Lesson 16

Transfer of Property Act, 1882

INTRODUCTION

1) The law relating to transfer of property is governed by the Transfer of Property Act, 1882.
2) Before this Act came into force there was practically no law as to real property in India. Barring
few points which were covered by certain Regulations and Acts, the Courts in India in the absence
of any statutory provisions, applied rules of English law as the rule of justice, equity and good
conscience.
3) The Act Applies to
The Act was enacted with the object to amend the law relating to the transfer of property by act
of parties. The Act is applicable primarily on transfers inter vivos, [i.e., transfer between 2 living
person]
4) This Act doesn’t apply to
The Act excludes from its purview the
- transfers by operation of law, i.e. by sale in execution, forfeiture, insolvency or intestate
succession (Inheritance)
5) The Act leaves the scope for applying rules of justice, equity and good conscience if a particular
case is not covered by any of the provisions of the Act. But if it is covered, the Act must be
applied.

DEFINITIONS

1. Absolute Interest:
- When a person owns property, he has an “absolute interest” in the property.
- Ownership consists of a bundle of rights, the right to possession, right to enjoyment and right to
do anything such as selling, mortgaging or making gift of the property. If A is the owner of a land,
he has an absolute interest in the land.
- Example: If A sells his land to B, then B becomes the owner and he acquires an absolute interest
in the land he has purchased from A. Likewise if A makes a gift of his property to B, there again B
 gets an absolute interest in the property which is gifted to him. These are instances where
persons may have an absolute interest.

2. Reversion and Remainder

Reversion: A “reversion” is the residue of an original interest which is left after the grantor has
granted the lessee a small estate.
Example: A, the owner of a land may lease it to B for a period of five years. The person who grants
the lease is the lessor and the person who takes the lease is called the lessee. Here, after the
period of 5 years the lease will come to an end and the property reverts back to the lessor. The
property which reverts back to him is called the reversion or the reversionery interest.

Remainder: When the owner of the property grants a limited interest in favour of a person or
persons and gives the remaining to others, it is called a “remainder”.
Example: A the owner of a land transfers property to B for life and then to C absolutely. Here the
interest in favour of B is a limited interest, i.e., it is only for life. He has a limited right since he
cannot sell away the property. His right is only to enjoy the property. So after B’s death the
property will go to C, This is called a remainder.
Note: In the case of a “remainder”, the property will not come back to the owner, but it goes over
to the other person.

3. Vested and Contingent Interests

A. VESTED: The word “vested” is used in two different senses. It may mean “vested in possession”
or “vested in interest”. An interest is said to be vested when it is not subject to any condition,
precedent, i.e., when it is to take effect on the happening of an event which is certain.
Example: promise made to gift A on the death of B creates a vested interest in A even during the
life time of B for there is nothing more certain than death. But a gift to A on the marriage of B
creates a contingent interest, for B may never marry at all but that contingent interest becomes
vested if and when B marries.

a) Vested in possession:
• A right is said to be “vested in possession” when it is a right to present possession of property.
Example: For instance, if a land is given to A for life with a remainder to B, A’s right is vested in
possession, B’s right is vested in interest. In the above example, the interest of B is not subject to
any uncertain condition. It will come into his possession after A’s life comes to an end.
b) Vested in interest: Section 19 of the Transfer of Property Act, 1882.
• It is vested in interest when it is a present right to future possession
• A vested interest is transferable and heritable.
Example: If property is given to A for life and afterwards to B, B gets a vested interest and if B
transfers this interest to C, C will take when A dies. B’s interest, since it is vested, is also
heritable. Therefore, if B dies during the lifetime of A, C will get the property after the death of
A.

B. CONTINGENT INTEREST: Section 21 of the Transfer of Property Act, 1882.

• An estate is contingent when the right to enjoyment depends upon the happening of an event
which may or may not happen.
 • It is subject to a condition precedent, In a condition precedent the estate is not vested in the
grantee until the condition is fulfilled.
• The contingent interest is not heritable although it is transferable.
Example: Unless A marries B’s daughter, he will not get the property. The following example
will illustrate this point. Property is given to A for life and then to B if he marries C. B should
marry C before A dies. If he does so, his interest is converted into vested interest. Before B
marries C his interest is contingent.

