TRANSFERABILITY OF PROPERTY
6. What may be transferred.-Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.
a. The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.
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. An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
dd A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred;
e. A mere right to sue cannot be transferred.
f. A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.
g. Stipends allowed to military, naval, air-force and civil pensioners of Government and political pensions cannot be transferred.
h. No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) [for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872),] or (3) to a person legally disqualified to be transferee.
i. 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
For a valid transfer of property, the property must be a transferable property. As a general rule, property of every kind may be transferred. But, there are certain kinds of properties the transfer of which is not allowed under the law. Such properties are called non properties. Transfer of any non-transferable property is void.
Therefore, that transferability of property is the general rule, its non-transferability is an exception. Exceptions to the general rule that property of every kind may be transferred are given in Section 6 of the Transfer of Property Act.
Under Section 6 of this Act, not-transferable properties have been divided into two categories.
1. The properties which are made nontransferable under law, for the time being in force in India, other than TPA such as Hindu Law , Muslim Law , CPC etc.
2. The properties mentioned specifically in clauses (a) to (i) of Section 6 of the Transfer of Property Act.
Non-transferable under any Other Law
Section 6 recognises the non-transferability of any property also under other laws in force in India. For example, under Hindu law coparcenery property is regarded as non-transferable and there is restriction on the transfer of such property.
Similarly, a property dedicated to God, being of religious use, is also non- transferable under Hindu law.
Under Muslim law, Waqf—properties and the office of Mutawalli etc. have been regarded as properties which cannot be transferred.
Section 60 of the Civil Procedure Code, prohibits the attachment of necessary cooking-vessels and the tools of artisans etc. Moreover, transfer of agricultural tenancies have been prohibited under certain local enactments and local customs
Non-transferable under Section 6
Section 6 lays down ten kinds of specific properties or interests which cannot be transferred. These non-transferable properties are given in the following clauses:
(1) Clause (a) Spes-Successionis.—
Spes-Successionis means expectation of succession. Expectation of succession is expecting or having a chance of getting a property through succession (inheritance or will). Spes-Successionis is, therefore, not any present property. It is merely a possibility of getting certain property in future.
Spes-Successionis under this clause includes:-
1. Chance of an heir-apparent succeeding to an estate,
2. Chance of a relation obtaining a legacy on the death of a kinsman or,
3. any other mere possibility of a like nature.
Chance of an heir-apparent.—
Heir-apparent is apparently an heir but not legal heir.Heir-apparent is a person who would be heir in future if he survives the propositus (the deceased whose property he inherits) and if the propositus dies intestate (without making any will). An heir-apparent has only a chance of inheriting the property subject to two possibilities (1) he survives the propositus and (2) the propositus dies intestate i.e. without making any will.
Thus, before the intestate death of the propositus, the ‘chance’ of an heir-apparent of getting the property is merely a future possible interest.
It is a bare or naked right which does not create any interest in favour of the heir-apparent. Law cannot treat it as a present fixed right in the property. Therefore, chance of an heir-apparent is a non-transferable property.
However, where a person is not heard of for a long period and is believed to have been dead, the transfer of his properties by his brother as his legal heir would be a valid transfer because, under the circumstances, brother is not merely an heir- apparent but a legal heir.
Rights of reversioners under old Hindu Law.—
Under old Hindu law, the rights of a reversioner i.e. reversionery right was merely a chance of getting properties and as such it was Spes-succession is.
Reversioner was a person who used to inherit the properties of a widow held by her for life.
Such persons were called reversioners because during the life of the widow, their rights of inheritance were suspended but it reverted to them after widow’s death provided they survived her.
Thus, during widow’s life the Hindu reversioner had no right or interest in proesenti in the property which the female owner held for her life and until it vested in him on her death provided he survived her, he had nothing to assign or transfer. Being a Spes-Successionis the agreement to transfer the properties by a reversioner was not valid.
In Annada v. Gour Mohanthe Privy Council held that since the interest of a Hindu reversioner is a Spes-successionis, an agreement to transfer, or a transfer of, such an interest does not become effective; the agreement is void.
