Rule
The general rule in S.6 is that 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". This is the principle of free alienability. S.6 then lists the interests that cannot be transferred.
Free alienability promotes trade and stops property becoming dead capital. But some interests are only hopes, some are purely personal, and some are contrary to public policy. Letting them be sold would cause harm, so S.6 restrains them.
| Provision | Subject |
|---|---|
| S.6 (opening) | General rule: property of any kind may be transferred |
| S.6(a) | Chance of an heir-apparent; spes successionis |
| S.6(b) | Mere right of re-entry for breach of a condition subsequent (transferable only to the owner of the property affected) |
| S.6(c) | Easement apart from dominant heritage |
| S.6(d) | Restricted interest (personal right) |
| S.6(dd) | Right to future maintenance |
| S.6(e) | Mere right to sue |
| S.6(f) | Public office, and the salary of a public officer (before or after it is payable) |
| S.6(g) | Stipends of military, naval, air force and civil pensioners of the Government, and political pensions |
| S.6(h) | Transfer opposed to the nature of the interest, for an unlawful object or consideration (S.23 ICA), or to a person legally disqualified to be transferee |
| S.6(i) | Tenant with an untransferable right of occupancy, defaulting farmer of a revenue estate, lessee of an estate under a Court of Wards |
Requirements
A transfer is valid only if both tests are passed:
- The property does not fall within any S.6 exception.
- No other statute prohibits the transfer.
The presumption is transferability. The person who says a property cannot be transferred must prove the restriction. If the interest is not listed in S.6 or barred by another statute, it is freely transferable.
Non-transferable property
| Clause | Interest | Rationale |
|---|---|---|
| S.6(a) | Spes successionis (chance of an heir) | No present right exists; mere expectation is not property |
| S.6(b) | Mere right of re-entry for breach of a condition subsequent | It only protects the owner, so it can go only to the owner of the property affected |
| S.6(c) | Easement apart from dominant heritage | Easement is appurtenant to land; cannot exist independently |
| S.6(d) | Interest restricted in enjoyment to owner personally | Defeats the restriction to allow transfer |
| S.6(dd) | Right to future maintenance | Personal sustenance right; transfer would defeat its purpose |
| S.6(e) | Mere right to sue | Cannot traffic in litigation (maintenance/champerty) |
| S.6(f) | Public office or salary of a public officer | Public trust; the office and its pay are not personal property |
| S.6(g) | Stipends of Government pensioners (military, naval, air force, civil) and political pensions | Personal sustenance from the State |
| S.6(h) | Transfer opposed to the nature of the interest, for an unlawful object or consideration (S.23 ICA), or to a legally disqualified transferee | General residuary prohibition |
| S.6(i) | Untransferable occupancy right of a tenant, and certain revenue farmers and Court of Wards lessees | Statutory protection of these holdings |
S.6(a): spes successionis
Spes successionis: a mere hope of succeeding. The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, and any other mere possibility of a like nature cannot be transferred.
These are hopes, not rights. While the owner is alive the heir has nothing: the owner may sell, gift or will the property away. Allowing such transfers would also encourage speculation on a person's death.
What is a spes successionis:
- A son selling his "share in his father's property" while the father is alive (separate property of the father).
- A nephew selling his "right to inherit from his uncle" while the uncle lives.
- A legatee selling his "right under the will" while the testator is alive. A will can be revoked until death.
What is not a spes successionis, and can be transferred:
- A Mitakshara coparcener's undivided interest (a present right by birth).
- A vested remainder: a present right with enjoyment postponed (see PROP-1.5).
- A lessor's reversion: a present right to get the property back when the lease ends.
Do not confuse a lessor's reversion with the interest of a Hindu reversioner who expects to succeed after a limited owner (such as a widow under the old law). The Hindu reversioner's interest is only a spes successionis and cannot be transferred. If the transferor misled the buyer into thinking he owned the property, S.43 may still help the buyer once the transferor actually inherits (Jumma Masjid v Kodimaniandra Deviah).