Distinction between a vested and a contingent interest:

Vested Interest Contingent interest

An interest is said to be vested when it is not An interest is contingent when the right to
subject to any condition, precedent, i.e., enjoyment depends upon uncertain event
when it is to take effect on the happening of which may or may not happen.
an event which is certain

When an interest is vested the transfer is A contingent interest on the other hand is
complete. It creates an immediate dependant upon the fulfilment of some
proprietory interest in the property though conditions which may or may not happen.
the enjoyment may be postponed to a future
date
in case of vested interest, the owner’s title is already prefect; in case of a contingent interest,
the title is as yet imperfect but may become perfect on the fulfilment of a stipulated
condition.
A vested interest takes effect from the date A contingent interest in order to become
of transfer. vested is conditioned by a contingency which
may not occur.
Vested interest is a Transferable and A contingent interest, on the other hand,
heritable right. A transferee of the vested cannot be inherited though it may be
interest dies before actual enjoyment, it will transferred coupled with limitation regarding
devolve on his legal heir fulfilment of a condition
A vested interest cannot be defeated by the A contingent interest may fail in case of the
death of the transferee before he obtains death of transferee before the fulfilment of
possession condition.

4. Immoveable property

a) The term “immoveable property” is also not defined under the Act.
b) However, it is defined in the negative sense as “the immoveable property does not include
standing timber, growing crops, or grass”
#Meaning: Standing timber are trees fit for use for building or repairing houses

c) However, we refer to other acts to know the meaning of immoveable property. According
to General Clauses Act, 1897, “immoveable property shall include land, benefits to arise
out of land and things attached to the earth, or permanently fastened to anything attached
to the earth”
“Attached to the earth” means –
a) rooted in the earth, as in the case of trees and shrubs;
b) embedded in the earth, as in the case of walls or buildings; or
 c) attached to what is so embedded for the permanent beneficial enjoyment of that to
which it is attached
d) According to The Registration Act, 1908, immovable property includes under to
immoveable property the benefits to arise out of land, hereditary allowances, rights of
way, lights, ferries and fisheries.
e) Distinction between moveable and immoveable property

Sukry Kurdepa v. Goondakull, by Holloway J.

A piece of land in all circumstances is immoveable. If a thing cannot change its place without
injury to the quality it is immoveable. Certain things e.g. trees attached to the ground are so
long as they are so attached, immoveable when the severance has been affected, they become
moveable.
The following have been recognised as immoveable The following have been held not
property: to be immoveable property:
• Right to collect rents of immovable property • Right of worship
• A right to way • Government promissory
• A right to collect dues from fair on a piece of land notes
• The Equity of redemption • Royalty
• The interest of mortgage • A right to recover
• Hereditary offices maintenance allowance
• Right to collect lac from trees • Copyright
• A right of ferry • A decree for sale on a
• A right of fishery mortgage deed
• Right to receive future rents and profits of land • A decree for arrears of rent
• Reversion in property leased
• A factory

RULES RELATING TO TRANSFER OF PROPERTY (WHETHER MOVEABLE OR IMMOVEABLE)

1. According to Section 5 of the Transfer of Property Act, the term “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
2. “Living person/ inter vivos” includes a company or association or body of individuals whether
incorporated or not. But the general provisions of the Act as to transfer do not effect the special
provisions of the Companies Act, 1956.
3. A transfer by means of a will is not a transfer, because it is not a transfer between two living
persons.
4. Further Section 6 (h) provides that no transfer can be made in so far as it is opposed to the nature
of the interest attached thereby or for an unlawful object or consideration or to a person legally
disqualified to be a transferee.

WHO CAN TRANSFER THE PROPERTY?