Chance of a legacy.— Chance of a legacy means expectancy of getting certain property under a will.
The well settled law of wills is that a will operates only after the death of the testator (who makes the will) not on the date when it is written.
Further, it is the last will which prevails and if two or more wills have been executed in favour of different persons, only the legatee under the last will is entitled to get the property.
Accordingly, where a person executes any will before the death of that testator, the legatee has simply a chance of getting property because (1) the legatee may not survive the testator and (2) the will in his favour might not be the last will.
Before a will operates i.e. before the death of the testator, the legatee has merely a hope of getting properties in future provided it is the last will.
Accordingly, the chance of a relation or a friend or any person receiving a l gacy is a possibility even more remote than the chance of succession of an heir and is, therefore, not transferable.
Any other possibility of a like nature.—
Any other possibility of the like nature would mean any other possible interest or property which is as uncertain as the chances of an heir-apparent or chance of a relation of getting property under a will.
The central idea behind clause (a) is that any property which is merely a future uncertain possible interest should not be made a transferable property.
Therefore, clause (a) exclude not only the chance of an heir-apparent or of a legatee but also any other chance of getting future property which is not at present a fixed right of the transferor.
Thus, future wages of a servant before they are actually earned by him, are mere possible interest and as such cannot be sold, attached or otherwise transferred.
Where a fisherman contracts to transfer the fish which he would get in his next catch before throwing his net, the transfer would be a transfer of mere possible interest of the same kind as that of a chance of an heir-apparent receiving property in future. The fisherman may or may not get any fish at all in his next catch. There is no certainty that any fish will be caught and the fisherman has no interest in the fish until they are caught.
Customary right to scavange i.e. right to collect things from the rubbish has been held non- transferable right.
Similarly, chance of being paid gratuity is also held to be not transferable.
Right to receive future offerings.—Right to receive offerings of a temple or shrin is a proprietary right or beneficial interest. It is, therefore, property.
Offerings which have actually been made in the temple are present property. Thus, share of a priest in the net-balance of the offerings already made to an idol may be attached.
But as regards the transferability of the right to receive future offerings, the opinion of the Courts was divided.
According to Calcutta High Court it is uncertain future right (interest) hence it is a mere possibility which cannot be transferred.
On the other hand, according to Allahabad High Court it was transferable.
The Supreme Court has now settled the law. In Badrinath v. Punna, following the view of Allahabad High Court, the Supreme Court held that the ‘right to receive the offerings being oupled with duties other than those involving personal qualifications, therefore, transferable and could be inherited’.
The Apex Court observed that it did not depend on any possibility of the nature referred to in Section 6(a) of the T.P. Act.
In this case, right to receive the future offerings at the sacred temple of Shri Vaishno Devi Ji was held to be heritable right (interest).
It may be noted that contingent interest as provided in Section 21 of this Act is also a possible interest depending on uncertain future event. But contingent interests are transferable interests because here the possibilities are coupled with some interest; they are not bare possibilities.
Spes-Successionis under Muslim Law..— Spes-Successionis is not transferable also under Muslim law.
But virtue of Section 2 of this Act, the provisions of Chapter II including Section 6(a) do not apply to Muslims. So, if the rule of Muslim law would have permitted the transfer of Spes-successionis, it would have been transferable interest. But, the transfer of Spes-successionis is equally void under Muslim law.
In Abdul Gafoor v. Abdul Razack, the Madras High Court has held that since in the case of Muslims too the transfer of an expectancy by a heir presumptive (heir-apparent) is void ab initio, ….
Spes-successionis in Punjab.—
The Transfer of Property Act is not applicable in Punjab. Therefore, Spes-successionis is not any non- transferable property. The transfer of Spes-successionis, i.e., transfer of expectancy or of reversionery rights has been held valid in Punjab.
In the absence of applicability of the Transfer of Property Act in Punjab, the Courts there follow the English equitable principles.
