The general rule under S.6 of the Transfer of Property Act, 1882 is that property of any kind may be transferred. This is the statutory embodiment of the principle of free alienability. However, S.6 itself carves out specific exceptions categories of property or interests that CANNOT be transferred.
Why: The law favours free alienability because it promotes commerce, prevents property from becoming dead capital, and allows efficient allocation of resources. But certain interests are inherently personal, contrary to public policy, or destructive of the very right itself if transferred these are restrained.
Legal Framework
| Provision | Subject |
|---|---|
| S.6 (opening) | General rule: property of any kind may be transferred |
| S.6(a) | Chance of an heir-apparent; spes successionis |
| S.6(b) | Right of re-entry |
| S.6(c) | Easement apart from dominant heritage |
| S.6(d) | Restricted interest (personal right) |
| S.6(dd) | Right to future maintenance |
| S.6(e) | Mere right to sue |
| S.6(f) | Public office |
| S.6(g) | Stipend for military/naval/air force/civil pensioners |
| S.6(h) | Transfer opposed to nature of interest, or for unlawful object/consideration |
| S.6(i) | Tenant having untransferable right of occupancy |
The General Rule
S.6 opens with: "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."
Two conditions for valid transfer:
- Property must not fall within S.6 exceptions
- Transfer must not be prohibited by any other statute
Why: The presumption is transferability. The burden of proving non-transferability lies on the person asserting the restriction. If a category is not listed in S.6 or any other statute, the property is freely transferable.
Non-Transferable Property (S.6 Exceptions)
| Clause | Interest | Rationale |
|---|---|---|
| S.6(a) | Spes successionis (chance of an heir) | No present right exists; mere expectation is not property |
| S.6(b) | Right of re-entry | Personal security right; cannot be trafficked independently |
| S.6(c) | Easement apart from dominant heritage | Easement is appurtenant to land; cannot exist independently |
| S.6(d) | Interest restricted in enjoyment to owner personally | Defeats the restriction to allow transfer |
| S.6(dd) | Right to future maintenance | Personal sustenance right; transfer would defeat its purpose |
| S.6(e) | Mere right to sue | Cannot traffic in litigation (maintenance/champerty) |
| S.6(f) | Public office or salary of public officer | Public trust; office is not personal property |
| S.6(g) | Stipend of military/naval/air/civil pensioner | Personal sustenance; state welfare benefit |
| S.6(h) | Transfer opposed to nature of interest OR for unlawful object/consideration (S.23 ICA) | General residuary prohibition |
| S.6(i) | Occupancy right declared untransferable by statute | Statutory prohibition (tenancy protection legislation) |
Detailed Analysis of Key Exceptions
S.6(a): Spes Successionis
A person cannot transfer 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.
Why: These are not existing rights but mere hopes or expectations. There is no "property" to transfer. The ancestor is still alive; the heir has no vested interest yet. Until death occurs, no right crystallises. Allowing such transfer would encourage speculation on human mortality.
What IS spes successionis:
- Son selling his "share in father's property" while father is alive (Hindu joint family excepted coparcenary interest IS transferable)
- Nephew selling his "right to inherit from uncle" while uncle lives
- Legatee selling his "right under the will" while testator is alive (will is revocable until death)
What is NOT spes successionis (and IS transferable):
- Hindu coparcenary interest (present right by birth under Mitakshara; transferable under S.6, Hindu Succession Act)
- Vested remainder (present right, future enjoyment see PROP-1.5)
- Reversionary interest (present right to revert after life estate ends)
S.6(dd): Right to Future Maintenance
A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.
Why: Maintenance is for personal sustenance of the dependant. If transferable, a desperate dependant could sell the right for immediate cash (at a fraction of its value) and be left destitute. The law paternalistically prevents this.
Note: Arrears of maintenance (already accrued and due) CAN be transferred. The prohibition is on future maintenance, not past dues.
S.6(e): Mere Right to Sue
A mere right to sue cannot be transferred. This prevents maintenance (financially supporting another's litigation for a share of proceeds) and champerty (bargaining for a share of litigation proceeds).
Why: Allowing trade in litigation rights would encourage professional litigants, multiply litigation, and turn courts into speculative markets. The law distinguishes between transferring property (which incidentally carries a right to sue for its protection) and transferring a bare right to sue (with nothing else).
Distinction: Transfer of property that carries with it a right to sue is VALID. Only a naked right to sue, severed from any property interest, is non-transferable.
