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Report No. 70

Chapter 12

Property Which Cannot be Transferred

Section 6

12.1. Section 6-Introductory.-

Several items which cannot be transferred have been enumerated in section 6, after laying down the abstract general proposition that property of any kind may be transferred, except as otherwise provided by the Act or by any other law for the time being in force. Transferability is, then, the general rule, and the right to property includes the right to transfer that property to another person.1-2 We need not concern ourselves with restrictions on the transfer of property which arise by reason of-

(a) Hindu law;

(b) Muslim law;

(c) Special or local laws;

(d) Custom.

1. Mulla.

2. Lala Baidnath v. Chandrapaul, AIR 1924 All 793.

12.2. Rationale.-

Concentrating on those prohibitions which are expressly provided in section 6, one may note that these prohibitions owe their rationale either to the nature of the property, or to certain considerations of policy, or to the need for enforcing the provisions of other legislative enactments. Sometimes, more than one of those considerations operate together. The prohibition in clause (d) against the transfer of an interest in property restricted in its enjoyment to the owner personally is based on the nature of the interest. The prohibition in clause (c) relating to the transfer of an easement apart from the dominant heritage, i§ also similarly explained, namely, by reason of the nature of the right.

The prohibition in clause (f) relating to the transfer of a public office or the salary of a public officer is obviously based on considerations of public policy easily apparent, and the prohibitions in clauses (dd) and (g) are also based on similar considerations. Clause (h), in sub-clause (2) and sub-clause (3), is intended to re-inforce prohibitions flowing from other statutory provisions. Clauses (h) and (i) are based on mixed considerations.

12.3. Section 6(a).-

Under section 6(a), "the chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of kinsman or any other mere possibility of a like nature" cannot be transferred.

The words "of a like nature" in this clause should of course, be construed, as ejusdem generis with the two kinds of "chance" mentioned in the clause.1 However, that does not lead to a very precise position. For example, does it mean that only a possibility dependent on death is excluded? Reported2-3 cases do not take such a very narrow view.

1. AIR 1919 Mad 718.

2. AIR 1938 Mad 881.

3. ILR 43 Cal 28.

12.4. Meaning of "chance".-

What is meant by these "chances" or "possibilities"? Lord Westbury referred, in Davis v. Angel, (1862) 4 De GF&J 524 8 Jur (n.s.) 1024: 6 LT 880: 10 WR 722, to the distinction between an interest that has arisen and is represented, and an interest that has not arisen and that never may arise, but with regard to which there is a remote possibility that the event which has not occurred and upon which it is made to hand may hereafter occur. The latter is not an interest; it is not a right; it is nothing more than a bare expectation of a future right. The expectation of a future interest, or rather, of a future event which may give an interest, is not a thing which would justify a court of equity in "entertaining a suit at the instance of a party having that and nothing more."

12.5. Comparison with Code of Civil Procedure.-

Thus, a bare expectation of a future right is contrasted with an interest. It would be of interest to compare and contrast the language of the corresponding provision1 in be Code of Civil Procedure-section (60)m. What is excluded from liability to attachment under the Code is "an expectancy of succession by survivorship or other merely contingent or possible right or interest". The earlier half of this clause in the Code is better expressed than section 6(a) of the Transfer of Property Act. The latter half is wider than section 6(a)-an aspect to which we shall revert later.

1. Section 60(m), Code of Civil Procedure, 1908.

12.6. Muslim law.-

There is a corresponding rule in Muslim law. Sir Roland Wilson, in his 'Anglo Mohammedan Law"1 states the position thus:

"For the sake of those readers who are familiar with joint ownership of father and son according to the most widely prevalent school of Hindu Law, it is perhaps desirable "to state explicitly that in Mohammedan, as in Roman and English Law, nemo est hexes viventis a living person has no heir. An heir apparent or presumptive has no such reversionary interest as would enable him to object to any sale or gift made by the owner in possession; see Abdul Wahid, (1885) 12 Ind App 91 (PC) and 1885 ILR 11 Cal 597 which was followed in Hasan Ali, 1889 ILR 11 All 456.

The converse is also true; a renunciation by an expectant heir in the lifetime of his ancestor is not valid, or enforceable against him after the vesting of the inheritance."

There is, however, no prohibition as such in Muslim law against a renunciation for consideration of the claim to succeed. Such renunciation may at least operate as an estoppel.

1. Wilson Anglo Mohammedan Law, p. 280, para. 208, cited in Gulam Abbas v. Hafis Kayvam Ali, AIR 1973 SC 556 (554) (para. 7).

12.7. Possibility coupled with interest.-

Reverting to section 6(a), we should note that a mere possibility must be distinguished from a possibility coupled with interest. A contingent interest1 can be transferred,2-3 though it cannot be attached.

This position has come to be established after considerable litigation in the Courts. The principal section of the Act relating to contingent interests is section 19. A contingent interest depends on the happening or non-happening of an event which is not certain. The law is that until the event happens, or is rendered impossible, as the case may be, the interest does not vest. But it is still an interest. In this sense, it is not a 'mere' possibility.

1. Section 19.

2. AIR 1967 Guj 16 (contingent interest).

3. AIR 1930 PC 17 (contingent interest).

12.8. Need for amendment regarding contingent interest.-

In order to maintain the distinction between a bare possibility and a contingent interest, it appears to be desirable to make it clear in section 6(a) that a contingent interest can be transferred. Such an amendment is needed, in view of the fact that the present wording might lead to a misconception, and also since the matter seems to have come up before the Courts for determination.1

1. See case-law as to contingent interests, para. 12.7, supra.

12.9. Need for clarification regarding "chance".-

Apart from this clarification regarding contingent interests, it is also, as a matter of drafting, desirable to amend section 6(a) in so far as it deals with 'chance'. The present wording in section 6(a) is not very appropriate. The earlier half" of section 60(m), Code of Civil Procedure, is better expressed as already stated.1 The term 'heir apparent"2-itself not very happy in the Indian context-is restricted, and gives the wrong impression that an heir presumptive3 can transfer his spes successions-which is not the intention.

It is true that the non-transferability of the interest of an heir presumptive is deducible from the general prohibition as to "mere possibility". But that is true of the interest of the heir apparent also. This part of section 6(a) is certainly capable of improvement and advantage can be taken of the more appropriate wording in the earlier part of section 60(1)(m), Code of Civil Procedure, 1908.

1. Para. 12.5, supra.

2. The person first in line of succession.

3. The person second in line of succession.

12.10. Recommendation to revise section 6(a).-

We, therefore, recommend that section 6(a) should be revised as under:

"(a) an expectancy of succession by survivorship or any other mere possibility of a like nature.

Explanation.-A contingent interest in property is not a mere possibility within the meaning of this clause."



The Transfer of Property Act, 1882 Back




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