TRANSFERABILITY OF
PROPERTY IS GENERAL RULE ITS NON TRANSFERABILITY IS AN EXCEPTION”.-ANALYSE.
SYNOPSIS
STATEMENT OF PROBLEM
Clause (a) of section 6 of the Transfer Of
Property Act excludes mere chance of an heir apparent of succeeding to an
estate from the category of transferable property. The technical expression for
such a chance is ‘Spes Successionis’. During the lifetime of a person, the
chance of his heir apparent succeeding to the estate or the chance of a
relation obtaining a legacy under his will is a ‘Spes Successionis’(chance of
succession). Such expectancy does not amount to an interest in property and
cannot be made the subject matter of a transfer. The paper aims at analyzing
the position of the same while looking at a case study to understand why this
is an exception to the general rule and how it is different from other cases of
a like nature.
RESEARCH OBJECTIVES
- To
analyze and understand in this project,
and seeks to differentiate between the types of property that may be transferred from the non-transferable
type
- To
know about the discretion of the courts regarding if any loopholes found later
on while incorporation a company by a promoter.
- To
understand the nature of work and it
is essential to understand the connection that exists between the transfers of
property.
- The focus of this paper would be on the provisions of the Act, with close
reference to the relevant section of the Code, in trying to understand the
nature of property in general, thereby trying to answer the specific question
of whether or not all property is transferable.
RESEARCH QUESTIONS
- What
is property?
- In
how many category property can be classified?
- What do we mean by transfer of property
and what are the elements?
- Does Transfer of Property Act 1882 cover
both movable & immovable property?
- How many kind of transfer? When Transfer
of Property Act 1882 not amounting to transfer of Property?
- What
is Spec Successions?
RESEARCH METHOD
Methodology” implies more than simply the methods the
researcher used to collect data. It is often necessary to include a
consideration of the concepts and theories which underlie the methods. The
methodology opted for the study on the topic may be Doctrinal.
Doctrinal
research in law field indicates arranging, ordering and analysis of the legal
structure, legal frame work and case laws by extensive surveying of legal
literature but without any field work.
SOURCES OF DATA
The Secondary sources:
·
Books
(1).
the Transfer of Property Act, 1882, Bare Act.
(2).
SRA Rosedar, B.Com BL, Lexis Nexis, Property Laws (Transfer of Property &
Easements)
(3).Dr.
Rao Surya Rega, Ph.D (Law), Lectures on Transfer of Property, Asia Law House,
Reprint 2016.
(4).
Dr. Sinha R.K., Formerly, Head & Dean, Faculty of Law University of
Allahabad, The Transfer of Property Act, Central Law Agency, 18th
Edition,2017.
(5).
Shukla S.N., LL.M (Luck), The Transfer of Property Act [ACT NO. 4 OF 1882],
Allahabad Law Agency, 29th Edition,2015
·
Website
·
Dictionary-
CONCISE LAW DICTIONARY (LEXIS NEXIS) FIFTH EDITION
CHAPTER 1:
INTRODUCTION
Selling is essentially a transfer of feelings
– Zig Ziglar
Except as
specified in various clauses of s.6 of the act, property of any kind may be
transferred. Therefore, general rule is that property of any kind may be
transferred as laid down in s.6 and the person pleading non-transferability
must prove the existence of any usage or custom which restricts the right of
transfer. Clause (a) of section 6 of the transfer of property act discusses the
chance of an heir apparent to succeed to the property. A person having interest
which is spes successionis i.e. mere expectancy to succeed to the property in
future is not a right and is not capable of being transferred. Such a person
cannot bring a suit on the basis of such chance of succession. Similarly, a
gift of spes successionis is invalid and confers no title on the donee.
Where the
transfer is not of the right of expectancy of an heir apparent but of the
property itself, it cannot be said to be a transfer of a mere chance to
succeed. Thus, when a person is not heard of for a long time and is believed to
be dead, an agreement to transfer the property, entered into by his brother who
is in enjoyment and possession of the property in dispute, is not a transfer of
the right of expectancy, but of the property itself and is not hit by cl (a) of
s.6.
It is important to note the meaning of the word property as applied in
the act. Property has been given a rather wide spectrum covering both tangible
material things, e.g., land and houses as well as rights which are not
exercised over any material, e.g., a right to repayment of a debt. The word
‘transfer’ in the Act has also been used in a wide sense. It may mean either
transfer of all the rights and interests in the property or transfer of one or
more of subordinate rights in the property. Thus, the expression ‘transfer of
property’ may, therefore, imply either transfer of things, transfer of one or
more of the rights in a thing, or transfer of a debt
From the above discussion, it is clear that, the expression
transfer of property as defined in section 5 is wide enough to cover any
transaction which has the effect of conveying property from one living person
to another. Since conveying of the property involves the creation of new title
or interests in favor of the transferee. That is to say, if new title or
interest has not been created in favor of the transferee, the property is not
conveyed, hence no transfer of property.