S.6(dd): right to future maintenance
A right to future maintenance, "in whatsoever manner arising, secured or determined", cannot be transferred. Maintenance is for the personal support of the dependant. If it could be sold, a dependant in need could sell it for a fraction of its value and be left with nothing.
Arrears of maintenance (already accrued and due) can be transferred. The bar covers future maintenance only.
S.6(e): mere right to sue
A mere right to sue cannot be transferred. This prevents trading in litigation: funding another's case for a share of the proceeds (maintenance and champerty).
The line to draw: a transfer of property carries with it the right to sue for its protection, and that is valid. Only a bare right to sue, cut off from any property interest, cannot be transferred. A claim for a definite sum already due is an actionable claim and can be assigned under S.130. A claim for unascertained damages for a breach already committed is a mere right to sue.
S.6(h): residuary prohibition
No transfer can be made:
- in so far as it is opposed to the nature of the interest (for example, a life tenant transferring the property in perpetuity);
- for an unlawful object or consideration within S.23, Indian Contract Act (forbidden by law, fraudulent, injurious, immoral or opposed to public policy); or
- to a person legally disqualified to be a transferee.
Conditions restraining alienation (S.10)
A condition that absolutely restrains the transferee from parting with the property is void, and the transferee takes free of it. A condition in a lease for the benefit of the lessor is valid. A partial restraint (limited in time or scope) may be valid. Conditional transfers are covered in PROP-1.4.
Illustrations
1. Sale of a share in a living father's house
- Facts: Ravi's father Suresh owns a house in Hyderabad. While Suresh is alive, Ravi borrows Rs.20 lakhs and executes a deed transferring "my future share in my father's house" as security.
- Result: The transfer is void under S.6(a).
- Why: Ravi has no present right. His father may sell the house, gift it, or live another 40 years. Ravi transferred a mere hope.
2. Coparcenary interest
- Facts: Same family, but Suresh and Ravi hold the house as Mitakshara coparceners.
- Result: S.6(a) does not apply.
- Why: Ravi's interest arises by birth and exists now. It is not a mere possibility.
3. Bare right to sue
- Facts: Prakash's tenant damages his property and leaves. Prakash sells only "the right to sue for Rs.5 lakhs damages" to Vikram for Rs.2 lakhs.
- Result: Void under S.6(e). If Prakash sold the property and assigned the claim along with it, the assignment would be valid.
- Why: A bare claim for damages is a mere right to sue. A claim that goes with the property passes with it.
4. Future maintenance and arrears
- Facts: Anita gets Rs.15,000 a month as maintenance under a decree. She sells "maintenance for the next 10 years" to a financier for Rs.10 lakhs. Separately, six months' maintenance (Rs.90,000) is unpaid.
- Result: The sale of future maintenance is void under S.6(dd). She can assign the Rs.90,000 arrears.
- Why: Arrears are a debt already due. Future maintenance is for her support.
5. Unlawful consideration
- Facts: Deepak transfers his flat to Priya in return for her giving false evidence in his criminal case.
- Result: Void under S.6(h).
- Why: The consideration is unlawful and opposed to public policy (S.23, Indian Contract Act).
6. Pension
- Facts: Retired Colonel Sharma assigns his military pension to a bank as security for a car loan.
- Result: The assignment cannot be enforced (S.6(g)).
- Why: Government pensions are for the pensioner's support. The bank can proceed only against his other assets.
7. Absolute restraint on alienation
- Facts: A transfers his house to B on condition that "B shall never sell, mortgage or alienate this house".
- Result: The condition is void under S.10. B takes the house free of it.
- Why: An absolute restraint is inconsistent with ownership.
8. Partial restraint and lease covenant
- Facts: A transfers a farm to B on condition that B will not sell it outside the family for 10 years. Separately, A leases a flat to C on condition that C will not sublet.
- Result: The partial restraint may be valid. The lease condition is valid.
- Why: S.10 strikes down only absolute restraints, and it expressly saves a lease condition for the lessor's benefit.