It is submitted that although the Act does not extend to Punjab, the Courts may apply the law laid down in Section 6(a) of this Act on the ground of their own equity, justice and good conscience instead of following English equity. This would bring the law in Punjab in tune with the law applicable in other parts of India.
English Law.—
Under English law too, Spes-successionis is non- transferable property. But if the transfer of Spes- successionis is supported by some consideration, the transfer is not void ab initio under the English equity.
In other words, transfer of expectancy for value has been protected by equity.
The result is that if an heir-apparent transfers the property and the transfer is for valuable consideration then, when that heir-apparent bec mes legal heir and gets interest in that property, the equity shall compel him to pass on the title to the transferee.
The English equity would not allow the transferor (heir- apparent) to plead that the transfer was void ab initio.
However, where the transfer of Spes-Successionis is without any consideration, i.e., there is a gift of expectancy, the transfer would be void because equity then cannot protect the interest of the transferee.
It may be noted that the above-mentioned equitable principle has been incorporated in Section 43 of the Transfer of Property Act and the Supreme Court has adopted the same view.
(2) Clause (b): Mere Right of Re-entry.—
Section 6(b) provides that mere right of re-entry cannot be transferred.
‘Right of re-entry’ means right to resume possession. Where a person gives the possession of his property to another for a certain period and is afterwards entitled to get it back, his right of entering into the possession of that property once again, is technically called as his right of re-entry.
Under this clause, the right of re-entry refers to the right of a lessor or landlord to resume possession of the property from the lessee (tenant) upon the breach of a condition subsequent.
The right referred to in this clause is similar to the right of a lessor under Section 111(g) of this Act where a lessor is entitled to terminate the lease if lessee commits breach of any condition imposed by him (lessor).
For example, a landlord lets out his house and imposes a condition that the tenant must not make any alteration in the house.
Upon the breach of this condition by the tenant, the landlord has right to terminate the tenancy whereby he would resume the possession before expiry of the term of tenancy. This right of the landlord is his right of re-entry.
The right of re-entry is, therefore, a right connected or accompanied with interest in a land.
Mere right of re-entry means a right to resume possession not accompanied with any other interest in land. The right of re-entry apart from or without any interest in land is simply a personal licence.
Section 6(b) prohibits the ‘mere right of re-entry because personal licence cannot be transferred under the law.
But right of re-entry coupled with any other interest in the land is transferable together with that interest.
Thus, where the land itself is transferred or the lessee has been given a permanent lease, the right of re- entry is automatically transferred to the transferee of land or the lessee, as the case may be.
Illustrations
i. A has leased his land to B for a period of three years with an express condition that B shall not dig any well on the said land. B digs a well on the land. A asks C to take possession of the said land from B i.e. A transfers his right of re- entry upon the breach of condition by B. C cannot take possession from B because A has transferred to him mere right of re-entry.
ii. A lets out his house to B for five years subject to a condition that B shall not sub-let it to any other person. B sub-lets the house in violation of the express prohibition. A has right to terminate the tenancy. i.e. has right of re-entry. But during tenancy (before expiry of the term of five years) A sells the house to C. C has a right to terminate the tenancy of B because A transfers to C not only right of re-entry but also other interest, namely, ownership to C.
iii. Certain goods are delivered under hire-purchase agreement giving the bailor (seller) a right to re-enter the go down where goods are kept and take possession in default of payment of any instalment. The bailor assigned (transferred)) his rights under the agreement by way of security to his creditor. The assignment is invalid. Creditor cannot enforce the right of re-entry because it is merely a personal licence unaccompanied with any interest in the goods.
(3) Clause (c) Easement apart from Dominant Heritage.—
Easement is a right which exists for the beneficial enjoyment of a land and is exercised upon the land of another person.
The land or tenament (house) for whose beneficial enjoyment this right exists is called dominant heritage and the land or tenament upon which the right is exercised is called servient heritage. For example,
A who is owner of a house has a right of way upon the land owned by B so that he may reach the main road. A’s house is dominant heritage and the land of B is servient heritage.
