position of that property will also be changed automatically: So far as movable property is concerned it retains its qualities and position after change of its places.
The positive definition of immovable property has been given in Section 3(26) of the General Clauses Act, 1897. According to this immovable property includes land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. The definition given in Section 3(26) of the General Clauses Act, 1897 is applied to the Transfer of Property Act, 1882. However, the definition of immovable property given in Section 3 of The Transfer of Property Act, 1882 and in Section 3(26) of the General Clauses Act, 1897 both explain the definition of immovable property that immovable property includes the following clements:-
1. Land,
2. Benefits to arise out of land, and
3. Things attached to the earth, i.e.. (a) things embedded in the earth; (b) things attached to what is so embedded in the earth; (c) things rooted to the earth except:-
(1) standing timber,
(2) growing crops, or
(3) growing grasses.
1. Land.- Land means surface of the land. It includes every things which are upon the surface, under the surface and also above the surface of the land. The soil, mud, water, pond and river are also the part and parcel of the land. Sub-soil of the land, minerals, coals and gold mines are immovable property. The space which are above the surface of the land is also immovable property because of the fact that space starts just above the surface of the land.
2. Benefits to arise out of land. – The benefits to arise out of land are immovable property. The benefits a person gets out of land is called his beneficial rights or interest. Any right exercise by a person on a piece of land and right to get certain profit is his intangible immovable property. The right of way on a land or right to use a land under lease or tenancy is immovable property. The right of a tenant to live in the house of land-lord and right to catch the fish from the pond or river are also an immovable property. The rights of ferry on river or lake waters by boats or steamers are immovable property as water of river or lakes are immovable property. Likewise right to extract coal or gold from the mines is immovable property.
3. Things attached to earth.- According to Section 3 of the Transfer of Property Act, 1882 expression ‘things attached to earth’ means: (i) things embedded to earth, (ii) things attached to what is so embedded in earth, and (iii) things rooted in the earth.
(i) Things embedded in the earth.- As in the case of walls or buildings which are fixed in the earth and become part of the land. Electricity poles are also embedded in earth. Likewise heavy things such as anchor, road roller or a heavy stone placed on the surface of the earth may go two or three feets deep into the earth by virtue of their weight are also things which are embedded in the earth and they are immovable property. If there are some things placed on the surface of the earth without any intention to make them the part of the land such things are not treated as embedded in the earth, therefore such things are not immovable property.
The machineries which are attached to a concrete base by nuts and bolts and large vessels which were fixed in the distillery for brewing liquors they are not immovable property but a movable property because of the facts they are fixed with the intention for trade purposes and not with the intention of the beneficial enjoyment of the land. The degree and mode of annexation depend upon the intention of the parties. [Holland v. Hodgson, [26 LT 7067].
(ii) Things attached to what is so embedded in the earth.- Things attached to what is so embedded for the permanent beneficial enjoyment of that which is embedded to the earth. The things so attached also become immovable property. The doors and windows of a house with are attached to its walls for permanent enjoyment of the house are also immovable property because of the fact that they are attached to that things which are embedded in the earth such as the walls of the house. The doors and windows become the part of the walls of the house. The things attached without any intention to making them as the part of house or building or walls are not the immovable property as electrical bulbs or screens of doors or windows. Such things are not attached to walls for permanent beneficial enjoyment of the house but only for the use and enjoyment of itself.
(iii) Things rooted to the earth,- Rooted in earth as in the case of trees and shrubs. The trees, plants shrubs and herbs are rooted in the earth firmly with helps of their roots and become the part of the land. In this position they are called immovable property. But when they are cut down their position is changed and they come under the category of movable property. But according to Section 3 of the Transfer of Property Act as an exception to this general rule standing timber, growing crops and grass are movable properties.
(a) Standing timber.- The trees rooted and standing on the earth living, growing and flourishing are immovable property. The Transfer of Property Act vide Section 3 provides an exception to this general rule that “Immovable property does not include the standing timber, growing crops or grass.”
“Timber” means such a tree that are chiefly meant to be used either for building purposes or burning purposes. Their woods are used for buildings or furnitures or burning purposes. Sometimes it is very difficult to distinguish about the objects of the trees.
