Property of ‘Any Kind’ May Be Transferred

The Transfer of Property Act, 1882 (hereinafter, the Act) [1] is a civil legislation of immense importance owing to the vast number of property related transactions taking place throughout the country. A uniform legislation was the need of the hour considering this factor, and this act was drafted to serve the selfsame purpose.

In the Transfer of Property [2] is defined as 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 act. In this section ‘living person’ 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 important to note the meaning of the word property as applied in the act. Property has been given a rather wide spectrum covering both tangible material things, e.g., land and houses as well as rights which are not exercised over any material, e.g., a right to repayment of a debt. The word ‘transfer’ in the Act has also been used in a wide sense. It may mean either transfer of all the rights and interests in the property or transfer of one or more of subordinate rights in the property. Thus, the expression ‘transfer of property’ may, therefore, imply either transfer of things, transfer of one or more of the rights in a thing, or transfer of a debt. [3]

From the above discussion, it is clear that, the expression transfer of property as defined in section 5 is wide enough to cover any transaction which has the effect of conveying property from one living person to another. Since conveying of the property involves the creation of new title or interests in favour of the transferee. That is to say, if new title or interest has not been created in favour of the transferee, the property is not conveyed, hence no transfer of property. [4]

In this paper, the researcher seeks to differentiate between the types of property that may be transferred from the non-transferable type. Also, in the opinion of the researcher, it is essential to understand the connection that exists between the transfer of property on one hand, and the S. 60 of the Civil Procedure Code, 1908 [5] (hereinafter, the Code) in this regard. The focus of this paper would be on the provisions of the Act, with close reference to the relevant section of the Code, in trying to understand the nature of property in general, thereby trying to answer the specific question of whether or not all property is transferable.

Transferable Property and Attachment- a Critical Overview

Section 6 of the Act explains the nature of the property liable to be transferred under the said provision. [6]

In general “property of any kind may be transferred’. There is however, a series of exceptions to this, as enumerated under sub-sections (a) to (i), explained hereafter. It is interesting to note the distinct similarity between these sections and those made by Section 60 of the Civil Procedure Code as to the property which cannot be attached in the execution of a decree. Although there is this similarity yet there is a difference between the exceptions made in this section and exceptions made in Section 60. Certain things such as tools of artisans and necessary cooking vessels can be transferred, yet they, under Section 60 of the Code cannot be attached. [7] Apart from the exceptions made by the present section there are certain restrictions imposed by other laws on the power of transfer. For e.g., restrictions in Hindu law against the transfer of coparcenary property. [8]

Sub-section (a): Spes successions:

Spes successionis within the meaning of Section 6 of the Act: The things referred to in this Sub-section as non-transferable are the chance of an heir succeeding to an estate, the chance of a relation obtaining a legacy (a gift by will) on the death of a kinsman, and any other mere possibility of a like nature.

Examples [9] :

Interest of reversioner (transfer is a nullity)

Chance of legacy (the bequest of legacy is a mere chance)

Mere possibility (no priest can assign his right to receive future offerings)

Easement in gross (i.e. an easement apart from dominant heritage)

Right of preemption (a personal privilege cannot be transferred except to owner of property)

Widow’s right to maintenance against husband’s property

Right to future maintenance fixed by agreement or decree

Mere right to sue.

Under Sec. 6 (a), however, transfer of a bare chance to get the property is prohibited. After the death of the husband, for example, if two widows inherit their husband’s properties together, the transfer of bare chance of the surviving widow taking the entire estate as the next heir of her husband on the death of the co-widow is prohibited under Sec. 6 (a). It, however, does not prohibit the transfer by the widow of her present interest in the properties inherited by her together with the incidental right of survivorship. Such widows could validly partition the properties and allot separate partitions to each and, incidental to such an allocation, could agree to relinquish her right of survivorship in the portion allotted to the other. [10]

Example. A expecting that C, his paternal aunt, who had no issues, would bequeath her house worth Rs.20000, transfers it to B. The transfer is invalid. The above rule regarding prohibition of the bare chance doctrine and spes successionis apply in this case.

Sub-section (b): Right of re-entry

By a mere right of re-entry is meant a right to resume possession of land which has been given to another person for a certain time. This right of re­entry is’ usually inserted in leases empowering the lessor to re-enter upon the demised premises if the rent is in arrear for a certain period or if there is a breach of covenants in the lease. This Sub-section lies down that the right of re­entry cannot be transferred by itself apart from the land.

Example. A grants a lease of a plot of land to B with a condition that if B shall build upon it, he would re-enter. A transfers to C his right of re-centering in case of breach of the covenant not to build. The transfer is invalid for two reasons, one, the right is a personal licence and not transferable, second, the transferee could only use it for the purposes of a suit to enforce the right without acquiring any right in the property. But if A transfers the whole of his interest in the property, i.e., ownership along with the right of re-entry to C, the transfer shall be valid being a legal incident of the property.

Sub-section (c): Easement

An easement is a right to use, or restrict the use of land of another in some way. Examples of easements are rights of way, rights of light and rights of water. An easement involves the existence of a dominant heritage and a servient heritage. That is, there must be two parcels of land, one (the dominant heritage) to which the benefit of the easement attaches, and another (the servient heritage) which bears the burden of the easement. But technically an easement cannot exist in gross (independently of the ownership of land but only as appurtenant) attached to a dominant heritage. It follows therefore that an easement cannot be transferred without the property which has the benefit of it.

