Report No. 70
12.11. Section 6(b).-
This takes us to section 6(b) which provides that 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. This clause has in mind right of lessor as against the leasee for breach of an express condition which provides that on its breach the lessor may re-enter.
The "condition subsequent" referred to in section 6(b) is defined in section 31 as a condition which divests an; estate that has already vested. Where the reversion of the lease is itself assigned, the assignee certainly is entitled to enforcement of the condition; but the mere right of re-entry cannot be assigned. Being an incident of the land, it may not be severed from the land for the benefit of another person unconcerned with the reversion.1 This is the principle.
12.12. It has been pointed out1 that the principle is susceptible of extension to other cases. For instance, in a hire-purchase transaction of a movable property, the right to take possession by force of the property which is the subject-matter of the hire-purchase-for example, a refrigerator or a motor-vehicle or furniture-is analogous to the right of re-entry. Or rather, it is an extra judicial remedy which cannot be transferred. To quote what has usually been stated in regard to easement, the right is a parasitical one.2-4
2. Ammutool v. Jamach Singh, 24 WR 345 (Cal).
3. Gale Easement, 6th Edn., pp. 65 and 492.
4. Also see section 19, Easements Act, 1882.
12.13. No change.- The points discussed above do not call for any amendment of section 6(b).
12.14. Section 6(c).-
Under section 6(c), an easement cannot be transferred apart from the dominant heritage. The expressions employed in this clause must be understood in the light of the definitions given in the Indian Easements Act, 1882. Since an easement appended to a dominant heritage is, by its very nature, intended for the enjoyment of the dominant heritage, it is axiomatic that it cannot be divorced from the dominant heritage. Conversely, where the dominant heritage is transferred, the easement is, ipso factor, transferred without a specific provision for transfer of the easement. This is expressly provided1 in the Act. Section 6(c) merely expresses the rule that there cannot be an easement in gross.2-3
The clause needs no change.
1. Section 8, second para., Transfer of Property Act.
2. AIR 1919 Nag 62.
3. AIR 1917 Cal 681.
12.15. Section 6(d).-
Then, under section 6(d), an interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. The example usually given is that of the right of the head of a Hindu religious institution such as a Math. Offices connected with such institutions are, in general, restricted in their enjoyment to the 'owner' personally-the word 'owner' is used in a wide sense as indicating the per son entitled to the interest.
There is also axiomatic. If enjoyment of property is restricted by law to the owner personally, it is obvious that it cannot be parted with. All these exceptions became necessary because section 6 opens with the abstract general rule that property 'of any kind' may be transferred and that general rule had to be qualified.
The precise question that usually falls to be considered under this clause is whether the particular interest in question is restricted personally to a particular person. This question cannot be answered without a study of that field of law which regulates the creation of the interest. It has its own reasons of policy for restricting the enjoyment. The considerations that give rise to restrictions on enjoyment automatically justify restrictions on transfer also.
The manager of a temple is by virtue of his office administrator of the property attached to it. As regards the property the manager is in the position of a trustee. But as regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office or dignity which may have been originally conferred on a single individual but which in course of time has become vested by descent in more than one person.1
Thus, the shebait performs a dual role, namely, he has duties to discharge in connection with the endowment and at the same time has a beneficial interest in the defaulter property. It was so laid down by B.K. Mukerjea, J. while considering the question whether the office of shebiatship was property for the purpose of Hindu Women's Rights to Property Act, 1937.2
1. Ramanathan Chitty v. Murruguppa Chitty, 1905 ILR 28 Mad 283 (PC).
2. Angoorbala v. Debabrata, AIR 1951 SC 293 (296).
12.17. In the case of all Hindu endowments, the inalienability is based upon the principle that no stranger shall be permitted to intrude into the management of the endowment. The reason usually given is that if such an alienation were permitted, the purchaser may be a person belonging to another religion who would be unwilling and unable to perform the worship and thus the object of the endowment may be defeated.1
In general, as regards the inalienability of religious offices, it is a dominant consideration whether the right is merely of a proprietary nature, or whether it is primarily based on religious sentiments. It was for this reason that the right of administering 'purohitum' to pilgrims resorting to the temple of Rameshwaram was held to be capable of alienation or delegation.2
1. Raja Verma v. Ravi Verma, ILR 1 Mad 235 (PC).
2. Ramaswamy v. Venketta, 9 Moore Indian Appeals 344.
12.18. No change.- This clause also needs no change.
12.19. Section 6(dd).-
Section 6(dd) prohibits transfer of a right to future maintenance, in whatsoever manner accruing, arising, secured or determined. The rationale of the prohibition is the principle that the right to maintenance is recognised for the sustenance of the beneficiary. If the beneficiary parts with it, he or she parts with a benefit which the law regards as essential for his or her sustenance. No man or woman is allowed to deal even with his or her affairs and transfer a right in a manner which defeats the basic purpose of the legal rule conferring the right. The very raison d'etre of the rule is defeated by such a transfer.
All this may sound elementary, but seems to be worth emphasising. The philosophical basis on which section 6(dd) rests is to a great extent similar to that on which the law prohibits a person from taking his own life, or atleast contained such a prohibition before certain other considerations, regarded as of overriding importance, modified the criminal law in this regard. Sustenance of human life is the dominant consideration that overrides the liberty of the individual to arrange his own affairs-including the freedom of disposition of property.1
1. Section 6, opening sentence.