Section 6

What may be transferred

Property of any kind may be
transferred excepting the exceptions
given in this section
 Exception to transfer
a) The chance of an heir- spes successionis:
-possibility of getting property in future
- chance of ‘an heir apparent’ succeeding to an estate,
- maxim ‘ nemo est heres viventis’ – no one is the heir of a living
person.
-chance of a relation obtaining a legacy on the death of a kinsmen-
Legacy; means expectancy of getting certain property under a will.

- Reversioner is a person who inherits the properties of a widow held

by her for life. During the life time widow that right remains suspended
and comes into operation only if he succeeds her.
-any other mere possibility of a like nature Under this clause spes
successionis is not transferable.
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 transformed by him;
e) A mere right to sue cannot be transferred;(breach of
contract, damages in torts etc)
f) A public office cannot be transferred, nor can the salary
of public officer, whether before or after it has become
payable.
• Section 6(a) and 43 – bar on transferring spes successionis as per
section 6(a) but
• section 43 – where a person fraudulently or erroneously represents
that he is authorized to transfer certain immovable properties and
later when he acquires the real right, he is bound to transfer it to
transferee
• Provided the contract is still in subsistence and has been cancelled.
• Section 4 of the Easements Act, 1882, defines an easement as ‘a
right which the owner or occupier of a certain land possess as such
for the beneficial enjoyment of that 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 land which is not his own.
g) Stipends allowed to military and civil
pensioners of the government and political
pensions cannot be transferred;
h) No transfer can be made in so far as it is
opposed to the nature of the interest affected
thereby, or for an unlawful object or to a person
legally disqualified to be transferee;
i) The tenant, lessee, mortgagee etc have no
right of transfer of the possessed property;
 General rule of transferability of
property
• Transferability is general rule and non-
transferability is an exception.
• Transferability is based on the maxim –
“alienatio rei prac factor juri accrescendi” –
alienation is favored by the law rather than
accumulation.
• “nemo dat quod non habet” – you can not
create a better title unless you have good title
 Essentials of valid transfer
1. Property must be transferable
2. Object or consideration of the transfer must
be lawful
3. Transferee competent
4. Transferor competent to transfer
5. Transfer must not be opposed to the nature
of the interest affected thereby
6. Made in Prescribed manner
 Section 7 – Persons Competent to
Transfer
• Transferor must be competent to contract, and
• Must have title to the property or authority to dispose
of transferable property, if it is not his own.
-competency to contract has been defined u/s 11 of the
contract act as, every person is competent to contract, if,
 He has attained majority;
 Who is of sound mind;
 Who is not disqualified from contracting by any law to
which he is subject;
• Transfer in favour of Minor; minor cannot
transfer but he can accept because section 7
gives only the competency of the transferor
and not transferee.
• The only condition is – transferee must be a
living person at the time of transfer, hence a
minor being a living person has all the
competency to be a transferee.
-Persons authorized to dispose of property -
kartha in the family;
A guardian appointed for that purpose only;
GPA holder;, if so authorized.
 Section - 8 - operation of Transfer
• Unless different intention is present a transfer of
property passes all the interests which the
transferor is then capable of passing in the
property and its legal incidents to the transferee
• The object of this section is to clearly define what
are the legal incidents of each particular class of
property which pass along with the property
when it is transferred;
• Maxim – res essorira sequiter rem principulur –
an accessory follows the principal thing.
• What was the intention of the transferor at the time of
executing the deed should be clearly found by
interpretation of the words of the deed.
• The cardinal rule of construction is that a document
must be read as a whole, each clause being read in
relation to the other parts of the documents and an
attempt should be made to arrive at an interpretation
which will harmonize and give effect to other clauses
thereof.
• Mohd. Shamsool v. Shewakram , 19874 PC , (will in
favour of daughter – in – law and to daughter)
(a) Land: the incidents are, essentials attached to it, its rents
and profits accruing after the transfer, all things attached
to the earth.
(b) Machinery: its movable parts will be its incidents.
(c) House: easements annexed to it, its rent, locks, keys, bars,
doors, windows and all other things provided with it for
permanent use
(d) Debt: debt or actionable claim, those securities will be
legal incidents which are only for the debt transferred to
the transferee.
(e) Money: or other property yielding money, its legal
incidents will include its income or interest accruing after
the transfer.
• Ut res magis valeat quam pereat – means that where
the document admits of two considerations – one of
which give a sensible effect to the whole and the other
makes a portion of it idle and insensible, the one which
makes it idle should be disregarded. (Bomi jal Mistry v.
Joint Charity Commissioner, Maharashtra, AIR 2002
Bom 342 –preserve temple for sacred fire and house
for priest)
• For construction of the contract, it is settled law that
the intention of the parties is to be gathered from the
words used in it.
 Section 9 – Oral Transfer
• A transfer of property may be made without
writing in every case in which a writing is not
expressly required by law.
• there are 2 modes in which a property can be
transferred – (i) Delivery of possession and
(ii) Registration.
1. Delivery of Possession: all such properties
may be transferred by delivery where writing
is not necessary for transfer.
2. registration: necessarily the transfer