CHAPTER 2:
PROPERTY
2.1 What is property?
The
term property is derived from the Latin term ‘propertia’ which means ‘a thing
owned’. The term ‘property’ has different meanings. Any physical object or
thing is property. Any object which is owned is property. Property denotes a proprietary
right of a person but not a personal right.
The
word ‘property’ is a term of a wide connotation and in the Act, it has been seen in any of the following senses:-
(1).Tangible
material things, e.g., land and houses.
(2).Rights which are exercised over material things, e.g., right to enjoy and
possess, right to sell or to make a gift of things.
(3).Rights
which are not exercised over any material, e.g., a right to repayment of a
debt.
2.2 Category of property classified
The
property can be classified in to two categories.
(1).Immovable Property
(excluding standing timber, growing crops, and grass)
(2).Movable Property
Movable
Property
"Immovable property" includes land,
buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or
any other benefit to arise out of the land, and things attached to the earth or
permanently fastened to anything which is attached to the earth, but not
standing timber, growing crops nor grass. ”immovable property" shall
include land, benefits to arise out of the land, and things attached to the
earth, or permanently fastened to anything attached to the earth.
Movable
Property
In civil
law systems, personal property is
often called movable property or
movables – any property that
can be moved from one location to another.
1.The movable property can easily be transported from
one place to another, without changing its shape, capacity, quantity or
quality.
2. Examples: vehicles, books, utensils, timber, etc.
3. Mango trees, if cut and sold for timber purpose,
are deemed as movable property.
4. Contract for cutting the bamboos and collection of
beedi leaves for orvesjear comes under movable property.
5. The movable property need not be registered under
the Indian Registration Act, 1908. It is purely optional.
6. The movable property is liable to sales tax, and
Central sales tax, subject to certain restrictions and conditions under the
Andhra Pradesh General Sales Tax Act, 1957 (or the State concerned) and the
Central Sales Tax Act, 1956.
7. Mere delivery with intention to transfer the
movable property completes the transfer.
8. Movable property does not form an accretion to an
ancestral impartibly estate. (Case-law: Thakur Hari Singh vs. Commissioner of
Income-tax (AIR 1968 Raj. 5)
2.3 What do we mean by transfer of property & its elements?
The requirements to be met
as per Section 5 are four in number.
Transfer must be by a
living or juristic person.
A juristic person was defined in the case Shiromanigurudwara
Prabhakar committee, Amritsar v. Sri SomnathDass. In this case the court said that a juristic person can be an
individual, firm, corporate company, association, society, not including
partnership firm. Any individual who can sue or be sued under law would satisfy
this requirement.
The transfer must be
through a conveyance.
Thirdly, the property
itself must be transferred.
Fourthly, it must be made
to a living or a juristic person.
2.4 Does Transfer of Property Act 1882 cover both movable &
immovable property?
Chapter II (S.5-S.53A) of the Act lays down the general law n
respect of property and can be interpreted to be applicable to both Movable as
well as Immovable property subject to the express language of the section
concerned. For instance S.6 talks about both movable as well as immovable
properties. Similarly S.25 (Conditional Transfer) also applies to both movable
and immovable properties. Look at it this way. Since S.5 while defining the
expression “Transfer of Property” uses the word “property” (without qualifying
with any adjectives like “movable” or “Immovable” It makes us path clear to
safely assume that the entire act applies to both movable as well as movable
properties.
2.5 Kind of transfer? When Transfer of Property Act 1882 not
amounting to transfer of Property?
Here we will
discuss the different types of transfers mentioned in the TP Act. In addition,
we will also look into License as provided under Sec. 52 of Indian Easement
Act, 1882, which is many times confused with lease and erroneously used.
1.
SALE
According to
section 54 of the Transfer of Property Act, Sale is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-promised. In
a sale, there is an absolute transfer of all rights in the property sold.
MODE OF
TRANSFER BY SALE
There are only
two modes of transfer by sale, that is: (i) by the registered instrument; and
(ii) delivery of possession. A transfer by sale of tangible immovable
property of the value of one hundred rupees and upwards can be made only by a
registered instrument.
2.
