Rule of Spec Succession Section 6 of Transfer of Property Act
The said title of the article itself emphasizes the two prima facie questions:
- What property may be transferred?
- What property cannot be transferred?
Properties what can and cannot be transferred Or what may be transferred.
As a general rule all the properties can be transferred be it movable or immovable, tangible or intangible. So a building or a car can be sold and so does Goodwill and airwaves like 2G and 3G.
But according to section 6 there is a list of properties that cannot be transferred. In fact, not only we have to follow this list but in fact by section six itself if any other law is also not allowed a property to be transferred then section 6 also would not allow those property to be transferred. So here, section 6 is respecting the other laws also. So the laws like Sebi, the companies act, etc if they are not allowing any transfer then even the TPA it would not be allowed.
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:
- 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.
- Mere right of re entry : As the name suggest it means a person who has made an exit is again allowed to enter and this right is called as a right of re-entry.
So where in a lease the lesser exit the possession and lands it over to the Lessee and he has put a condition that the Lessee would not do the subletting and if he does, the lesser would dispossessed the Lessee and the third person. Now this right of disposition on the breach of condition of subletting is nothing but a right of re entry.
To conclude it, this right of re entry belongs to the owner and cannot be given to a third person. An easement cannot be transferred apart from the dominant heritage.
Easements, an easement is a right to enjoy others’ property for the beneficial enjoyment of your own property. An easement is also attached and always attached to the property, it cannot be separated from the property. So as a general rule, an easement alone cannot be transferred but if the property is sold it would be sold along with the dominant heritage. Dominant heritage is the property for whose enjoyment the easement is there, but the law upon which the easement is exercised is called the servient heritage.
- Restricted interest. According to section 6 D, a right which is personal to a person and it is only the person who would enjoy that right then such a right cannot be transferred for example betel box expenses which are personal to a Muslim woman cannot be transferred. Sometimes under Hindu law also some rights are personal to the female and that till the time she is in the family, has not remarried she would have the right of residential accommodations, such rights are not transferable. A right to future maintenance, in whatsoever manner arising; secured or determined, cannot be transferred.
- Future Maintenance : A future maintenance cannot be transferred but conversely it would mean that the past maintenance and the maintenance which had accrude already can be transferred. According to Mulla, passed maintenance or which has been already accrued can be transferred.
- Right to Sue : The right to sue is basically a right involving recovery of money which is unascertainable or which is not fixed. Such right is not transferable, had it been the fixed money it would have been an actionable claim and very much transferable. A public office cannot be transferred, nor the salary of a public office, whether before or after it has become payable.
- Public offices, salaries and pensions: A public office is an office which is controlled by the government of state. So basically it is the office of government which cannot be transferred. Even the salaries, pension and allowances of the government servants including the Armed Forces is not transferable as it is given as a part of respect for being in service for the nation. Stipends allowed to military, naval, air-force and civil pensioners of the Government and political pensions cannot be transferred.
- Transfer opposed to the nature. Section 6 : Under the jurisprudence of TPA there is a concept called as “Res communis”, which means that there are certain properties belongs to society. So air, light and space are always considered to be properties belonging to the society. It is not a property of single individual and therefore it cannot be sold by any single individual. Even for the practical purpose you cannot separate the air, light and space from the land, therefore it cannot be sold. When a property is sold the space over it is also transferred along with the property but an air and light cannot be sold separately.
- The object and consideration being unlawful or the transferee is not qualified.
No transfer can be made
- in so far as it is opposed to the nature of the interest affected thereby, or
- for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, or
- to a person legally disqualified to be transferee.
- Nothing in this section shall be deemed to authorize 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.
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:
Clause (a) Spes-Successionis: Section 6, A, provides for the same which means exception of succession. It is merely a chance to get the right over the property maybe by inheritance or a will. The right of a successor under personal law or a will is not a present right but only a future exception and a probability, only that is why it is not allowed.
For example, if A has two sons B and C and he has become very old and suffering from a disease. B the son is in need of money, sells half the share of property then such transfer would not be allowed under section 6. Because till A is alive B are C are only heir – apparent.
Spes-Successionis-Spes-Successions means expectation of succession. Expectation of succession is expecting or having a chance of getting a property through succession (inheritance or will).
Spes-Successions is, therefore, not any present property. It is merely a possibility of getting certain property in future. Spes-Successions under this clause includes:-
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). Father and son are entitled to inherit the property of each other. If father dies first, the son becomes father’s heir and inherits the properties of his father. But if son dies first i.e. while the father is still alive, he cannot inherit father’s property.
Who would die first, i.e. who survives whom, is not known because it is uncertain future event. Accordingly, during the life of father, the son cannot be called as his heir; he is simply heir-apparent of his father.
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.
A has two sons B and C. A has become very old and is also suffering from an incurable disease. But he is still alive. Expecting that A must die very soon and he is in need of money. B sold his half share in A’s property to X. This transfer is void because before A’s death B is not legal heir, he is simply an heir-apparent. B would be A’s heir and entitled to half-share in A’s property only after A’s death and that too if A dies intestate, i.e. without making any will.
Rights of reversioners under old Hindu Law.- Under old Hindu law, the rights of a reversioner i.e. ‘reversionary right’ was merely a chance of getting properties and as such it was Spes-successionis. 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 presenti 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.3 Being a Spes-successionis the agreement to transfer the properties by a reversioner was not valid.
In Annada v. Gour Mohan the 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 oF 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 the testator, the legatee has a simply a chance of getting property because
- The legatee May not survived the testator
- The will in his favour might not be the last will.
Before a will operates that is before the death of the testator, the legatee has merely a hope of getting properties in future provided it is the last will.
Any other possibility of a like nature.– This section also uses the words mere possibility of like nature, this means that any other uncertain rights would also not be transferable.
For example, A transfer the fish which he is going to catch in future, then such transfer would not be allowed as it is only a chance that he would catch the fish.