• Every person competent to contract [major and of sound mind and is not disqualified] and
having ownership can transfer property or persons who are authorised to transfer property can
also transfer property validly.
• #Notable point: a minor is not competent to be a transferor, yet a transfer to a minor is valid.
That is to say, he can be a transferee.
SUBJECT MATTER OF TRANSFER – Section 6

• Act says that property of any kind may be transferred

• Property of any kind does not include future property.
• A transfer of future property can only operate as a contract which may be specifically performed
when the property comes into existence. [can be read with Doctrine of estoppel]
• Certain restrictions are placed by Hindu law and Mohammedan law on the transfer of property.

FORMALITIES OF TRANSFER

1. Procedure of Transfer
• Property can be transferred either orally or by writing
• Moveable property can be transferred by delivery of possession or by registration.
• Immovable property having value of 100 rupees and upwards can be made only by a
registered instrument
2. Signature

•
The person who signs the document agreeing to transfer the property (Transferor) is called
the executant.
• An illiterate person who cannot write may direct some literate person to sign it on his behalf
and in his presence and the illiterate person may put his thumb impression.
3. Attestation/Witness

• Meaning: It means to testify a factor, to bear witness to a fact.

• Attestation, in relation to a document, signifies the fact of authentication of the signature of
the executant of that document by the attestator by putting down his own signature on the
document in testimony(evidence) of the fact of its execution.
• All transfers do not require attestation: For example, a sale or a lease does not require
attestation. But a mortgage deed or a gift deed must be attested
• Following essentials are required for a valid attestation:
(a) Attestation is valid and complete when 2 witnesses sign the instrument.
(b) Each witness must see
- the executant’s sign or affix his mark to the instrument, or
- some other person sign the instrument in the presence and by the direction of the executant,
or
- receive from the executant a personal acknowledgement of his signature or mark or of the
signature of such other person; and
(c) Each witness must sign the instrument in the presence of the executant.

#Notable point:
1. It is not necessary that both attesting witnesses should be present at the same time.
2. Attestation cannot take place before the execution of the deed.
3. The attesting witness must have put his signature antmus attestandi, i.e., with intention
to attest. Thus, where a Registrar or an identifying witness puts his signature on the
document he cannot be regarded as an attesting witness unless it is duly proved that he
signed with the necessary intention to attest.
4. Registration –
Registration is an essential legal formality to effect a valid transfer in certain cases. The advantage
of registering a document is that any person who deals with the property would be bound by the
rights that are created in earlier registered document.
5. Notice

• Notice, may be actual or constructive.

• Actual Notice: If a person knows about a fact, he has an actual notice.
• Constructive Notice: But, in certain circumstances law treats a man who ought to have known
a fact even though he did not in fact know it. This is called constructive notice.
• A person is deemed in the eye of law to have constructive notice of a fact when
(i) willful absentation from an enquiry or search which he ought reasonably to have made; or
(ii) gross negligence on his part, he would have known it.

Example: A executes a mortgage on property X and gets it registered. Subsequently he sells

property X to B, B is bound by the right of the mortgagee over the property X. Thus, whether
B knows actually or not that there was a mortgage the fact that the earlier document was
registered is a notice to B and B takes property, subject to the rights of the mortgagee.
Therefore, if a document of transfer relating to immoveable property is required by the law to
be and has been effected by registered instrument, the persons who deal with the property
subsequently are deemed in the eye of law as having knowledge of the such registered
instrument from the date of its registration.

RESTRAINT ON TRANSFERS OR RULE AGAINST INALIENABILITY - Section 10

1. Absolute restraint is invalid

• When property is transferred, the TRANSFEREE SHOULD NOT BE RESTRAINED ABSOLUTELY

FROM ALIENATING THE PROPERTY.
• One may give property to another subject to a condition, but the condition should not be one
which absolutely prevents the transferee from alienating the property.
• EFFECT OF SUCH CONDITION: The transfer takes effect and is valid, and the CONDITION NOT TO
ALIENATE THE PROPERTY IS VOID.