must be made by writing.
The following transfers must be made only through a written
document which may be duly registered –
1. Sale of an immovable property exceeding 100/- rs. (sec 54)
2. Sale of reversion or other intangible property (sec 54)
3. Simple mortgage irrespective of the amount specified (sec 59)
4. All other mortgages securing sums exceeding rupees 100/- (sec
59)
5. Lease from year to year or for a term exceeding 1 year or
reserving a yearly rent (sec 107)
6. Exchange of immovable property exceeding 100/- (sec118)
7. Gift of an immovable property (sec 123)
8. Transfer of actionable claim (sec 130)
 II – Restrictions
• Sec 10: condition restraining alienation: absolute
restriction on the transferee to or any other
person claiming through transferee to part with
or disposing of his share absolutely is void.
• Every owner of the property who is competent to
transfer, may transfer the property either
unconditionally or with certain conditions.
• Transfers which are subject to restrictions are
called conditional transfers.
• Conditional transfers may be condition precedent
or condition subsequent.
• Restraint absolute means, totally taking away the
right of disposal, which is void u/s 10.
• Sec 10 relieves a transferee of immovable
property from an absolute restraint placed on his
right to deal with the property in his capacity as
an owner thereof.
• In order make the condition invalid the restraint
must be an absolute restraint.
• Canbank Financial Services Ltd v. Custodian
(2004) 8 SCC 355 – (purchasing of securities with
the stipulations of non-transferability)
• Achammal v. Rajamanickam Karthikeyan AIR
2010 Mad 34 - an absolute right was vested in the
adopted son in respect of properties bequeathed
to him under a will. The will contained a direction
that the property should be applied or enjoyed in
a particular manner. The court held that the
legatee can receive and use it as if no conditions
are attached.
• Bhavani Amma Kanakadevi v. CSI AIR 2008 Ker 38 – a
transfer of property for construction of a college
contained a condition that if the college was not
constructed, the property would not be alienated,
rather it would be reconveyed to the person
transferring it - held to be void.
• Kannammal v. Rajeshwari AIR 2004 Mad 8 – where the
settlor intending to create a life estate in favour of his
son-in-law ‘M’ handed over the title-deeds of the said
property to ‘M’ and imposed absolute restraint on
alienation. Held void
 Partial restraint
• Sec 10 has only provided for absolute restraints,
it is silent about the partial restraints.
• Where the restraint does not take away the
power of alienation absolutely but only restricts it
to some extent, it is a partial restraint, e.g. you
may restrict alienation by prohibiting it to a
particular class of individuals or you may restrict
alienation by restricting it to a particular time etc.
• A total restraint on alienation is void but a partial
restraint would be valid and binding. This is based
on sound public policy of free circulation.
 Exceptions
This section contains 2 exceptions -
1. Lease: conditional transfer is valid in the case of lease
where the condition is for the benefit of the lessor or
those claiming under him.
- Lease is transfer of limited ownership where the lessor
reserves the ownership and transfers only the right of
enjoyment
2. Married women: property may be transferred in favour of a
women not being Hindu, Mohammedan or Buddhist,
imposing a condition restraining alienation and such condition
shall not be void.
- The Married Women Property Act 1874 contains the similar
provision.
Section 11 – restrictions repugnant to
interest created
• Where, on a transfer of property, an interest
therein is created absolutely in favour of any
person, but the terms of the transfer direct that
such interest shall be applied or enjoyed by him
in a particular manner, he shall be entitled to
receive and dispose of such interest as if there
were no such directions.
• That means restrictions on the absolute
enjoyment of the property can be considered
void.
• Creating a will in favour of two brothers and
imposing the condition that the property shall
not be partitioned is a condition repugnant to
enjoyment of the property, hence void.
• This section is not applicable where only partial
interest is transferred.
• Where only a life interest is created to maintain
the farm house and to cut the trees in the farm it
held as a valid condition because there is no
absolute transfer.
 Exception
• This section contains one exception in which a
restriction repugnant to interest may be created.
• Where a direction is made restraining the mode of
enjoyment only for the beneficial enjoyment of
property of transferor, such a direction shall be valid.
• Two conditions are necessary for this exception – the
direction must be given by the transferor and such a
direction must be made in respect of one piece of
immovable property for the purpose of securing the
beneficial enjoyment of another piece of such property
belonging to the transferor.
• The conditions restraining the mode of
enjoyment may be affirmative or negative.
Where the conditions imposed are
affirmative, the transferee is bound to do
certain things,
• Where conditions are negative, the transferee
is bound not to do certain acts.
• Transfer of absolute interest means transfer of
ownership. Ownership bring all the incidents of
ownership to the transferee.
• This section comes into play when two conditions
are satisfied, an absolute interest is created by
the transfer in favour of the transferee and the
terms of the transfer provide that the interest in
the property shall be applied or enjoyed in the
manner prescribed by the transferor.
• In Tulk v. Maxhay, it was held that the transferor
may impose conditions restraining the enjoyment
of land if such restrictions are for the benefit of
adjoining land of the transferor.
• Subal Chandra Matty v. Usha Banarjee AIRF
2009Cal 210 – where the donor gifted the entire
building in favour of her daughter for life and
thereafter to her sons absolutely. In the same
deed conferred a conditional right over her son to
enjoy a portion of the property of the building.
Held valid transfer.