Author Name:   Rukhman Singh

In the Transfer of Property is defined in section 5 of the Transfer of Property Act 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

Properties and Rights which cannot be transferable under the Transfer of Property Act, 1882

In the Transfer of Property is defined in section 5 of the Transfer of Property Act 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.

Section 6 in the Transfer of Property Act, 1882 states 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,-

(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

(b)A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby

(c) An easement cannot be transferred apart from the dominant heritage

(d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him; 1( A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred)

(e) A mere right to sue 2 cannot be transferred

(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable

(g) Stipends allowed to military 3[naval], 4[air-force] and civil pensioners of the 5[Government] and political pensions cannot be transferred

(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) 6[for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872)], or (3) to a person legally disqualified to be transferee; 7 [Nothing in this section shall be deemed to authorize a tenant having an transferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.]

The General rule related to Transfer of Property is that property of any kind may be transferred and this property can be movable or immovable. Property of any kind can be transferred from one party to another.

Analysis
Lets further look into the exceptions for transferring the property.

Chance of an heir apparent or Spes Succession
If there is an immovable property, which Mr. A is going to get, then Mr. A has a chance of being legal heir. If Mr. A assumes that he is the owner of the property and transfers the property to Mr. B, that transfer will be considered to be invalid. Mr. A cannot transfer the property unless he gains the ownership of the property and the property belongs to Mr. A.

A mere right of re-entry for a breach of a condition subsequent
Mr. A and Mr. B have a contract in which Mr. A gives his agricultural land on a lease to Mr. B for 10 years. There is a land on the tree and Mr. A has asked Mr. B that if he cuts the tree that is there on the land, Mr. A will have a re-entry. Mr. A has now put a condition on Mr. B after the transfer of property and that is why it is known as condition subsequent. Mr. A has the right of re-entry and this right cannot be transferred. Right of re-entry cannot be transferred.

An Easement
An easement cannot be transferred. Easement is the enjoyment that the owner of the property holds with his property. Easement cannot be transferred. Once the property is transferred, easement is by default transferred too.

Future Maintenance
A and B are related. Court orders that A will pay maintenance expenses for B. The future maintenance of this right cannot be transferred.

Right to sue
Mr. A has committed a wrong against Mr. B and Mr. B can sue Mr. A in court. Mr. B has the right to sue. If Mr. B wants to transfer this right to Mr. C, that is not possible. Right to sue cannot be transferred.

Public Office
If you hold a public office such as judge, inspector, doctor, etc, then you cannot transfer your public office to anyone.

Stipends
Stipends related to Military, Naval, Air Forces, Civil Prisoners, government pensions, etc are personal rights and cannot be transferred.

General rule of Transfer of Property is that property of any kind can be transferred from one person to another. Exceptions can be classified into exceptions mentioned under section 6 of Transfer of Property Act and exceptions mentioned in other laws.

It is open to the donor to transfer by gift title and ownership in the property and at the same time reserves its possession and enjoyment to herself during her lifetime. There is no prohibition in law that ownership in a property cannot be gifted without its possession and right of enjoyment.

Case Laws
K.Balakrishnan v K.Kamalam (2004) [with respect to section 6 of Transfer of Property Act]
The only substantial question of law involved in this appeal is whether the appellant, who was minor on the date of execution of the gift-deed dated 24.9.1945, can be held to have legally accepted the property in suit gifted to him and the said gift-deed was irrevocable. The appellant shall hereinafter be described as 'the donee' and his deceased mother as the 'doner.'

On 24.9.1945, mother Devyani-donor executed a registered gift-deed of 1/8th share of the property inherited by her from her maternal grandfather in favour of her minor son aged 16 years being the present appellant (donee) and her daughter Kamalam (respondent No.1 herein) who was aged four years. The 1/8th share of the property gifted is described in the schedule of gift-deed i.e. one acre and 25 cents of property in Survey No.7481 & 7482 with school building in Mayyanad Cherry in the State of Kerala. Under the terms of the gift-deed ownership of the property, half and half, to each of the two donees was transferred but the donor retained during her life time the management of the school and the income from the property.