Example:
• Suppose, A gives to B property worth only Rs. 2,000 rupees and adds a condition that B should
sell property for `50,000 and not below that amount, this condition will at once become invalid
for no one will buy the property which is only worth `2,000 for Rs. 50,000.
• Trichinpoly Varthaga Sangum v. Shunmoga Sunderam, there was a partition between a Hindu
father and his five sons. The deed of partition provided that if any one of the sons wanted to sell
his share, he should not sell it to a stranger but to one of his brothers who should have the option
to buy for a sum not exceeding `1,000. It was held by the Court that the condition absolutely
prevented the son from selling the property to any one for good value. In this case the market
value of the property of the son was far greater than `1,000. Hence, the condition was declared
invalid.

In Short: Following conditions are void:

1) Permanently restrained from selling the property
2) Selling the property at a specified price (Less that market price)
2. Circumstances in which absolute restraint is valid
 a) Lease: In case of lease, lessor can impose a condition that the lessee shall not sublet the
property or sell his leasehold interest
b) Woman: a woman who is not a Hindu, Buddhist or Muslim. In such a case, a condition to the
effect that she shall not have power during her marriage to transfer the property is valid.
(#Not in syllabus: It is done to avoid Coverture)
3. Partial restraint is valid –

• Though absolute restraints are bad in law, partial restraints are valid.
• If there are conditions which restrain the transferee not to alienate the property outside the
family, it has been held by the Courts that they are partial restraints.
• Example, whenever there are conditions in a family settlement whereby the members are not
allowed to sell their shares to a stranger, such conditions are valid.
But it is not permissible to restrict the alienation to a particular time. Such a restriction is not partial
but an absolute restraint and as such invalid.

RESTRAINT ON ENJOYMENT - Section 11

a) Where land is transferred by one to another, the transferor should not impose conditions as to
how and in what manner the transferee should enjoy the property.
b) Restraint on the enjoyment of the property is invalid.

Example:
A sells his house to B and adds a condition that B only should reside in that house, the condition is
invalid.

c) Exception
the condition which is imposed by seller is for the benefit of another property which he retains. Such
a condition is valid.

Example:
A has properties X and Y. He sells property Y to B and puts a condition that B should not construct on
property Y more than two storey so that A’s property X which he retains should have good light and
free air. This is Valid.

d) The transfer is void if a property is transferred adding a condition that if such person becomes
insolvent he ceases to hold that property.
Exception: Again, this is subject to the exception that if a landlord leases his property he can
impose a condition on the lessee that if the lessee becomes insolvent the lease should come to
an end.

TRANSFER FOR BENEFIT OF UNBORN PERSON - Section 13

Read section 13, 14 and 16 together.

• Where on a transfer of property, an
interest therein is created for the benefit
of a person not in existence at the date of
transfer,
• subject to a prior interest created by the
same transfer,
• the interest created for the benefit of
such person shall not take effect unless it
extends to the whole of the remaining Example:
interest of the transferor in the property. • A transfers property of which he is the owner to
• Thus if a property is given to an unborn his intended wife
person, two conditions should be • and then to their eldest son of the intended
satisfied: marriage, [If the transfer had stopped here the
1. It should be preceded by a life estate in example would have been valid]
favour of a living person • and after his death for A’s second son. The
2. It should comprise the whole of the interest so created for the benefit of the eldest
remaining interest of the transferor so son does not take effect, because it does not
that there can be no further interest in extend to the whole of A’s remaining interest in
favour of others. the property.

RULE AGAINST PERPETUITY - Section 14

• A perpetuity means, “is a condition which makes property inalienable for an indefinite period”
Rule against perpetuity
• Any number of successive estates can be created between the transferees who are living
persons
Example: A transfer may be made to A for life and then to B for life and then to C for life and so
on, provided that A, B and C are all living persons at the date of the transfer.
• But if the ultimate beneficiary is someone who is not in existence (Unborn child) at the date of
the transfer, the whole residue of the estate should be transferred to him.
• If he is born before the termination of the last prior estate, he takes a vested interest at birth
and takes possession on the termination of the last prior estate but if he is not born till the
termination of the last prior estate, the transfer to him fails.
• Further, the rule is not that vested interest is created at the birth of the beneficiary but that
vested interest cannot be delayed in any case beyond his minority [until he reaches 18].
• Therefore, the rule against perpetuity is that the minority of the ultimate beneficiary is the latest
period at which an estate can be made to vest.

