From, what is transfer of property to, what may be transferred (Chapter 5 and 6), Transfer of Property Act, 1882

SECTION 5- TRANSFER OF PROPERTY

In the following sections “transfer of property” means an act by which a living person conveys property, by which a living person conveys property, in present or in future to one or more other living persons, or a himself and one or more other living persons, and “to transfer property” is to perform such act.

When we analyze the above definition-there are few things which comes up regarding transfer of property, which are-

• Transfer is an ACT- Giving and taking of rights.
• Such act must be BETWEEN- Living person (doctrine of Inter vivos):
  • To one or more other living persons or
  • To himself and one or more other living persons.

( here person includes, living or natural person and artificial person)

• CONVEY in – present or future.

MODES OF TRANSFER:

• SALE (immovable property)- Transfer of complete rights along with consideration.
• MORTGAGE- Limited rights transfer, of 6 kinds:
  • Possession,
  • Enjoyment,
  • Subject to condition,
  • Equitable,
  • Symbolic,
  • Constructive.
• GIFT- No consideration.
• ACTIONABLE CLAIM- Unsecured debt.
• LEASE- Time force to receive rent.

Generally, not a transfer-

• Family settlement
• Compromise
• Partition
• Surrender
• Relinquishment
• Charge

SECTION 6- WHAT MAY BE TRANSFERRED

General Rule: Every kind of property can be transferred, EXCEPT the following transfers:

• Chance of heir apparent (Spec Successionis)
• Right of re-entry
• Transfer of easement
• Restricted interest or personal interest right to future maintenance
• Mere right to sue
• Right to public office
• Right to stipends and political pension
• Occupancy right

I.CHANCE OF HEIR APPARENT (Spec Successionis):

• The technical expression for the chance of an heir apparent succeeding to an estate is called “spec successionis” which means a chance of succession.
• This means an interest which has not arisen in future. It is an anticipation or hope of succeeding to an estate of a deceased person. Such a chance is not property and as such cannot be transferred, if it is transferred, the transfer is wholly void.
• Example- A is the owner of the property and B is his son. B is the heir of A. Eventually, B hopes to get after the death of the father cannot be transferred, during the life time of A.

II.RIGHT OF RE-ENTRY:

• This is right which the lessor has against the lessee for breach of an express condition of the lease which provides that on its breach the lessor may re-enter.
• It is a personal benefit which cannot be transferred.
• Example- If A leases his property to B with a condition that if he sublets the leased land, A will have the right to re-enter. i.e. the lease will terminate. This right to re-enter is personal benefit available to A, which cannot be transferred.

III.TRANSFER OF EASEMENT:

• Easement means an interest inland owned by another its holder to a specified limited use or enjoyment.
• An easement cannot be transferred.
• Example- 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 A transfers the house itself the house itself to C, the easement is also transferred to C.

IV.RESTRICTED INTEREST OR PERSONAL INTEREST:

• The case which fall under this head include following-
  • The right of pujari in a temple to receive offerings.
  • The office of a mohunt of mutt.
• Certain rights enjoyment of which is reserved for certain person. If it is so, it is known as restricted interest. Restricted interest cannot be transferred to another person. It includes ‘religious office’.
• Example-
  • The right of PUJARI in a temple to receive offering.
  • The right of WIDOW under Hindu Law to residence.

V.RIGHT TO FUTURE MAINTENANCE:

• A right to future maintenance is solely for the personal benefit of the person to whom it is granted, and it cannot be transferred.
• However, arrears of past maintenance can be transferred.
• Example- The right of a Hindu widow to maintenance is a personal right which cannot be transferred.

VI.MERE RIGHT TO SUE:

• Mere right to sue cannot be transferred, as this prohibition is based on the ground of public policy.
• Object of this prohibition is to prevent trafficking in litigation.
• This right refers to right to damages arising both out of contracts as well as torts.
• Example- A commits an assault on B. B can file a suit to obtain damages, but he cannot assign the right to C and allow him to obtain damages.

VII.RIGHT TO PUBLIC OFFICE:

It is against the public policy to transfer public offices, salary and pension. Pension and salary given on personal basis, it cannot be transferred.

VIII.RIGHT TO STIPENDS AND POLITICAL PENSION:

Stipends allowed to military and naval, air force and civil pensions of the government and political pensions.

IX.OCCUPANCY RIGHTS:
Transfer of occupancy of a tenant prohibited. Example- Tenant cannot transfer his right of tenancy cannot transfer his right of tenancy and farmer cannot transfer his right to land if he himself is a leasee.