The High Court in the impugned judgment took a contrary view and confirming the trial court judgment dismissed the suit of the donee holding inter alia that the terms of the gift-deed do not indicate that any property was transferred thereunder. The High Court held that when the donor reserved to herself the right to sign the papers with respect to management of the school and right to take usufruct from the property where the school is situated, there arose no question of passing over ownership of the property to the donees, which the donees could accept.

The High Court further went on to hold that the entire right in the property gifted was reserved by the donor to herself and therefore even when the father had handed over the documents to the plaintiff there arose no question of any acceptance of gift made in respect of the school property. The High Court further held that the same legal position is in respect of property gifted to the minor daughter and no question of acceptance of gift arose in respect of that part of the property as well.

Bharat Petroleum Corporation v P.Kesavan (2004) [with respect to section 5 of Transfer of Property Act]
A deed of lease was executed on or about 22.11.1967 by one Smt. Angammal wife of Shri Angappa Chettiar in favour of Burmah Shell Oil Storage & Distributing Company Limited (Burmah Shell) in respect of 23 acres and 16 cents of property/land situated in the town of Bhavani for a period of twenty years on a quarterly rent of Rs.300/- for the purpose of "erecting an installation and/or one or more pumps service/ filling stations together with overhead/underground tanks and other fittings for storage of petroleum products and such other facilities and buildings as the lessee may require and for carrying business is such products through such facilities and other kindered motor accessories or any other trade or business that can conveniently be carried on in the demised premises". The original lessor allegedly executed a will bequeathing the said site to her grandson Meenashisundaram, who expired on 3.11.1971 whereafter rent used to be paid to the guardian and mother of the said Meenashisundaram, Smt. G. Chellammal.

The appellant herein claimed itself to be a tenant in respect of the said premise relying on or on the basis of the provisions of the said Act. It is not in dispute that the lessor by a notice dated 4.2.1987 purported to terminate the tenancy calling upon the appellant herein to quit and deliver the peaceful and vacant possession as per terms of the lease dead. In reply to the said notice , the appellant herein in terms of letter dated 26.2.1987 addressed to its advocate invoked the provisions of Sections 5(2) and 7(3) of the Act stating that it had no intention to vacate the site on the expiry of the existing lease on 30.6.1987 and wish to continue occupying the same for a period of twenty years from 1.7.1987 by paying the existing rental of Rs.500/- per quarter. By reason of letter dated 19.5.1987, the appellant herein exercised its option to renew the lease for a further period of twenty years commencing from 1.7.1989 on the same terms and conditions on which the Burmah Shell held the lease immediately prior to the appointed day.

It was requested :
"May we therefore request you to let us know when it will be convenient for you to have the lease registered on terms similar to those existing in the current lease. On receipt of your advice in this matter, we shall take further action."

Despite the said letter, the tenancy was purported to have been terminated and as the appellant did not quit and deliver possession unto the lessor on expiry of the said period of lease, a suit was filed in the Court of the District Munsif, Bhawani. It appears that the appellant herein had also filed a suit for specific performance of contract which was not pressed.
The learned Munsif decreed the suit holding, inter alia, that although in terms of Section 5 of the Act, the lease may be renewed for the same period but as perSection 107of the Transfer of Property Act, necessary documents had to be executed by the company. An appeal there against by the appellant herein was dismissed by the District Judge, Erode. The appellant herein filed a second appeal before the High Court of Madras which was also dismissed stating
:
"It is clear that the suit filed for renewal of the lease was only subsequent to expiry of the lease and as such it cannot be said that the affidavit he has taken steps for the renewal of the lease, especially when he kept quiet for nearly 3 years without taking any steps, in spite of the filing of the suit by the appellant. It cannot be said that the filing of the suit can be construed as step being taken for the renewal. When the suit for recovery of possession is pending, as soon as filing of suit for renewal of the lease, the appellant ought to have taken steps for joint trial. He has allowed two suits to be proceeded with, independently. That means, he wanted to take a chance before both the courts below. This conduct of the appellant cannot be appreciated. Hence, I do not find any error in the findings of the Courts below that the appellant has not taken any steps to get the lease renewed prior to the expiry of the lease. Hence, the second appeal is dismissed.


End-Notes
# The Transfer of Property Act, 1882 Bare Act
# Indian Kanoon, indiankanoon.org
# Indian Kanoon, indiankanoon.org

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