Key Cases
Abu Mahomed v S.C. Chunder, (1909) ILR 36 Cal 345 (Calcutta High Court)
- Facts: The seller failed to deliver gunny bags due under a contract. After the breach, the buyers' rights were assigned, and the assignee sued for damages.
- Held: A claim to unascertained damages for a breach already committed is not an actionable claim. It is a mere right to sue, so the assignee could not maintain the suit.
- Principle: S.6(e) bars the transfer of a bare claim for damages. A claim to a debt, or to the benefit of a contract not yet broken, can be assigned.
Jaffer Meher Ali v Budge-Budge Jute Mills Co, (1906) ILR 33 Cal 702 (Calcutta High Court)
- Facts: A buyer of gunny bags, about to file for insolvency, assigned the benefit of his contracts to his brother-in-law for a nominal Rs.100 to keep them from the Official Assignee.
- Held: The benefit of the contract was assignable as an actionable claim, but this assignment was made to defeat the insolvency law. It was for an unlawful object and inoperative under S.6(h).
- Principle: S.6(h) imports S.23, Indian Contract Act. A transfer whose object would defeat the provisions of any law is void.
Jumma Masjid, Mercara v Kodimaniandra Deviah AIR 1962 SC 847
- Facts: In 1920 the reversioners sold family land to Ganapathy, representing that they owned it, while the widow Gangamma was still alive. They became entitled only on her death in 1933.
- Held: The transfer of a spes successionis is void under S.6(a), but where the transferee was misled, S.43 makes the interest pass when the transferor later acquires it.
- Principle: S.6(a) and S.43 operate in different fields. S.6(a) protects against trading in hopes; S.43 protects a transferee misled by a false representation.
Anthony v KC Ittoop Anthony v KC Ittoop 2000 is sometimes cited here, but it is a lease case (an unregistered lease and a tenancy created by conduct under S.107). It is studied with leases in PROP-4.1.
Distinctions
| Aspect | Transferable Property (S.6 general rule) | Non-Transferable Property (S.6 exceptions) |
|---|---|---|
| Nature of right | Present, vested, crystallised right | Expectation, personal right, or public trust |
| Presumption | Transferable unless proved otherwise | Must fall within enumerated exception |
| Burden of proof | On person asserting non-transferability | Exception must be specifically identified |
| Examples | Land, buildings, shares, coparcenary interest, a lessor's reversion | Spes successionis, maintenance, right to sue, pension, public office |
| Effect of purported transfer | Valid; passes title | Void; no title passes |
| Who benefits from restriction | Public interest / the right-holder themselves | Prevents exploitation, speculation, trafficking |
| Aspect | Spes Successionis (S.6(a)) | Vested Remainder |
|---|---|---|
| Nature | Mere hope/expectation | Present right, future enjoyment |
| Defeasibility | May never materialise | Cannot be defeated (unless conditional) |
| Transferability | Non-transferable | Freely transferable |
| Example | Son's hope of inheriting from living father | Remainderman's right after life tenant dies |
| When right arises | Only upon death + survivorship | At the time of creation of the grant |
| Depends on | Ancestor dying first + not alienating | Nothing (already vested) |
Exam Scenario
X's father Y owns agricultural land (his separate property) worth Rs.50 lakhs. While Y is alive, X borrows Rs.10 lakhs from Z and executes an agreement: "I transfer my share in my father's agricultural land to Z as security." Y dies and X inherits the land. Z claims it. Advise Z.
Approach
- Issue: When X signed, Y was alive, so X had only a hope of inheriting.
- Not met: S.6(a) bars the transfer of the chance of an heir-apparent. The transfer is void from the start.
- Not met: The void transfer does not become valid because X later inherits.
- Not met: S.43 does not help Z. The deed itself said the land was the father's, so Z was not misled about X's title.
Conclusion: Z cannot claim the land.
Remedy: Z can sue X for repayment of the Rs.10 lakh loan as a money claim. If X and Y had been Mitakshara coparceners, X's interest would have been a present right and S.6(a) would not apply.