Example: a transfer may be made to A for life

and then to B for life and then to C for life and so
on, provided that A, B and C are all living persons
at the date of the transfer. But if the ultimate
beneficiary unborn child, the whole residue of
the estate should be transferred to him. If he is
born before the termination of the last prior
estate, he takes a vested interest at birth and
takes possession on the termination of the last
prior estate but if he is not born till the
 termination of the last prior estate, the transfer
to him fails.

• Note: However, Section 18 provides an EXCEPTION TO THE ABOVE RULE OF PERPETUITY, where
the transfer of property is for the benefit of the public in the advancement of religion, knowledge,
commerce, health, safety, or any other object beneficial to mankind. Such transfers are valid.

Transfer to take effect on failure of prior interest - Section 16

Where, by reason of any of the rules contained in sections 13 and 14, an interest created for the
benefit of a person or of a class of persons fails in regard to such person or the whole of such class,
any interest created in the same transaction and intended to take effect after or upon failure of such
prior interest, also fails.

Example:

For example, property is transferred to A for life then to his unborn son B for life and then to C, who
is living at the date of transfer, absolutely. Here B is given only a life interest. So the transfer to B is
invalid under Section 13. The subsequent transfer to C absolutely is also invalid, because according to
Section 16, if a prior transfer fails, the subsequent transfer will also fail.

ACCUMULATION OF INCOME - Section 17

• This section, does not allow accumulation of income from the land for an unlimited period
without the income- being enjoyed by owner of the property.
• The law allows accumulation of income for a certain period only. The period for which such
accumulation is valid is :
(a) the life of the transferor, or
(b) 18 years from the date of transfer.
Any direction to accumulate the income beyond the period mentioned above is void except where it
is for:
(i) the payment of the debts of the transferor or
(ii) portions for children or any other person taking any interest in the property under the transfer,
and
(iii) for the preservation and maintenance of the property transferred.

CONDITIONAL TRANSFER
 Meaning of Conditional transfer –
a) When an interest is created on the transfer of property but is made to depend on the fulfillment
of a condition by the transferee, the transfer is known as a conditional transfer.
b) Such a transfer may be subject to a condition precedent or a condition subsequent.
Condition Precedent Condition Subsequent
The condition precedent will be allowed to 1) A transfer may also be made subject to a
operate only if it is not prohibited under contingency which may or may not occur.
provisions of Section 25 of the Act. Thus, an interest may be created with the
condition superadded that it shall cease to
a) the condition must not be impossible to fulfil. exist in case a specified uncertain event shall
b) the condition must not be forbidden by law. happen, or in case a specified uncertain event
c) it should not be of such a nature that if shall not happen.
permitted it would defeat the provisions of any 2) Condition subsequent is one which destroys
law. or divests the rights upon the happening or
d) it should not be fraudulent. non-happening of an event
e) the condition should not be such as to cause Example: if A transfers a farm to B provided that
injury to the person or property of another. B shall not go to England within 3 years after the
f) the condition should not be immoral or date of transfer, the interest in the farm shall
opposed to public policy. cease. B does not go to England within the term
prescribed. His interest in the farm ceases.
Example: Big boss winner gets property

• In condition precedent, the condition comes before the interest; whereas in condition
subsequent, the interest is created before the condition.
• The one precedes the vesting of right and the other follows the vesting. In condition precedent,
the vesting of right is delayed until the happening of an event.
• In condition subsequent, there is no postponement of vesting of right though it is to be destroyed
or divested by reason of non-fulfilment of condition.