MORTGAGE
Section 58 of Transfer of Property Act defines a
mortgage as the transfer of an interest in a specific immovable property for
the purpose of securing the payment of money advanced or to be advanced by way
of loan, an existing or future debt or the performance of an engagement which
may give rise to a pecuniary liability. Thus, a mortgage is a transfer of an
interest in specific immovable property as security for the repayment of a debt.
The transferor
is called mortgagor, the transferee a mortgagee; the principal money and
interest of which payment is secured for the time being are called the
mortgage-money, and the instrument (if any) by which the transfer is effected
is called a mortgage-deed.
3.
EXCHANGE
Section 118 of the Transfer of Property Act provides
that when two persons mutually transfer the ownership of one thing for the
ownership of another, neither thing nor both things being money only, the
transaction is called an Exchange. The definition of the word exchange is
not limited to immovable property. Exchange is not only exchange of lands
but also barter of goods. In Harish Chandra v. Chandra Shekhar (AIR 1977 All 44).
4.
GIFT
Section 122 of the Transfer of Property Act defines
Gift as the transfer of certain existing movable or immovable property made
voluntarily and without consideration by one person, called the donor, to
another, called the donee, and accepted by or on behalf of the donee.
Such acceptance must be made during the lifetime of the donor and while he is still
capable of giving. If the donee dies before acceptance, the gift is void. A gift of immovable property to a minor is
complete when it is accepted by a person on behalf of the minor and appends his
thumb impression on the gift-deed in token of acceptance.
5.
LEASE
Section 105 of
the Transfer of Property Act lays down that a lease of immovable property is a
transfer of a right to enjoy such property, made for a certain time, express or
implied, or in perpetuity, in consideration of a price paid or promised, or of
money, a share of crops, service or any other thing of value, to be rendered
periodically or on specified occasions to the transferor by the transferee, who
accepts the transfer on such terms. The transferor is called the lessor,
the transferee, is called the lessee, the price is called the premium, and the
money, share, service or other thing to be so rendered is called the rent.
Transfer of Property
Act, 1882 not amounting to Transfer of Property
As the transfer of
property’ means ‘conveying of property’, i.e., creation of new title or
interest in the favor of the transferee, if new title or interest has not
created in favor of transferee , the property cannot be said to be conveyed,
thus no transfer of property.
- Partition-
As nothing new is obtained by a co-sharer on partition, it is not a
transfer of property. His specific share, which vested in him earlier, is
simply separated.
- Relinquishment:—it is an extinction of a right
and therefore, there is nothing left to transfer. Thus a relinquishment (The
act of giving up and abandoning a struggle or task) by a reversionary of
his reversionary interest does not amount to transfer. But if the person
in whose favor the ‘release’ is executed, gets certain rights by virtue
of such release, the transaction may amount to a transfer
- Surrender.—it
is not a transfer as it is the manager of a lesser estate with a greater
one.
- Easement.—the
creation of an easement (the privilege of using something that is not your
own) does not amount to a transfer.
- Will.—Because
it operates from the death of the person making it, while the definition
contemplates a transfer by a living person, does not fall within the
definition of transfer.
- Compromise.—it
may or may not amount to transfer. It depends on the facts and circumstances
of each case. In Hussiaa
Banu v. Shivanarayan, (AIR
1968 MP 307)
- Family arrangement/settlement. — A family
settlement entered into by the parties for the purpose of putting an end
to the disputes among family members does not amount to transfer, not
being an alienation it does not amount to the creation of an interest.
2.6 Spec Successionis
An expectation of succeeding to property. It is not a title, but adventurous lenders may see
it as a form of comfort. Spes successionis within the meaning of Section
6 of the Act: The things referred to in this Sub-section as non-transferable
are the chance of an heir succeeding to an estate, the chance of a relation
obtaining a legacy (a gift by will) on the death of a kinsman, and any other
mere possibility of a like nature.
CHAPTER 3:
PROPERTY of ‘ANY KIND’ MAY BE TRANSFERRED
3.1 Property of ‘any kind’ may be
transferred
The Transfer of Property Act, 1882 (hereinafter, the
Act) is a civil legislation of immense importance owing to the vast number
of property related transactions taking place throughout the country. A uniform
legislation was the need of the hour considering this factor, and this act was
drafted to serve the selfsame purpose. It is important to note the meaning of
the word property as applied in the act. Property has been given a rather wide
spectrum covering both tangible material things, e.g., land and houses as well
as rights which are not exercised over any material, e.g., a right to repayment
of a debt. The word ‘transfer’ in the Act has also been used in a wide sense.