Scenario 2
Mohan gifts his house to his son Suresh on condition: "Suresh shall never sell, mortgage or lease this property. If he tries to, the house shall go to Mohan's brother Ramesh." Five years later Suresh mortgages the house to a bank. Ramesh sues for the house. Advise Ramesh.
Approach
- Not met: The condition is an absolute restraint on alienation, so it is void under S.10.
- Not met: The gift over to Ramesh depends on breach of that void condition, so it fails too. A condition making an interest cease on an attempted alienation is void (S.12), and a gift over is subject to S.10 and S.12 (S.28).
- Issue: Suresh holds the house free of the restraint, so his mortgage to the bank is valid.
Conclusion: Ramesh's suit fails.
Remedy: None for Ramesh. The bank's mortgage stands.
Recall Check
- What is the general rule regarding transferability of property under S.6?
- What is "spes successionis" and why is it non-transferable?
- Distinguish between a "mere right to sue" (non-transferable) and a right to sue that accompanies a property transfer (valid).
- Why can arrears of maintenance be assigned when future maintenance cannot?
Flashcards
What is the general rule under S.6 of the TPA regarding transfer of property?
Property of any kind may be transferred, except as otherwise provided by the Act or any other law.
What is "spes successionis" under S.6(a)?
The chance of an heir-apparent succeeding to an estate; a mere expectation of inheritance. Not a present right. Non-transferable.
Can arrears of maintenance be transferred?
Yes. Only the right to FUTURE maintenance is non-transferable (S.6(dd)). Arrears (past-due amounts) are a debt and can be assigned.
What is the distinction between a "mere right to sue" (S.6(e)) and a right to sue that accompanies property?
A bare right to sue, with no property behind it, cannot be transferred (S.6(e)). When property is transferred, the right to sue for injury to that property can pass with it. A claim for unascertained damages for a breach already committed is a mere right to sue (Abu Mahomed v S.C. Chunder, 1909).
Is a Hindu coparcenary interest a spes successionis?
No. A Mitakshara coparcener has a present interest by birth, so it is not a mere chance of succession and S.6(a) does not apply. Whether he can sell his undivided share during the joint status depends on the school of Mitakshara law.
What is the residuary prohibition under S.6(h)?
No transfer can be made (1) in so far as it is opposed to the nature of the interest, (2) for an unlawful object or consideration within S.23 ICA, or (3) to a person legally disqualified to be a transferee.
Why are military/civil pensions non-transferable?
S.6(g): pensions are personal sustenance benefits from the State. Allowing transfer would defeat their welfare purpose and expose pensioners to exploitation.
Who bears the burden of proving that property is non-transferable?
The person asserting non-transferability. The presumption under S.6 is that all property is transferable.
Define "transfer of property" under S.5, TPA.
An act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons.
Does "living person" in S.5 include a company?
Yes. "Living person" includes a company, association, or body of individuals, whether incorporated or not.
What is the general rule under S.6 regarding transferability?
Property of every kind is transferable unless expressly restricted by S.6(a)-(i).
Is a right to future maintenance transferable?
No. S.6(dd) bars the transfer of a right to future maintenance, however it arises, is secured or is determined. Arrears already due can be assigned.
What does S.10 provide about conditions restraining alienation?
A condition absolutely restraining the transferee from parting with his interest is void, and he takes free of it. Exceptions: a condition in a lease for the benefit of the lessor, and the proviso for property given to a woman (not Hindu, Muslim or Buddhist) so that she cannot transfer it during her marriage.
What is the minimum competence required for a transferor under S.7?
Must be competent to contract (major, sound mind, not disqualified by law) and authorized to dispose of the property.
Can immovable property worth Rs.50 be transferred orally?
Sometimes. S.9 allows a transfer without writing wherever writing is not required by law. A sale of tangible immovable property worth less than Rs.100 may be made by delivery of possession (S.54). A gift of immovable property always needs a registered instrument (S.123), whatever its value.