Bamboo trees have no utility except that they may be used in making houses or as poles, therefore, bamboo trees are movable property.1
Babool, Sheesam, Neem and Teak trees are used for making houses. doors, chairs and tables therefore, they are movable properties.2
Fruit bearing trees are immovable properties.3 Palm or Date trees are also immovable property as they are planted exclusively for fruits or drawing toddy from them. Really it depends upon the intention of the gardener or owner of the tree if it is intended to take further vegetable or fruits from them and also intended to keep the tree alive. Such type of trees are immovable property but if it is intended to cut the tree early and to use the wood of the tree for building of house, door or furniture or for burning purposes, it is movable.4
(b) Growing Crops or growing grass. Growing crops means the crops which are standing in the field or forms as the wheat, barley or others. They are collection of plants rooted in the earth and such plants are
1. State of Orissa v. Tilaghur Paper Mills Co. Ltd., AIR 1985 SC 1293.
2. Baijnath v. Ramadhar, AIR 1963 All 214.
3. Moti Singh v. Deoki Singh, AIR 1936 Pat. 46.
4. Shanti Bai v. State of Bombay, AIR 1958 SC 532.
bound to be cut when they ripe. Likewise, there are various crops as paddy, potato and various types of vegetable. Crops of grapes and betel leaf.
(c) Growing Grass.- Growing grass is also a movable property, as they are used as fodder for cattle. The growing grasses are bound to be cut down for fodder of cattle or be grazed by cattle. The right to cut the grass is exercised upon the earth and a beneficial interest arising out from the earth,
Therefore, the right to cut the grass is an immovable right. The following are several interests and rights which are recognized by the Courts as immovable properties.
(1) A jalkar right [Bhundel Panda v. Pandal Das Patil, 12 Bom 2211.
(2) The equity of redemption [Kanti Ram v. Kutubbudin, 22 Cal 33].
(3) A right of ferry [Krishna v. Akilanda, 13 Mad 54].
(4) A pension or right of periodical payment [2 IC 489].
(5) A right to use stream water.
(6) A hereditary office under Hindu Law.
(7) A right to collect rents and profits of lands.
(8) A right to sever and collect leaves of Tendus trees (Mullji Sicca & Co. v. Noor Mohd., AIR 1938 Nag 377].
(9) right of way or an easement [Mahadeo Rao v. Kashbai, I LR 34 Bom 287].
(10) right to ferry, right to transport through rivers, right to fishery.
(B). [Note-See the answer of Q. No. 1 (A).]
(C). Actionable claim
Actionable claim has been defined under Section 3 of The Transfer of Property Act, 1882. “Actionable claim” means a claim to any debt, other than the debt secured by mortgage of immovable property or by any hypothecation or pledge of movable property or to any beneficial interest in any movable property not in the possession, either actual or constructive of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing. conditional or contingent.
In order to ascertain whether a claim is actionable claim or not first of all we have to determine whether it is a debt?
Debt.- The term ‘debt’ includes a sum of money due by one person to another and which is actually payable at the time as well as sum of money which is due though actually not payable then. It must be mature and absolute debt and not merely the sum of money which may or may not become payable at some future time or payment of which depends upon contingencies which may or may not occur.
In case of Bhupati v. Phanindra, (40 CWN 104] a debt is illustrated as “a sum of money payable or will become payable in future by reason of present obligation.”
A sum of amount payable for sale of a medicine is a debt and as such it is an actionable claim. For the actionable claim the amount payable must be certain and ascertained. Actionable claim is existing debt. It intends thereby to exclude a debt which does not yet exist. A claim to pay unpaid dower is a debt and such it is an actionable claim.
I. The following are actionable claims:
(1) Claim for arrear rent.
(2) Rent due to pay in future is also actionable claim.
(3) The benefits of an executory contract.
(4) A right to get the division or share of a piece of land received by a donor in a gift deed.
(5) A share in partnership.
(6) Rights to get the benefits of annuality even though it is to be charged on immovable property.
(7) Both ordinary and endowment life policies.
(8) Rights to get the proceed of the business.
(9) Rights to get the amount of provident fund after retirement.