A’s right of way is easementary right. Although this right is exercised by A but it exists for beneficial enjoyment of A’s house; therefore, technically, the right is not of A i.e. it is not his personal right but a right attached to the house. Since this right is part and parcel of this house .e. the dominant heritage, it cannot be severed or detached from it.
In other words, an easement cannot exist independently of the dominant heritage. Accordingly, although it is a proprietary right and as such a property yet, its separate transfer is prohibited.
Clause (c) provides that an-easement cannot transferred apart from the dominant heritage. But, when the dominant heritage itself is transferred, the easementary right appurtenant (attached) to it is by itself transferred together the dominant heritage.
It may be noted that Clause (c) of the Act prohibits the transfer of easement; it is not concerned with the creation of easement which is not any transfer.
Similarly, this clause is also inapplicable where the owner of the dominant heritage releases the easement in favour of the servient heritage. Release of an easement is not transfer; it is extinction of the right.
(4). Clause (d): Restricted Interest.— Under this clause an interest in property restricted in its enjoyment to the owner personally has been made non-transferable.
Beneficial interests or an interest by virtue of which a person derives certain benefit is the property of that person.
1. Such property (beneficial interest is owned by that person but he cannot transfer it. It is restricted to his own enjoyment.
2. As a matter of fact, such interests are created in favour of a person only due to his (her) personal qualifications. Such interests are, therefore, purely personal in nature and may be called personal rights which are non-transferable.
It would be against the very nature of the right and would also defeat the purpose f its creation if such rights are made transferable.
1. The reason behind making personal interests as restricted interest (and thereby making it non- transferable) is that the transferee may not have that personal qualification which the holder of such interest has. Such interests are, therefore, res extra commercium (things beyond any trade or transaction).
It may be noted that Section 6(d) deals with ‘restricted interest’ itself, not with ownership (absolute interest) with certain restrictions on right of enjoyment or possession.
In K. Balakrishnan v. K. Kamalam,
a lady inherited some property from her maternal-father as owner. She gifted this property to her minor child reserving personally the possession and the right of enjoyment to herself.
It was argued that since the gift (to the minor) was of ‘restricted interest’ which was prohibited under Section 6(d), therefore, the gift-deed ineffectual and void.
But, the Supreme Court held that it cannot be said that the gift-deed was ineffectual merely because the donor has restricted to herself the possession and enjoyment of the property gifted.
Explaining the Supreme Court observed, “Clause (d) of Section 6 which provides that all interests in property restricted in its enjoyment to the owner personally cannot be transferred by him is not attracted on the terms of the gift-deed herein because
1. it was not a property, the enjoyment of which was restricted to the owner personally. She was absolute owner of the property gifted and it was not restricted in its enjoyment to herself”.
Examples of restricted interest
1. Religious offices, such as the office of Shebait or Pujari who performs religious services in a temple or, Mahant of a Mutt57 or Mutawalli of a wakf58
2. Briti Mahabrahmini i.e. right of a mahabrahmini to officiate the funeral ceremonies .
3. The emoluments or the right to get money or some property only by virtue of holding a religious office .
4. Right to receive certain payments or something only because of some peculiar status .
i. Kharcha-i-pandan (personal allowances granted by husband to a Muslim wife) even if a charge has been created for its payment, is wife’s personal right and cannot be assigned.
ii. the widow’s right of retention of her husband’s properties in lieu of unpaid dower, has been held a restricted interest.63
5. Service tenures i.e. right in certain land which are given to a person by way of remuneration for personal services being discharged by that person, are also non-transferable. Such tenures depend on personal services of the holder of the lands.
6. Interests may be restricted also in cases where the property is given to a person for use for some specific purpose. Since the idea behind creating such interest is the ‘specific purpose’, it cannot be transferred to any other person for any other purpose.
For example, A gives the possession of his house to B for a week so that B may perform the marriage ceremony of his daughter. B transfers the possession of the house for the said week to C and performs the marriage of his daughter in a hotel. The transfer of possession of the house by B to C is…(to see from book)
ii. But, where the emoluments are independent of religious office, such emoluments can be assigned to other person.
