Assignment Of Transfer Of

Property Act 1882

Topic:-
Kind of immovable properties
that are not transferable

Submitted To -Preetinder Kaur

Submitted By -Anhad
Uid-21BLL1261
Semester 3rd
Section B
Kind of immovable properties
that are not transferable

Introduction
The Transfer of Property Act, 1882 contains the specific
provisions regarding what constitutes a transfer and the
conditions attached to it. The Transfer of Property Act, 1882
is defined as an act by which a living person conveys property
in present or future to one or more other living persons or
himself and one or more other living persons, and to transfer
the property is to perform such act. The living person includes
a company whether incorporated or not or an association or
body of individuals.

Section 6 of the Transfer of Property Act, 1882 deals with

what may be transferred. It lays down the exception to the
general rule. Before moving forward, it is important to know
what the word “property” means. The word property has not
been defined in the Act but has been given a wide scope
meaning and includes all descriptions of properties. The word
property also covers both tangible materials such as
buildings, lands, etc. and intangible materials such as
copyrights, tenancy, etc. In this article, the properties
immovable in nature and are not transferable under the act
will be discussed in detail.
What is immovable property?
Section 3 of the Act defines what is an immovable property.
Though the section is not exhaustive, it lists down what all
things are immovable property which does not include
standing timber, growing crops, or grass. These three items
come under the movable property with certain exceptions. In
simple terms, immovable property is a property that cannot
be moved. Section 3(26) of the General Clauses Act defines
immovable property as it shall include land, benefits to arise
out of land, and things attached to the earth. Therefore,
immovable property is attached to earth except for standing
timber, crops, or grass.

The difference between movable and immovable property

The following are the differences between movable and
immovable property:

The movable property can be easily transferred from one

place to another without changing its capacity or quantity.
While an immovable property cannot be easily transferred
from one place to the other place and if transferred then it
loses its originality and changes in its shape or capacity or
quantity.
The movable property is the property that is not attached to
the earth and can be moved. Example- car, books, etc. but if
mango trees are cut and sold for timber then it is considered
as movable property. In the case of immovable property,
which is attached to the earth and cannot be moved.
Example: buildings, trees, etc but if mango trees are sold for
nourishment purposes and fruits then it is considered
immovable property.
The registration of the movable property is not mandatory
and optional under the Indian Registration Act, 1908. In the
case of immovable property, if there is a transformation at
any point of time whose subject value exceeds Rs. 100, the
registration is mandatory under the Indian Registration Act,
1908.
The movable property is liable to sales tax, central tax though
subject to certain restrictions under the Andhra Pradesh
General Sales Tax, 1957 and also the Central Sales Tax.
whereas the immovable property is not liable to sales tax but
stamp duty and registration fees have to be paid under the
respective acts.
In the case of movable property, the transfer is complete
when there is mere delivery with intention to transfer. It is not
the same in case of immovable property. In this, the mere
delivery with intention does not constitute a valid transfer.
The property transferred must be registered in the name of
the transferee.
Section 6 of TPA, 1882
Section 6 of the Transfer of Property Act, 1882 lays down the
exceptions to the general rule. Property and interest in
property forms as a general rule which is transferable. The
transferability of the property is based on the maxim
‘alienation rei praefertur juri accrescendi’, which means law
favours alienation to accumulation. Hence, it is stated that
any actions that are made to interfere with the power of the
owner to alienate his interest in the property are not
considered in favour of the law.

Analysis
The main aim of this article is to provide the immovable
properties which are not transferable and also to
differentiate between properties to have a clear
understanding of the concept. Section 6 of the Act states
about the properties which are immovable and not
transferable also. The detailed analysis of the exceptions are
summarised below:

Section 6(a) : Spes Succession

This section states that:
The chance of heir-apparent succeeding to an estate cannot
be transferred.
The chance of a relation obtaining a legacy on the death of
kinsman cannot be transferred.
Any mere possibility of a like nature cannot be transferred.
Example 1
A is the owner of a property, if he dies his son B will get the
property as he is the legal heir and here it can be said that B
is the heir-apparent. But this same property cannot be
transferred to B during the lifetime of A.

Example 2
Son B dies during the lifetime of his father A, if during the
lifetime of his father, he transfers the property without his
father’s consent then the transfer would be void ab initio and
is prohibited by law.

Section 6(b) : Right of re-entry

This clause states that the right to resume the possession of
the land which could be given to some other person for a
certain period. For example, lease cases. As per this, if there is
a mere right of re-right for breach of a condition, it later
cannot be transferred to anyone except the owner of the
property who is thereby affected.
Example
A grants a lease of land to B for 3 years. At the expiry of 3
years, if he transfers the right of re-right to C then this
transfer shall be invalid.

Section 6(c) : Easement

An easement means a right that the owner or the occupier of
certain land has in his possession for the beneficial enjoyment
of the said land. It can be said that the right to use or restrict
the use of the property of some other person. An easement
cannot be transferred except the dominant heritage.

Example
M, the owner of the house has the right of way over their
adjoining land with N. Hence, M cannot transfer his right
without transferring the house.