(10) Muslim woman’s claim for unpaid dower.
(11) claim for money due under insurance policy.
II. Claims or rights which are not actionable claim:
(1) Right to get damages which is uncertain money under the Law of Torts or for the breach of the contract.-[Motilal v. Rahylal, (1933) All. 642].
(2) A claim to mesne profits is not actionable claim. A debt is actionable claim but debt which has been barred court is not actionable claim.
(3) A copyright or other original work of skill or any invention is not actionable claim because of the fact it is already vested in the persons who have it.-[Savitri Devi v. Dwarika Prasad, 1939 ALJ71.
(4) Future decree is not actionable claim.-[Jugal Kishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376.]
(5) A right to sue for account and to recover money which might be found due on taking account is not actionable claim because of the facts that such amount is not certain amount.
(6) Right to recover money from co-sharer is not actionable claim.
(7) Debt secured by mortgage of immovable property or by hypothecation of movable property is not actionable claim [Section 3 of Transfer of Property Act.]. A debt is distinct from the security. A debt can be transferred apart from the security.
Q. 2. What do you understand by Notice? Explain the different types of Notice.
Or
What do you understand by the ‘doctrine of Notice’? To what extent and under what circumstances registration of a document can amount to Notice.
Or
Write a brief note on Notice. Under what circumstances does ‘possession’ amount to a Notice ?
Or
Explain Notice & Constructive Notice in detail.
Ans. Notice.- The term ‘Notice’ has been defined under Section 3 of the Transfer of the Property Act, 1882 as under:- “A person is said to have notice” of the fact, or when, but for wilful abstention from an enquiry or search which he ought to have made or gross negligence, he would have known it.
Simply Notice means knowledge or information of a fact. Where a person has knowledge of any fact or it could be proved that under some of the definite circumstances he must have knowledge of such fact, he is said to have notice of that fact. The Notice has binding force on the person who has knowledge of it. No person can deny the knowledge of the fact if it goes against him.
There are two kinds of notices according to Transfer of Property Act, 1882. They are as under :-
(1) Actual or Express notice, and
(2) Constructive notice.
1. Actual or express Notice.- Actual Notice means direct or express knowledge or definite information about any thing. It is a matter of fact. Therefore, actual notice must be definite information given by a person interested in the thing in respect of which the notice is issued. A general, or mere conversation in which knowledge of certain things is conveyed or given, is no notice of it. It is settled rule that a person is not bound to attend the vague rumours or statement by mere stranger. In other words, the party imputing notice must show that the other party has knowledge which would operate upon the mind of any rational man or man of business and make him act with reference to the knowledge he has so acquired-per Lord Eairn L.C. in Liyed v. Bank, LR 3 Ch 488 at page 490.
Only the knowledge of the parties interested in the transaction is actual notice regarding that transaction. The information of any other person who is a stranger to the transaction is no notice.
The knowledge or information must be about or related to the transaction in question.
2. Constructive Notice.- Doctrine of constructive notice is based on the principle of equity. Under certain circumstances Court presumes that a person should have knowledge of that fact. The Court would presume that person concerned is bound to know that fact. He cannot deny that he has no knowledge or he has got no acfual or express notice. It is a legal presumption.
There are five classes of constructive notice. They are as under:
(1) Wilful abstention from inquiry amounts to notice.
(2) Gross negligence may amount to notice
(3) Actual possession.
(4) Notice to agent.
(5) State of property amounts to notice.
(1) Wilful abstention from inquiry amount to Notice. A desire to avoid to search, inspection and inquiry etc. would amount a person to ultimate knowledge. In case of Bank of Bombay v. Sulaiman, [33 Bom I (PC)] S appointed his first wife’s son as executor of his will and so executed a will regarding house and land and later on executed a next will in favour of his second wife’s son charging Rs. 30,000/- on the property which was given to son of his first wife. The first wife’s son borrowed from the bank depositing the title deed of the house and land as security. The bank did not make the detailed inquiry regarding will mortgage and charge on the property. Therefore, it was held that the Bank had the constructive notice regarding the real position of the property.