(5) Clause (dd) : Right to Future Maintenance.—
Where a person is entitled to receive maintenance allowance, it is his personal right because it is given or is promised to be given in future solely for his own benefit. As such, the right to future maintenance is a restricted interest which is non-transferable under Section 6(d) discussed earlier.
Maintenance may be granted to a person either by personal contract or under a decree ‘of the Court of law. Where maintenance is granted by the decree of Court, it is more certain and secured than the maintenance granted by a personal contract.
Before, 1929, there was judicial controversy regarding the transferability of the maintenance granted by decree of the court.
According to Calcutta High Court, the maintenance granted by court was not transferable because essentially right to maintenance was a personal right whether granted by court or by personal contract.
But according to Madras High Court, right to future maintenance, when granted under a decree of Court was a secured right and was transferable.
The Amending Act, 1929 has inserted clause (dd) to resolve this judicial conflict. Under clause (dd) the right to future maintenance is now non-transferable right even if it has been granted under any decree of the Court of law.
It may be noted that under this clause there is Prohibition in the transfer of future maintenance granted under a decree. The assignment of the decree for maintenance which has already accrued due shall be a valid assignment because arrears become debt and as such, can be attached or sold.
(6) Clause (e) Mere Right to Sue.—
Right to sue for a certain sum of money is actionable claim. Actionable claim is a claim for a certain amount of money and can be transferred. But right to sue for uncertain or indefinite sum of money is not transferable.
Under Section 6 (e) ‘right to sue’ means right to sue for the claim of any uncertain sum of money.
Illustrations
i. A publishes defamatory statements against B. Under the law of tort B has a right to claim damages from A. B thinks that he must sue A claiming Rs. 50,000/- as damages. But, instead of filing the suit himself B assigns this right to C.C sues A claiming Rs.. 50,000/- from him for the defamation of B. The assignment (transfer) of right to sue for damages by B to C is invalid because it is non-transferable right under Section 6(e). C has, therefore, no right to claim damages from A and his suit is not maintainable.
ii. There is a contract between A and B under which A agrees to transport certain goods of B from Calcutta to Bombay within a month. A fails to transport the said goods within the stipulated time and thereby commits a breach of contract. Due to delay caused in transportation of goods by A, B has to incur loss in the market. B is entitled to claim damages from A. B assigns this right to C. The assignment being transfer of ‘mere right to sue for damages, is invalid and C cannot recover damages from A.
It may be noted that in the abovementioned illustrations the assignment of the claim of damages is invalid because of two reasons.
First, the right to sue is for claiming damages which are uncertain amount.
Secondly, the right to sue for damages is personal to the party aggrieved.
In M/s Mc Dowell & Co. Ltd. v. District Registrar, Vishakhapattanam,
A manufacturing company insured its goods with an Insurance Company for the loss or damage of its goods during transportation.
The Insurance Company in turn was entitled to proceed directly against the transporter in the event of such loss or damage of the goods.
A document, to this effect, was executed by manufacturer in favour of the Insurance Company wherein the manufacturer had subrogated (substituted) its right to sue the transporter for any loss or damage to goods in consideration of the payment of amount under insurance policy.
The question arose as to whether this document is to be treated as conveyance (transfer of property) for purposes of ‘stamp-duty?
The Andhra Pradesh High Court held that the document was not a deed of conveyance because the right of manufacturer was ‘mere right to sue’ for damages and the same right (alone) was given to Insurance Company.
Accordingly, the Court held that the question of treating the disputed document as a document of conveyance or assignment would not arise; the document is a Power of Attorney (for stamp-duty) under which company had given merely a right to sue for damages.
Claim of mesne profits is also a claim for an indefinite sum of money like damages; therefore, mere right to claim mesne profits is non-transferable under Section 6(e), The Social policy underlying the non-transferability of mere right to sue for unliquidated amages is to prohibit the practice of gambling out of litigation.