S.6(h): Residuary Prohibition
A transfer is void if:
- Opposed to the nature of the interest (e.g., transfer of a life estate in perpetuity), OR
- For an unlawful object or consideration (applying S.23, Indian Contract Act: opposed to public policy, immoral, or illegal)
Illustrations
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Spes successionis (invalid transfer): Ravi's father Suresh owns a house in Hyderabad worth Rs. 1 crore. Suresh is alive and healthy. Ravi borrows Rs. 20 lakhs from a moneylender and executes a "sale deed" transferring "my future share in my father's house" as security. This transfer is VOID under S.6(a). Ravi has no present right in the house. His father could sell the house tomorrow, gift it to charity, or live another 40 years. Ravi transferred a spes successionis a mere hope.
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Coparcenary interest (valid NOT spes successionis): Same family, but Suresh and Ravi hold the house as a Hindu Undivided Family (Mitakshara joint family). Ravi has a coparcenary interest by birth. This is a PRESENT RIGHT, not a future hope. Ravi can transfer his undivided share even during Suresh's lifetime. S.6(a) does not apply because coparcenary interest is not a "mere possibility."
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Right to sue (invalid vs. valid): Prakash's tenant damages the rented property and vacates. Prakash has a right to sue for damages (Rs. 5 lakhs). Prakash sells only the "right to sue for Rs. 5 lakhs" to Vikram for Rs. 2 lakhs. This is a mere right to sue void under S.6(e). BUT: if Prakash sells the entire property to Vikram AND assigns the right to sue for pre-existing damage along with the property, the transfer is valid. The right to sue travels with the property interest.
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Future maintenance (invalid) vs. arrears (valid): Anita is entitled to maintenance of Rs. 15,000/month from her ex-husband under a court decree. She sells her "right to receive maintenance for the next 10 years" to a financier for Rs. 10 lakhs lump sum. This is VOID under S.6(dd) future maintenance cannot be transferred. However, if Anita's ex-husband has not paid maintenance for 6 months (arrears = Rs. 90,000), Anita can assign the right to recover these ARREARS to a third party. Past-due amounts are a debt, not future maintenance.
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Unlawful object (S.6(h)): Deepak transfers his flat to Priya "in consideration of Priya providing false testimony in Deepak's pending criminal case." The consideration is unlawful (S.23 ICA: opposed to public policy, immoral). Transfer void under S.6(h).
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Pension (non-transferable): Retired Colonel Sharma assigns his military pension of Rs. 80,000/month to a bank as security for a car loan. The bank cannot enforce this assignment. Military pensions are non-transferable under S.6(g). The bank's remedy is limited to personal assets, not the pension stream.
Recall Check
- What is the general rule regarding transferability of property under S.6?
- What is "spes successionis" and why is it non-transferable?
- Distinguish between "mere right to sue" (non-transferable) and "right to sue accompanying property transfer" (valid).
Key Cases
Anthony v. KC Ittoop (2000) Anthony-v-KC-Ittoop-2000 Issue: Whether a mere right to sue for damages can be transferred independently of the property to which it relates. Rule: S.6(e) prohibits transfer of a mere right to sue. But where property is transferred and the right to sue is incidental to the property interest, the right to sue passes with the property. Held: A bare right to sue, divorced from any interest in property, is non-transferable. However, assignment of property carries with it all incidental rights, including pending claims for damages caused to that property.
Narayana Swami v. Pandiyan (1923) Narayana-Swami-v-Pandiyan-1923 Issue: Whether a Hindu reversioner's right to challenge an alienation made by a widow (expectant interest during widow's lifetime) is a spes successionis under S.6(a). Rule: A reversioner has a present right (vested remainder) which is more than a mere expectation. It is not spes successionis. Held: The interest of a Hindu reversioner is not a spes successionis but a present vested right capable of transfer. The reversioner's right to challenge improper alienation is incidental to this present right.
Distinctions
| Aspect | Transferable Property (S.6 general rule) | Non-Transferable Property (S.6 exceptions) |
|---|---|---|
| Nature of right | Present, vested, crystallised right | Expectation, personal right, or public trust |
| Presumption | Transferable unless proved otherwise | Must fall within enumerated exception |
| Burden of proof | On person asserting non-transferability | Exception must be specifically identified |
| Examples | Land, buildings, shares, coparcenary interest, reversionary interest | Spes successionis, maintenance, right to sue, pension, public office |
| Effect of purported transfer | Valid; passes title | Void; no title passes |
| Who benefits from restriction | Public interest / the right-holder themselves | Prevents exploitation, speculation, trafficking |
| Aspect | Spes Successionis (S.6(a)) | Vested Remainder |
|---|---|---|
| Nature | Mere hope/expectation | Present right, future enjoyment |
| Defeasibility | May never materialise | Cannot be defeated (unless conditional) |
| Transferability | Non-transferable | Freely transferable |
| Example | Son's hope of inheriting from living father | Remainderman's right after life tenant dies |
| When right arises | Only upon death + survivorship | At the time of creation of the grant |
| Depends on | Ancestor dying first + not alienating | Nothing (already vested) |
Flashcards
Q: What is the general rule under S.6 of the TPA regarding transfer of property? A: Property of any kind may be transferred, except as otherwise provided by the Act or any other law.