(2) Gross Negligence may amount to notice. Simply where any person does not perform his duty carefully and alertly as required to be performed by a person of ordinary prudence it is said that he has committed gross negligence. If the negligence is so grave or gross that a man of ordinary prudence can never be expected to do, the negligence is ‘gross’. It is carelessness of grave nature but without any mala fide or had motive.
(3) Registration. According to explanation I of Section 3 of the Transfer of Property Act. where any transaction relating to immovable property required by law to be and has been effected by a registered instrument any person acquiring such property or any part part or share of interest in such property shall be deemed to have notice of such instrument as from the date of registration of or where the property is not at all situated in one sub-district or where the registered instrument has been registered under sub-section (2) of Section 30 of the Indian Registration Act, 1908 from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or the property wherein a share or interest is being acquired is situated.
From the date of such registration it will be deemed as a notice to all such persons who are acquiring any interest in that property.
The registration operates as a notice in following cases:
(i) Registration is notice only of those documents which are compulsorily registerable.
(ii) The instrument should be registered in the manner prescribed by the Indian Registration Act, 1908.
(4) Possession as the notice. Before insertion of explanation II in Section 3 there was difference of opinion regarding the possession as a constructive notice. But after insertion of explanation II, it is generally held that it should be regarded as a constructive notice of the rights of a person in possession. It has been held that such possession is in itself a constructive notice of the title under which such possession is retained.- [National Bank of Australia v. Paul Hamiltan, AIR 1929 PC 274.]
(5) Notice to Agent. Notice to agent has been explained vide explanation III under Section 3 of Transfer of Property Act. Followings are the essential for a notice to agent:
(1) Notice should have been received by the agent while acting on the behalf of the principal. It means that he must have received notice in capacity of an agent.
(2) Notice should have been received in the course of agency business.
(3) Notice should have been of a fact regarding the agency business. If it is not received in the course of the agency business it would not be a valid notice to an agent.
(4) If any agent has commited or played fraud and has concealed some fact from the principal, the general principle of notice to agent does not apply.
(5) State of Property- Sometimes situation and condition of the property speaks louder than the person. The property tells its story itself. An inference may be drawn about a plot as a Ram Lila place if there are statue of Ram and Ravana.
Q. 3. What is meant by Attestation? What are the requisites of a valid Attestation? What are the consequences of invalid Attestation?
Ans. Attestation. Attestation is defined under Section 3 of the Act as under “attested in relation to an instrument means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument or has seen some other person sign the instrument in the presence and by the direction of the executant or has received from the executant a personal acknowledgement of his signature or mark or signature of such other person and each of whom has signed the instrument in presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
Attested means that a person signed the document by way of testimony to the fact that he actually saw it executed.
It is a settled provision of law that two persons must attest or become witness to the fact that executant has executed the instrument and has signed the deed of transfer. This act of giving evidence is called attestation. The persons who give such types of evidences are called attesting witnesses.
Object of Attestation. It ensures the authenticity or truthfulness and also confirms that the executant has executed the document with free consent without any force, fraud or undue influence.
Who can Attest? Any two persons who possess sound mind and age of majority can act as attesting witnesses. The writer of deed and typist of deed cannot be treated as the witnesses of the deed because of the fact that attestation is special act of certifying the signature of executant. But writer or typist of deed may perform the dual role. They have to mention that they are also attesting the instrument. The attesting witnesses do not confirm that they have knowledge about the contents of the instrument. [Sunder Kuer v. Shah Udey Ram, AIR (1944) All 42]. Similarly-Registering officers can perform dual role if they have intention to act also as attesting witnesses. [Venkata Shastri v. Rahilna Bi, AIR 1962 Mad 111; Abdul Jabbar v. Venkata Sastri, AIR 1969 SC 1147]. The transferee or transferor cannot attest the instrument.
Legal effect of attestation
Mere attestation of the instrument does show that attestator has the knowledge of the contents of the instrument. At the time of attestation such circumstances may arise that the contents of instrument may be read over the attestor and on the ground of challenging rights of transferee, or denying the authority of the executant to execute the instrument. [Bhagwan Singh v. Ujagar Singh, 1928 PC 20.]
