Report No. 70

12.82. Section 6(h)(3)-Disqualified transferees.-

The law against the transferability of property to a person legally disqualified to be a transferee is, in part, a branch of the law against maintenance and champerty. For it is to discourage the malpractices which arose out of the law officers trafficking in questionable claims that the early statutes against champerty were directed.1

Thus, in England, it was provided by the Statute of Westminster that "no officers of the King, by themselves nor by others, shall maintain pleas, suits, or matters; having in the King's Courts, for lands, tenements or other things for to have part or profit thereof by covenant made between them; and he that shall be punished at the King's pleasure."2

Another statute passed in the same reign further extended the scope of the prohibition by prescribing that "the Chancellor, treasurer, justices, nor any of the King's Council, no clerk of the chancery, nor of the exchequer, nor of any justice or other officer, nor any of the King's house, clerk relay shall not receive any church, nor advowson of a church, land, nor tenement in fee, by gift, nor by purchase, nor to far, nor by champerty, nor otherwise so long as the thing is in plea before us, or before any of our officers; nor shall take no reward thereof."3

1. Gour.

2. 3 Edw. I, C. 25.

3. 13 Edw. I, C. 49.

12.83. This statute was again extended by another which ordained that "The King wills that no officer, nor any other (for to have part of the thing in plea) shall not take upon him the business that is in suit; nor none upon any such convenant shall give up his right to another."1 The penalty of attainder was provided for disobedience "but it may not be understood hereby that any person shall be prohibited to have counsel of pleaders, or of learned men in the law for his fee, or of his parents, or next friends."

1. 28 Edw. I, C. 11; 1 Rich. II, C. 4, extended the restriction to all persons.

12.84. A similar prohibition is separately and more specifically enacted by the Act1 and the Code of Civil Procedure,2 Section 136 of the Act enumerates the class of persons legally disqualified to be transferees under which Judges, legal practitioners, mukhtars, clerks, bailiffs and other officers connected with courts of justices are disqualified from buying any actionable claim.

Under Order 21, rule 73 of the Code of Civil Procedure, 1908, no officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.

We have no further comments on section 6(h)(3).

1. Section 136.

2. Order 21, rule 73, Code of Civil Procedure, 1908.

12.85. Section 6(i).-

Section 6(i) provides that nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.

This clause needs no comments.

12.86. Recommendation to add Explanation to section 6.-

In order to avoid any misapprehension that every item enumerated in section 6 is property, we recommend that an Explanation (or other appropriate provision) should be added to section 6 to the effect that nothing in this section shall be construed as implying that every thing mentioned in a clause of the section is property.