Q: What is "spes successionis" under S.6(a)? A: The chance of an heir-apparent succeeding to an estate; a mere expectation of inheritance. Not a present right. Non-transferable.
Q: Can arrears of maintenance be transferred? A: Yes. Only the right to FUTURE maintenance is non-transferable (S.6(dd)). Arrears (past-due amounts) are a debt and can be assigned.
Q: What is the distinction between a "mere right to sue" (S.6(e)) and a right to sue that accompanies property? A: A bare/naked right to sue (with no underlying property interest) is non-transferable. But when property is transferred, all incidental rights to sue for damage to that property pass with it (Anthony v. KC Ittoop, 2000).
Q: Is a Hindu coparcenary interest a spes successionis? A: No. It is a present right by birth (Mitakshara law) and is freely transferable. S.6(a) does not apply to it.
Q: What is the residuary prohibition under S.6(h)? A: A transfer opposed to the nature of the interest OR for an unlawful object/consideration (S.23 ICA) is void.
Q: Why are military/civil pensions non-transferable? A: S.6(g): pensions are personal sustenance benefits from the State. Allowing transfer would defeat their welfare purpose and expose pensioners to exploitation.
Q: Who bears the burden of proving that property is non-transferable? A: The person asserting non-transferability. The presumption under S.6 is that all property is transferable.
Q: Define "transfer of property" under S.5, TPA. A: 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.
Q: Does "living person" in S.5 include a company? A: Yes. "Living person" includes a company, association, or body of individuals, whether incorporated or not.
Q: What is the general rule under S.6 regarding transferability? A: Property of every kind is transferable unless expressly restricted by S.6(a)-(i).
Q: Is a right to future maintenance transferable? A: No. S.6(a)(2) prohibits transfer of a mere right to future maintenance.
Q: What does S.10 provide about conditions restraining alienation? A: A condition absolutely restraining alienation is void; exceptions for leases and life interests.
Q: What is the minimum competence required for a transferor under S.7? A: Must be competent to contract (major, sound mind, not disqualified by law) and authorized to dispose of the property.
Q: Can immovable property worth Rs.50 be transferred orally? A: Yes. S.9 permits oral transfer of immovable property valued below Rs.100.
Exam Scenario
X's father Y owns agricultural land worth Rs. 50 lakhs. Y is alive. X borrows Rs. 10 lakhs from Z and executes an agreement: "I hereby transfer my share in my father's agricultural land to Z as security for the loan." Y subsequently dies, and X inherits the land. Z claims the land based on the agreement. Advise.
Approach: (1) At the time of the agreement, Y was alive. X had no present right in Y's land only a hope of inheritance. (2) Under S.6(a), the chance of an heir-apparent succeeding to an estate cannot be transferred. X's agreement transferred a spes successionis. (3) The transfer is VOID ab initio. (4) Z cannot claim the land even after Y's death and X's inheritance. The void transfer does not become valid merely because the contingency (Y's death) later materialises. (5) Z's remedy: pursue X for repayment of the Rs. 10 lakh loan as an ordinary money suit. The security agreement over the land is unenforceable. (6) Contrast: if X and Y were members of a Hindu Undivided Family (Mitakshara coparcenary), X's interest would be a PRESENT right by birth transferable even during Y's lifetime. S.6(a) would not apply, and Z could claim.
Problem: Mohan gifts his ancestral house to his son Suresh with a condition: "Suresh shall never sell, mortgage, or lease this property to anyone. If he attempts to do so, the house shall revert to Mohan's brother Ramesh." Suresh mortgages the house to a bank five years later. Mohan's brother Ramesh files a suit claiming the house reverted to him. Advise Ramesh.
Illustrations (from consolidated notes)
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Absolute restraint (void): A transfers his house to B with a condition "B shall never sell, mortgage, or alienate this house." The condition is void. B gets the house free of the restraint and can transfer it to anyone.
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Partial restraint (valid): A transfers a farm to B with a condition "B shall not sell this farm to anyone outside the family for 10 years." This is a partial restraint (limited in time and scope) and may be valid.
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Lease restriction (valid): A leases a flat to B with a condition "B shall not sublet." This restraint is valid because S.10 exception permits restraint on alienation in leases.
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Pension non-transferability: Ramesh, a retired government servant, tries to mortgage his pension to a moneylender. The transfer is void under S.6(f) because pensions are non-transferable property.