English and Indian Law. There are mainly two differences between English and Indian Law. They are as under:
(i) According to English law both witnesses should be present at the same time whereas under Section 3 of the Transfer of Property Act it is not necessary that both the attestors should be present at the same time, and
(ii) they should actually see the execution of the instrument.
Essentials of Valid Attestation
As per Section 3 of the Transfer of Property Act following are the essentials for a valid attestation:-
(1) The attestation must be done atleast by two or more persons. Instrument attested by only one witness is not valid.
(2) All attesting attestors must (i) see the excutant signing the instrument or affixing his mark (Thumb impression) on it, or (ii) see some other person signing the instrument in presence of and under the direction of executant, or (iii) has received from executant a personal acknowledgement regarding his signature or mark or signature of other person.
(3) All attesting witnesses has signed the instrument in presence of the executant.
When the executant signs the instrument in presence of attestors, the attestors become sure that the instrument has been signed by genuine person and there is no undue influence and fraud. The executant as well as all witnesses too should sign on the instrument in presence of the executant. [Abinash Chand v. Dasrath, AIR 1929 Cal 123]. The attestation cannot take place before executants signature.
The consequences of invalid attestation
The question whether the attestation is valid or not, and is accepted by Court or not is a mixed question of ‘fact and law’ If no objection regarding validity of attestation has been raised earlier it cannot be raised in appeal.-[Brijraj Singh v. Sewak Ram, AIR 1999 SC 2203.]
Q. 4. What do you mean by transfer of property? Who is competent to transfer the property?
Ог
What are the essential for a valid transfer ?
Ans. Definition of Transfer of Property. According to Section 5 of Transfer of Property Act “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 of Property” is to perform such act.
In this section “living persons” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.
It is clear from the above that “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 to Transfer of Property’ is to perform such act.
The analysis of the definition of the transfer of property may be done as under:
(1) an act by which
(2) a living person
(3) conveys
(4) in present or future
(5) property
(6) to another living person or to himself and one or more another living person.
Transfer of property is an act. Under the Transfer of Property Act, the property is transferred by a living person to another one or more living persons by an act. The transfer of property in case of wills or inheritance or under process of law or any transfer of property under Zamindari Abolition and Land Reforms Act of U.P. or any transfer of property under the personal law as under Muslim Law are beyond the purview of Transfer of Property Act.
Section 5 of the Transfer of Property Act makes it clear that only transfers inter vivos are dealt within the Act. The transfer of Property Act is not exhaustive. It deals with sale, mortgage, gift, lease and exchange. There may be another kind of transfers and they would not be governed by the Transfer of Property Act.
The following transaction or handing over the property are not under the definition of transfer of property according to Transfer of Property Act.-
(1) Abandonment of Claim. A relinquishment of claim to a property, relinquishment in favour of a coparcener, and a Hindu widow’s surrender in favour of nearest reversioner are not a transfer because of the facts there are no conveyance or handing over the properties to the transferee. Therefore there are no transfer according to Section 5 of Transfer of Property Act. [Khunni Lal v. Govinda, 33 All 356 (PC).]
(2) Family arrangement and settlement of disputed Claim. Such transaction between the members of the same family for the general benefits is not transfer of property. Such arrangement of family would be binding on the parties. True nature of family arrangement does not involve any sort of transfer. In Sadhu Madho Das v. Pandit Mukund Ram, AIR 1955 SC 48; and K. Jagannathan v. A.M. Vasudevan Chettiar, AIR 2001 Mad. 184, the apex court has settled that family arrangements are based on the assumption that there is an existing title of some sort in the parties.
In Ramdeo Foods Products Pvt. Ltd. v. Arvind Bhai Ram Bhai Patel, AIR (2006) S.C. 3304, it was held that such memorandum agreed between the family members can be treated as family settlement and the court cannot interfere with this.
(3) Partition. A partition only effects a change in the enjoyment of property-There is no transfer of property.-[V.N. Sarin v. Ajeet Kumar, AIR 1966 SC 432.]
(4) Surrender. Word ‘surrender’ has not been defined in any statute law. It is used in Section 111 regarding the surrender of lease. Surrender is not a transfer.-[Makhan Lal Saha v. N.N. Adhikari, AIR 1933 Cal 467.]