It may mean either transfer of all the rights and interests in the property or
transfer of one or more of subordinate rights in the property. Thus, the
expression ‘transfer of property’ may, therefore, imply either transfer of
things, transfer of one or more of the rights in a thing, or transfer of a
debt.
3.2 Transferable Property &
attachment – a Critical Overview
Section 6 of the Act explains the nature of the property
liable to be transferred under the said provision.
In general "property of any kind may be
transferred'. There is however, a series of exceptions to this, as enumerated
under sub-sections (a) to (i), explained hereafter. It is interesting to note
the distinct similarity between these sections and those made by Section 60 of
the Civil Procedure Code as to the property which cannot be attached in the
execution of a decree. Although there is this similarity yet there is a
difference between the exceptions made in this section and exceptions made in
Section 60. Certain things such as tools of artisans and necessary cooking
vessels can be transferred, yet they, under Section 60 of the Code cannot be
attached. Apart from the exceptions made by the present section there are
certain restrictions imposed by other laws on the power of transfer. For e.g.,
restrictions in Hindu law against the transfer of coparcenary property.
CHAPTER 4:
CASE STUDY
4.1 Shiromanigurudwara Prabhakar
Committee, Amritsar v. SomnathDass
Fact of the case - In this case the court said that a juristic person can be an
individual, firm, corporate company, association, society, not including
partnership firm. Any individual who can sue or be sued under law would satisfy
this requirement.
4.2 Harish Chandra v. Chandra Shekhar
AIR 1977 ALL 44
Fact of the case - It was held that a release-deed is a
conveyance, hence a transfer of property. If the release deed states that the
releaser was the owner and it shows an intention to transfer his title and its
operative word sufficiently was the conveyed the title it would amount to
transfer.
4.3 Hussia Banu v. Shivanarayan AIR 1968
MP 307
Fact of the case - it was held that where
one of the parties to a settlement gives up a claim to receive a certain sum of
money from the other, in consideration of the latter’s given up the right to
certain property claimed by him, it would amount to a transfer.
4.4 Karpagathachi v. Nagarathinathachi
Fact of the
case & judgment - , two-widows had divided the husband’s property into two
shares and took possession of respective shares. Under the partition deed each
widow gave up her life interest. When one of the widows died her daughter took
over the possession. The other widow filed a suit against the daughter claiming
for the share, which is in possession of the daughter of the other widow. The
court held that each widow transfer her right of survivor ship according to
section 6(a) of transfer of property act. Charge cannot
be transferred because it is a right, which is a part of property. Compromise
cannot be transferred. Easement cannot be transferred because these are the
rights or interest arising of land, which is a part of the property but cannot
be transferred. Family arrangement may be transferred. A will cannot be
transferred because it does not operate by act of parties. Auction sale cannot
be transferred because property is in possession of another.
CHAPTER 5:
CONCLUSION & SUGGESTION
It is thus of
crucial importance that these concepts are well understood by both lawyers and
the parties concerned. This project has attempted to bring out such
distinctions as were found relevant for the present discussion, and the more
important portions of such legislation have been incorporated for the purpose
of a meaningful analysis of the issues at hand. I have tried my best in this research
work that the discussion ushered in this paper will go the distance in
clarifying the murky areas of these pivotal provisions.
I have tried to
incorporate the difference in position in this regard between the said
provisions of the Code and the Act, illustrating how though the conceptual
similarity is apparent on the face of the matter, there is a great difference
in terms of the meaning and content of the two statutory provisions. Also, it
has been concluded that though in general, ‘all property may be transferred’,
this is subject to the exceptions mentioned in Section 6(a) to (i) of the Act.
Thus, one may safely assume that, due regard being given to such exceptions,
expressly mentioned in the Act, transfer of all other categories of property is
possible and this Act is in furtherance of the selfsame objective of arriving
at the desired level of uniformity in terms of regulating property issues
throughout the length and breadth of this diverse nation.
I have tried to
incorporate the difference in position in this regard between the said
provisions of the Code and the Act, illustrating how though the conceptual
similarity is apparent on the face of the matter, there is a great difference
in terms of the meaning and content of the two statutory provisions. Also, it
has been concluded that though in general, ‘all property may be transferred’,
this is subject to the exceptions mentioned in Section 6(a) to (i) of the Act.
Thus, one may safely assume that, due regard being given to such exceptions,
expressly mentioned in the Act, transfer of all other categories of property is
possible and this Act is in furtherance of the selfsame objective of arriving
at the desired level of uniformity in terms of regulating property issues
throughout the length and breadth of this diverse nation.