Under English Law, gambling out of litigation is known as Champerty which is forbidden there.
In India, such contracts would be void as being opposed to public policy under Section 23 of the Indian Contract Act.
Use of the word mere is significant. Under this clause, it is the ‘mere’ right to sue which is non-transferable. If the right to sue is not a bare or ‘the only right’ but involves also an interest in the property, the right to sue is assignable. Together with the transfer of that interest, right to sue is also transferred.
Thus, a right to sue for damages due to breach of contract cannot be transferred but, if the property for which the contract has been made, is itself transferred, the transferee gets also the right to sue for damages.
In such situation the transferee would not have the bare or naked right to sue but would have the right to sue by virtue of ownership or beneficial interest in the property being transferred.
In Jaffer Meher Ali v. Budge Budge Jute Mills,
under a contract A agrees to sell certain quantity of gunny bags to B. The gunny bags are agreed to be delivered by A to B on a future date.
But before the expiry of the due date B assigns his beneficial interest in the sa d gunny bags to C. Thus, instead of B, the beneficial interest in the ‘gunny bags was now with C.
Thereafter A fails to deliver the bags before expiry of the due date and thereby committed a breach of contract (between A and B). C is entitled to sue A for damages because B has assigned to C not only the right to sue for breach of contract but also the beneficial interest in the gunny bags.
Where the right to sue is connected with a business and the whole business is transferred, the right to sue is automatically transferred.
It is not the transfer of mere right to sue.
A partnership firm entered into a contract with Government and all partners, except X, retired later on. According to the retirement deed all rights and liabilities of the firm were transferred to the remaining partner X. It was held by the Gujarat High Court that incidentally the right to sue for damages was also transferred and a suit by X for damages for breach of contract against Government is not hit by Section6(e).
In Amiratham Kudumbah v. Sarnam Kudimbar,
the property of a minor was sold by his father as natural guardian but the sale was neither with the permission of the court nor for legal necessity, therefore, it was voidable at the instance of his son who was the real owner.
Any person purchasing from the natural guardian obtains only defeasable title.
The Supreme Court held that a purchaser of the property form the son (after his attaining majority) would be entitled to file a suit for setting aside the sale by guardian (father) within three years after the minor attained majority.
The Supreme Court observed that the son had transferred the property on attaining majority and together with transfer of property his right to defeat existing adverse claim was also assignable (transferable) right. Therefore, Section 6(e) was held not applicable.
Transfer of a decree.— Decree is property of the decree holder but it is neither an actionable claim nor a ‘mere right to sue’. Therefore, although the original cause of action for the claim (i.e. right to sue for a claim) is not transferable as such, but if the same claim has been established by the Court under a decree, it is assignable. For example, assignment of decree for mesne profits is a valid transfer.
(7) Clause (f) Public Office & Salary of Public Officer.—
This clause prohibits transfer of a public office and the salaries of public officers. The reason for such prohibition is to ensure the dignity to the office held by a person appointed for qualities personal to him and getting salary for due discharge of his public duties.
Right to hold an office by virtue of which a person derives certain pecuniary gain is his beneficial interest whether that office is public or private. In both the cases a person is entitled to hold an office only because of his personal qualifications. As such, this right is a restricted interest.
Right to hold a private office would come under clause (d) whereas right to hold public office comes under clause (f).
The salary of a public officer whether before or after it has become due, is also non-transferable. Attachment or transfer of the salary of a public officer is illegal and opposed to public policy.
In Ananthayya v. Subba Rao,
an younger brother agreed to pay a certain part of his earnings to his elder brother in consideration of the latter (elder brother) providing him (younger brother) maintenance and education in the past.
The Madras High Court held that this agreement was not hit by clause (f) merely because the younger brother became a Government servant.
The court observed that the agreement was not an agreement for the transfer of salary; the amount agreed to be paid could be paid from any other source.
It is significant to note that the prohibition under this clause is regarding direct transfer of salary i.e. transfer or assignment from its source. Once the salary comes into the hands of a public servant, it becomes his property and is not subject to any restriction on its disposal.