It, therefore, may be concluded that transfer of property means an act by which a living person conveys property in future or present to one or more other living persons or to himself and one or more other living persons, to transfer of property is to perform such act.
Similar is not the situation with release. In release some new titles or interest are added to his already existing interest there is conveyance hence if amounts to transfer of property. Such release may be with or without consideration (M. Krishna Rao v. M.L. Narasikha Rao, AIR 2003 AP 498).
(1) Any Act by which. It is an act or process. The person who wants to transfer his property he has to perform an act to transfer the property. It is not transferred automatically without performing the act of transfer.
(2) Living person. A living person can transfer his property to another one living person or more another living persons. A living person cannot transfer his property to dead or non-living person. Both parties transferor and transferee must be living persons. They may be natural or juristic persons,
(3) Conveys. In the case of transfer handing over the property from transferor to transferee is essential. In fact the essence of word transfer is “to convey” which has the effect of conveying any property or any interest therein from one living person to another.
(4) In present or in future. The expression present or future governs the word conveys not the word property. Transferor may arrange the transfer of property immediately or he may also make such arrangements in which transfer of property or any interest thereof may take effect in future date. He is free to impose certain condition upon the transfer of property which is essential to fulfil for valid transfer.
(5) Property. Property is a bundle of rights and interest. It may be used in sense of rights and interest of owner or other. The property is not only the things which is capable of physical possession and subject ownership but it also includes the right of ownership or partial ownership Likewise a transfer of property may be absolute ownership or of one or more of these component rights or interest. It is observed by the Supreme Court in case of Sunil Sidharthbai v. Commissioner of Income Tax, AIR 1986 SC 386 that transfer of property means passing of entire bundle of rights from transferor to transferee. But in special cases there may be transfer of some of such rights or interest. It is generally called as partial transfer of right or interest. For example A sells his house to B, there is transfer of absolute rights of house. On another hand if A transfers only right of enjoyment of his house to B for a fixed period it is called lease and it is a transfer of partial interest of his house.
(6) To another living person or to himself. According to Section 5 there must be two living persons or parties. There may be natural or juristic persons. They are generally called transferor and transferee. One cannot transfer his property to himself. But one can transfer a property himself in some other capacity. A person may create a trust regarding his property and appoints himself as the sole trustec.-[Narainbhai v. Suleman, (1975) 16 Guj LR 289.]
Q. 5. “Any property can be transferred under the Transfer of Property Act.” Has it some exceptions? Explain.
Or
What are those properties which cannot be transferred under the Act?
Or
Discuss transferable and non-transferable property.
Ans. It is general policy of law to promote free transfer of property Alienation is favoured by law rather than accumulation. Accordingly Section 6 of the Transfer of Property Act enacts that 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.
Transferability of property is a general rule, its non-transferability is an exception. Section 6 of the Act deals with transferable and non-transferable properties too. Generally transferability is one of essentials elements of the property and non-transferability is one of the exceptions. Following are the some of exceptions of non-transferability of the property:-
(1) Spes-successionis. Chance of an heir-apparent, getting property under Will and other possibility of like such nature. Spes-successionis under Muslim Law in Punjab and English Law are not transferable.
(2) Mere right of Re-entry.
(3) Easement apart from dominant heritage.
(4) Restricted interest.
(5) Mere right to sue.
(6) Public office & salary of public officer.
(7) Pension and stipends.
(8) Transfer opposed to nature of interest and interest created thereby.
(9) Such transfers where object or consideration is illegal.
(10) Transfer made to disqualified transferee.
(11) Where there is untransferable right of occupancy.
It is therefore, clear from the above that transferability of property is a general rule and its non-transferability is an exception.
Essentials of a valid transfer
The following are the essentials of a valid transfer of all kinds of property:
(1) According to Section 6, the property must be transferable.
(2) According to Section 7, transferor must be competent to transfer.
(3) According to Section 6 (h) (3), the transferee must be competent to take the transfer.
(4) According to Section 6 (h) (2), the consideration or objects of the transfer must be lawful.
(5) According to Section 6 (h) (1), it should not be opposed to the nature of the interest affected thereby.