Example. A, the owner of a house X, has a right of way over an adjoining plot of land belonging to B. A transfers this right of way to C. The transfer is a transfer of easement and therefore invalid. But if A transfers the house itself, the easement passes on to C on such transfer.

Sub-section (d): Restricted interests

This clause states, a person cannot transfer an interest restricted in its enjoyment of him. A transfer of such interest would defeat the object of the restriction. As an example, if a house is lent to a man for his personal use, he cannot transfer his right of enjoyment to another. Under this clause, the following kinds of interest have been held not to be transferable:—

(a) A religious office

(b) Emoluments attached to priestly office. Where, however, the right to receive offerings made at a temple is independent of an obligation to perform services involving qualifications of a personal nature, the right is transferable.6

(c) A right of pre-emption.

(d) Service tenures.

Sub-section (dd): Maintenance

A right to future maintenance is solely for the personal benefit of the person to whom it is granted and, therefore, cannot be transferred. Before the insertion of this Sub-section in 1929, there was a conflict of opinion whether the right to future maintenance when it was fixed by a decree was transferable. It was held in Madras that it was, and in Calcutta that it was not. The amendment supersedes the Madras decision. The result is that the assignment of a decree for maintenance is valid if the maintenance has already become due but as to future maintenance it is not valid. Arrears of maintenance, therefore, can be assigned.

Sub-section (e): Mere right to sue

A mere right to sue, as for instance, in respect of damages for breach of contract, or for tort, cannot be transferred. The object of the prohibition is to prevent gambling in litigation. Moreover, a right to sue is personal to the party aggrieved.

Example. A contracts to buy goods from B. On due date A fails to take delivery and B sells the goods in the market at a loss of Rs.10000. B transfers the right to recover the damages to C. The transfer is invalid.

Sub-section (f): Public office

According this section, a public office cannot be transferred. The prohibition is based on the grounds of public policy. A public office is held for qualities personal to the incumbent, and obviously it would be against public interest to permit alienations of public officer.

The salary of a public officer is not transferable, although, under Section 60, C.P.C, it is attachable with certain limits. As stated by Page Wood, V. C. in Corporation of Liverpool v. Wright:

“Where the law assigns fees to an office, it is for the purpose of

upholding the dignity and performing properly the duties of

that office, and the policy of the law will not allow the officer

to bargain away those fees to the appointer or anyone else.”

If the office is not public, it would be transferable even though the discharge of its duties should be indirectly beneficial to the public. [11]

Sub-section (g): Pensions

Under this clause, stipends allowed to military and civil pensioners of Government and political pensions cannot be transferred. The term ‘pension’ means a periodical allowance or stipend granted not in respect of any right of office but on account of past services of particular merits or as compensation to dethroned princes, their families and dependants. Accordingly, a reward is not a pension. Section 60 of the Civil Procedure Code also exempts a pension from attachment in execution of a decree against the pension holder.

Sub-section (h): Nature of interest

This sub-section forbids transfer (1) in so far as such transfer would be opposed to the interests affected thereby, (2) for unlawful object or consideration, and (3) to a person legally disqualified to be a transferee.

Sub-section (i): Untransferable interests

The last sub-section of Section 6 is identical with the proviso in Sub-section (i) of Section 108 of this Act and was inserted by the Amendment Act, 1885 to obviate any doubt which might arise owing to the fact that section does not primarily apply to leases for agricultural purposes.

In general leaseholds are transferable but this sub-section makes an exception of this rule and declares certain interest immutable. Thus, under this rule, a tenant having an untransferable right of occupancy cannot alienate or assign his interests in the occupancy. Similarly, a farmer of an estate, in respect of which default has been made in paying revenue, cannot assign his interest in the holding. The same remarks apply to a lessee of an estate under the management of a Court of Wards.

A Conclusion

The Civil Procedure Code and Transfer of Property Act embody what is referred to as the backbone of civil law in India, and the notions in question, those of Transferable Property and Attachment are key concepts with regards to the functioning of the civil litigations in the country.

It is thus of crucial importance that these concepts are well understood by both lawyers and the parties concerned. This paper has attempted to bring out such distinctions as were found relevant for the present discussion, and the more important portions of such legislations have been incorporated for the purpose of a meaningful analysis of the issues at hand. The researcher is optimistic that the discussion ushered in this paper will go the distance in clarifying the murky areas of these pivotal provisions and help elucidate the position taken by the Hon’ble Court in this regard.

The researcher has tried to incorporate the difference in position in this regard between the said provisions of the Code and the Act, illustrating how though the conceptual similarity is apparent on the face of the matter, there is a great difference in terms of the meaning and content of the two statutory provisions. Also, it has been concluded that though in general, ‘all property may be transferred’, this is subject to the exceptions mentioned in Section 6(a) to (i) of the Act. Thus, one may safely assume that, due regard being given to such exceptions, expressly mentioned in the Act, transfer of all other categories of property is possible and this Act is in furtherance of the selfsame objective of arriving at the desired level of uniformity in terms of regulating property issues throughout the length and breadth of this diverse nation.

WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES

TRANSFER OF PROPERTY ACT

Property of ‘any kind’ may be transferred– Critically examine with reference to Transfer of Property Act and Code of Civil Procedure