(8) Clause (g) : Pensions and Stipends.—
Under clause (g) the ‘stipends allowed to military, naval, air force and civil pensioners of the Government and the political pensions, cannot be transferred.
The pensions or stipends etc. of the Government servants whether civil or military, are non-transferable on the same principle on which the salaries of public servants are not transferable under the preceding clause.
Pensions, stipends etc. of the Government servants or the political pensions (to the freedom fighters) are given to the person concerned only because of his past services or personal merits, therefore, these interests are personal to the recipient. Transferability of such interests would defeat the very purposes for which these interests exist.
The pension of a pensioner cannot be attached in the execution of any decree against him. Under Section 60 of the Civil Procedure Code, the pension of a pension-holder has been exempted form attachment.
However, the prohibition under clause (g) does not apply to private pensions and such pensions can be attached or sold.
(9) Clause (h) : Transfer Opposed to Nature of Interest etc.—Clause (h) provides that no transfer can be made under the following situations:
i. Where the transfer is opposed to the nature of interest created thereby.
ii. Where the transfer is for an unlawful object or consideration.
iii. Where the transfer is made to a person who is legally disqualified to be transferee.
(1) Transfer opposed to Nature of interest created thereby.—
There are certain properties which by their very nature can neither be owned nor transferred. For example, air, light, space, sea are such properties which in their natural form are nobody’s property.
Such properties are called res communes i.e. property of the whole community of the World. Nature gives the right to use them to every individual.
Their transfer would be opposed to nature of these properties. Mor over, it is not possible to hold and possess them separately.
Other things which come under this category are the properties dedicated for religious or public use.
(2) Transfer where its object or consideration is unlawful.—
Any property which is otherwise transferable shall become non-transferable if the object or consideration of the transfer is unlawful within the meaning of Section 23 of the Indian Contract Act 1872. Whether the object or consideration of a transfer is lawful or unlawful, is to be tested in the light of Section 23 of the Indian Contract Act.
Thus, under this sub-clause, the object or consideration of a transfer of property is unlawful in the following situations:--
a. It is forbidden by law,
b. It is of such nature that if permitted it would defeat the provision of any law or,
c. It is fraudulent or,
d. It involves injury to a person or property of the other or,
e. It is immoral or opposed to public policy.
(iii) Transfer made to a disqualified transferee.—
As discussed in Section 5 of the Act, any living person in existence can be a competent transferee. But, the transferee must not be legally disqualified to be a transferee.
Under Section 136 of this Act, Judges, legal practitioners or officers connected with any Court of justice are incompetent transferee in any dealings of actionable claims.
Thus, an actionable claim is otherwise transferable but when it is transferred to a Judge or an officer of the Court, it becomes a non-transferable property.
The object of this provision, it is submitted, is to secure and maintain the impartiality of the judiciary.
However, the prohibition under this clause is only with respect to actionable claims not for other kinds of properties.
Thus, for a debt secured by mortgage, the Judges or the officers of the Court re not legally disqualified transferees.
(10) Clause (i) : Untransferable Right of Occupancy.—
As a general rule occupancy rights or the leasehold properties are transferable interests.
But this clause makes an exception to this general rule. Similar exception has been made in proviso to Section 108 (j) of this Act dealing with the transferability of leases in general.
Under Section 6(i), a tenant having untransferable right of occupancy cannot transfer his right to another person.
Similarly, a farmer of an estate in respect of which default has been made in paying revenue is not authorized to assign his interest in the agricultural holding.
Relinquishment of the agricultural holding is a transfer, therefore, it is not valid under this clause.
Lessee of an estate under the management of a Court of Wards is also prohibited to assign his interest.
Clause (i) was added to Section 6 in 1885 in order to remove doubts regarding the non-transferability of occupancy rights in the agricultural lands. Occupancy rights of the agricultural lands have been declared to be non-transferable interests also in various tenancy land laws enforced in India.