(6) According to Section 9, the transfer must be made according to manner and the form prescribed by the Act.
Exceptions to the rule of transferability
The following are the exceptions wherein a property is not transferable:
(1) According to Section 6 (a), the chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining the legacy on the death of a kinsman or any other mere possibility of a like nature, cannot be transferred.
The heir-apparent is apparently an heir but not a legal heir. Father and son are entitled to inherit the property of each other but it is not certain that who will die first. Because it is an uncertain event. It is bare right which cannot create any interest. It is not present and certain or fixed right in the property. Therefore a chance of heir apparent is a non-transferable property. Likewise, chance of legacy, any other possibility of a like nature, right to receive future offerings are not transferable properties.
(2) According to Section 6 (b), mere right of re-entry for breach of the condition subsequent cannot be transferred to anyone except the owner of the property affected thereby. Under this clause, right of re-entry refers to the right of lessor or landlord to resume possession of his property from donor (tenant) upon the breach of condition subsequent. The right of re- entry without any interest in the land is simply a personal licence, Therefore, mere right to re-entry, being a personal licence cannot be transferred under the law.
(3) According to Section 6 (c), an easement cannot be transferred apart from the dominant heritage. An easement is an incident of the ownership of the dominant heritage and passes with it. It cannot be detached from its dominant heritage and transferred separately.
(4) According to Section 6 (d), an interest in property restricted in its enjoyment to the owners personally cannot be transferred by him. For example, A lends his house to B treating him as his close friend on occasion of his daughter’s marriage. B cannot transfer that right to any one. Because of the fact it is personal right and if B transfers that right to anyone that will defeat the purpose for which it was handed over to him.
But a person, who obtains absolute right as an owner by way of inheritance, can transfer the same property by way of a gift but can retain right to enjoy and possession. It is not a transfer of restricted interest K. Bal Krishnan v. K. Kamalam, AIR 2004 SC 1257].
(5) According to Section 6 (dd), a right to future maintenance, in whatsoever manner arising, secured or determined cannot be transferred. A right to future maintenance is mainly for the personal beneficial interest of the person concerned. It is personal right of the person to whom it is granted. This clause provides a statutory prohibition against its transfer.
(6) According to Section 6 (e), a mere right to sue cannot be transferred. The word ‘mere’ is quite enough to clear the provision that transferee has acquired no any interest except a bare right to sue. The right of action for damages in tort or for breach of contract are mere right to sue and as such cannot be transferred. A document authorising someone to suc cannot be treated as deed of conveyance for the purpose of stamp duty as the same does not amount to transfer of property as mere right to sue cannot be transferred under the provisions of Transfer of Property Act. [M/s McDowell & Co. Ltd. v. District Registrar Vishakhapattanam, AIR 2000 Α.Ρ. 374].
(7) According to Section 6 (f), a public office cannot be transferred nor can the salary of a public officer whether before or after it has become payable.
(8) According to Section 6 (g), stipend allowed to Military, Naval, Air- Force and civil pensioners of Government and political pensions cannot be transferred. The transferability such interests would defeat the very purposes for which these interests exist.
(9) According to Section 6 (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, or (3) to person legally disqualified to transferee.
As pensions are concerned only because of the past services or personal merits, therefore, these interests are personal to the recipient. If such interests are transferred it would defeat the very objects and purposes for which there interests were granted. Pensions are paid on account of past services or particular merits or as compensation to the families or dependents. [Secretary of State v. Khem Chand, (1880) 4 Bom 432.]
According to Section 6 (i), a tenant having intransferable right of occupancy cannot transfer his right to another person. Similarly, a farmer of an estate in respect of which default has been made to paying revenue is not authorized to assign his interest in the agricultural holding. Lessee of an estate under the management of a court of words is also prohibited from assigning his interest.
Transfer of Mesne profits. A right to recover mesne profits being a mere right to sue is not transferable.-[Shankerappa v. Khatumbai, AIR 1942 Mad 209].
Transfer of Decree. Decree is property of decree-holder but it is neither an actionable claim nor a mere right to sue. Original cause of action is not transferable but if the same claim has been established by the Court under a decree, it assignable and assignment of decree for mesne profit is a valid transfer.