DOCTRINE

I. DOCTRINE OF ELECTION - Section 35

• Election may be defined as “the choosing between two rights where there is a clear intention that
both were not intended to be enjoyed.
 A transfer his property worth `1,000 and by the same instrument asks B to transfer his property
worth `500 to C. Here, if B does not accept, he will not take A’s property and the property will
revert to A.
• The foundation of doctrine of election is that a person taking the benefit of an instrument must
also bear the burden.
• It is a general rule that no one may approbate (Accept) and reprobate (Reject) (Copper v. Copper
(1874) H.L. 53).
• If the transferor dies before the person upon whom the benefit is conferred and he rejects the
transfer, then the representatives of the transferor will have to satisfy the disappointed person out
of the property which was the subject of transfer
Example: A transfers his property worth `1,000 and by the same instrument asks B to transfer his
property worth `500 to C. Here, if B does not accept, he will not take A’s property and the property
will revert to A. If A is alive, it is for him to give some property to C. But if A dies before B has made
his election then the heirs of A have to compensate C from A’s property to the extent of `500.
• The question of Election arises only when a transfer is made by the same document. If the
transferor makes a gift of property by one deed and by another asks the donee to part with his
own property then there is no question of election.
Example: Arjun transfers his land to Bilal by a document. Arjun by another document transfers
Bilal’s property to Neha. In this case Bilal can retain the property given to him and refuse to transfer
his property to Neha as the two transfers do not form part of the same document.

II. TRANSFER BY OSTENSIBLE OWNER OR DOCTRINE OF HOLDING OUT - Section 41:

All the following conditions are necessary for the application of section

• The transferor is the Ostensible owner (Not true owner)

• He is so by the consent express or implied, of the real owner
• The transfer is for consideration
• The transferee has acted in good faith and taken reasonable care to ascertain that transferor
had power to transfer

Example: When a person knowingly permits other to represent himself as a partner of the firm and
does not repudiate it at the relevant time. When other represents a person as partner of a firm and
he allows the same to be happened, he cannot deny the same afterwards

III. DOCTRINE OF FEEDING THE GRANT BY ESTOPPEL - Section 43

In order to invoke this section, the transferee must prove that:

Example:
A, a Hindu, who has separated from his father B, sells to C three fields, X, Y and Z, representing that
A is authorised to transfer the same. Of these fields, Z does not belong to A, it having been retained
by B on the partition, but on B’s dying, A as heir obtains Z. C, not having rescinded the contract of
sale may require A to deliver Z to him.

IV. DOCTRINE OF FRAUDULENT TRANSFER - Section 53

• “Every transfer of immoveable property made with intent to defeat or delay the creditors of the
transferor shall be VOIDABLE at the option of any creditor so defeated or delayed.”
• Where a person transfers his property so that his creditors shall not have anything out of the
property, the transfer is called a fraudulent transfer. A debtor in order to defeat or delay the rights
of a creditor, may transfer his property to some person, who may be his relative or a friend.
• The transfer is valid so long as the creditor does not challenge it in a Court of law and gets a
declaration that the transfer is invalid.
• Once the creditor sues the debtor and says that the debtor has the intention to deceive him, the
transfer can be declared invalid by the Court.

But suppose the debtor has several creditors and he transfers his property to one of his creditors in
satisfaction of his whole debt to him. Is this also a fraudulent transfer? The answer is No.

Result:
• But the other creditors may file a petition in the Court within three months of the transfer praying
that the debtor be declared insolvent.
• If the debtor is adjudicated an insolvent, their interest will be protected and the transfer will be
declared as fraudulent preference.
• The transfer will be set aside and the property will be distributed among all the creditors.

V. DOCTRINE OF PART-PERFORMANCE - Section 53A

Followings are the essential conditions for the operation of the doctrine of part-performance
according to Section 53A.
1. There must be a contract to transfer immoveable property.
2. It must be for consideration.
3. The contract should be in writing and signed
4. The transferee should have taken the possession or, he must have continued in possession in part
performance of the contract.
5. The transferee must have fulfilled or be ready to fulfill his part of the obligation under the contract.