In the case of Sital v. Delanney, the court held that an

easement cannot be transferred unless the dominant
heritage right is attached to it.
Section 6(d) : Restricted interest
A person cannot transfer anything that is interest restricted in
the enjoyment to him. Restricted rights are personal and
cannot be transferred and if such transfer happens then it
would be void. The following types of interest are not
considered transferable, such are:

Service tenure;
A right of pre-emption;
Emoluments;
Religious office.
Example
The right of the priest to receive the offering. This right is his
restricted interest and he cannot transfer this to another
person who may be a doctor by profession.

Section 6(dd) : Right to future maintenance

This clause states that the right to future maintenance
whatsoever cannot be transferred in any manner. This is
because the right is solely a personal benefit given to a
person and so he cannot transfer his benefit to someone else.

Example
A woman who receives maintenance from her husband under
a decree or award or order.

In the case of Dhupnath Upadhya v. Ramacharit, it was held

that where the property is given as maintenance, then the
person cannot transfer the property during her lifetime. A
right of maintenance is a personal right and cannot be taken
away.
Section 6(e) : Right to sue
According to this clause, a mere right to sue cannot be
transferred. A right to sue cannot be transferred as the
transferee acquires no interest in the subject matter of the
suit as much as the owner of the property would.

Example
X published defamatory statements against Y and Y filed a
suit against X. But Y cannot transfer his right to Z to recover
damages for him. If Y transfers his right to Z then this transfer
will be held void.

Section 6(f) : Public Office

A public office cannot be transferred and so the salary of the
public officer, whether before or after it becomes payable. A
public officer is a person who is appointed to discharge his
duty towards the public and for doing such an Act he is paid
in the form of salary. This salary is a personal benefit to him
that cannot be transferred.

Section 6(g) : Pensions

Generally, pensions are the monetary value like a salary,
given to a person timely who ceased to be a government
employee. This pension is his benefit which he cannot transfer
just like his salary.

In Saundariya Bai v. Union of India, it was held by the court

that pension is not transferable and as long as such is in the
hands of the government.
Section 6(h) : Nature of interest
According to this section, the Transfer should not affect the
nature of the interest of anyone. For example, the public or
religious uses or services cannot be transferred. If any
transfer whose object is unlawful or has unlawful
consideration is not permissible under this section. Also if the
property is transferred to someone who is disqualified legally
to be a transferee then such transfer is not valid.

Example
X, Y, and Z entered into an agreement for the division of gains
among them which they acquired by fraud. Hence, this
agreement is void as the consideration is unlawful.

What does not constitute transfer?

Property of any kind can be transferred: exception to this rule
The general rule of the Transfer of Property Act is that any
property can be transferred whether movable or immovable.
Section 6 states that property of any kind can be transferred,
except as otherwise provided by this act or by any other act
for the time being in force. It lays down the exceptions as:

The chance of heir-apparent succeeding to an estate, the

chance of a relation of obtaining a legacy on the death of a
kinsman, or any other mere possibility of a like nature cannot
be transferred.
A mere right of re-entry for any breach of condition and
cannot be transferred to anyone except the owner of the
property who is thereby affected.
An easement cannot be transferred apart from dominant
heritage.
All interest in property restricted in its employment to the
owner personally cannot be transferred by him. Even a right
to future maintenance, in whatever manner arising, secured
or determined cannot be transferred.
A mere right to sue cannot be transferred.
A public officer cannot be transferred nor his salary, whether
before or after it becomes payable.
The stipends allowed to the military of the naval, air force,
and government and political pensions cannot be transferred.
No transfer can be made, in so far as it is opposed to the
nature of the interest thereby affected or for an unlawful
object and consideration under Section 23 of the Indian
Contract Act, 1872 or to a person legally qualified to be a
transferee.

Case laws
Sheshammal v. Hasan Khani Rawther
In this case, it was held that an heir who received an
advantage for giving up his future right to property, then the
heir could not be allowed the benefit of the doctrine of spes
succession.

C. Mohammed v. Ananthachari
In this case, the court held that there cannot be an easement
by prescription if the person admits that the property belongs
to him. The court defined easement as where an owner of the
property has the right over the way of the labs for another
purpose which is connected with the beneficial use of his own
land.

Ananthayya v. Subba Rao

In this case, it was held that if there is an agreement between
two persons who are brothers by relation, and one of them
agreed to pay a certain amount of money from his income to
his brother for his expense as he takes care of him then in
such cases the provision of a public officer would not apply.

Sethupati v. Chidambaram
In this case, the court held that in the right to sue, the word
merely means that the transferee has no interest in the
subject matter than just a bare right to sue.

Palani Goudhan v. Nallapa Goundan

In this case, the court held that if an ex-minor transfers his
property without the authority of his guardian who has sold
the property during his minority then he transfers his interest
on the property, not a mere right to sue.

Conclusion
It can be concluded that under the Transfer of Property Act,
the benefits, gains, maintenance, etc are not transferable as
these things are personal benefits that the person derives and
he cannot transfer his benefit to another person. If he does so
that transfer becomes invalid.