Example:
A contract for the sale of land has been entered into between A and B. The transferee has paid the
price entering into possession and is willing to carry out his contractual obligations. As registration has
not been effected A, the transferor, seeks to evict B from the land. Can he do so?
No, B will not be allowed to suffer simply because the formality of registration has not been through

VI. DOCTRINE OF LIS PENDENS - Section 52

• Lis means dispute, Lis pendens means a pending suit, action, petition or the like.
• Lis pendens being the legislative expression of the Maxim- “ut lite pendente nihil innovetur”
‘During litigation nothing new should be introduced’.
• It states that during the pendency of a suit in a Court of Law, property which is subject to a
litigation cannot be transferred.
• When we say that property cannot be transferred what we mean in this context is that property
may be transferred but this transfer is subject to the rights that are created by a Court’s decree.
• It does not make any difference even if the buyer did not know about it: rule would operate even
if the transferee had no notice of the pending suit or proceeding at the time of the transfer.

Example:
A and B are litigating in a Court of law over property X and during the pendency of the suit A transfers
the property X to C. The suit ends in B’s favour. Here C who obtained the property during the time of
litigation cannot claim the property. He is bound by the decree of the Court wherein B has been given
the property.

PROPERTIES WHICH CANNOT BE TRANSFERRED - Section 6

1) Chance of an heir apparent or ‘Spes Successionis’

The chance of an heir apparent succeeding to the estate of a deceased person cannot be transferred.

Illustration

• A is the owner of the property and B is his son. B is the heir of A. During the life time of his father
A, B has only a hope expectancy that he will inherit the property of his father. This type of
property which B hopes to get after the death of the father cannot be transferred, during the life
time of A.
• Suppose A, a Hindu who has separate property, dies leaving a widow W and a brother L, L’s
succession to the property is dependent upon two factors, viz., (i) his surviving the widow, W,
and (ii) W leaving the property intact. L has only a bare chance of succession to the property left
by A. This is spes successionis, and therefore, cannot be transferred (Amrit Narayana v. Gyan
Singh, (1918) 45 Cal. 690).
2) Right of re-entry
• The right which the lessor has against the lessee for breach of an express condition which
provides that on its breach the lessor may re-enter is called the right of re-entry.
• Thus, right of re-entry being a right for the personal benefit of any party cannot exist for the
benefit of a person who has no personal interest in the land

Illustration

if A leases his property to B and adds a condition that if B sub-lets the leased land, A will have the right
to re-enter, i.e., the lease will terminate if the lessee breaks the condition by subletting to a third
person.

3) Transfer of easement

An easement is a right enjoyed by the owner of land over the land of another: such as, right of way,
right of light, right of support, right to a flow of air or water.

Section 4 of the Easements Act defines an easement as a right which the owner or occupier of certain
land possesses as such for the beneficial enjoyment of the land, to do and continue to do something
or to prevent and to continue to prevent something being done in or upon or in respect of certain
other and not his own land.

Illustration

if A, the owner of a house X, has a right of way over an adjoining plot of land belonging to B, he cannot
transfer this right of way to C. But if he transfers the house itself to C, the easement is also transferred
to C.

4) Restricted interest or personal interest

An interest restricted in enjoyment to the owner personally is by its very nature not transferable unless
the restriction is void under Section 10. Examples of such restricted interest or property are the
following:

(i) The right of pre-emption given under the Mohammedan Law.

(ii) The office of a Shebait of a Temple or mohunt of a mutt or mutuwalli of a wakf.
(iii) Emoluments attached to a priestly office.
(iv) Service tenures.

5) Right to future maintenance

This again is a personal right in the property which the law says that it cannot be transferred. The right
of a Hindu widow to maintenance is a personal right which cannot be transferred. Under the law the
arrears of past maintenance can be transferred, but not the right to future maintenance.

6) Mere right to sue and actionable claim

Illustration

• A commits an assault on B, B can file a suit to obtain damages; but B cannot assign the right to C
and allow him to obtain damages.
• A is indebted to B for Rs. 2,000 and B transfers the right to recover the debt to C, the transfer is
void. A beneficial interest in specific moveable property is also an actionable claim.

7) Transfer of public office and salaries, stipends, etc.

• It is against public policy for a public officer to transfer the salary of his office, for the salary is given
for the purpose of upholding its dignity and the proper performance of its duties.
• Since these allowances, pensions and stipends are given on personal basis, the law does not allow
these types of property to be transferred.