TRANSFER OF PROPERTY ACT LLB NOTES IN Q & A FORMAT

 

Q. Property of any kind can be transferred. Discuss exception to this rule 

                                          OR 

Q. State the properties which cannot be transferred under the TPA

The general Rule is that : Every kind of property can be transferred. But there are certain exceptions-

 Subject matter of transfer – 

*Section 6 Every kind of property can be transferred. But following properties cannot be transferred:

·         Chance of an heir apparent.

  • Transfer of easement. 
  •  Restricted interest.
  •  Right to future maintenance. 
  •  Right to sue.
  •  Transfer of public office, salary and pension

 

Following properties cannot be transferred: 

  1. Chance of heir apparent (Spes successionis) •  Specs succession means exception to  succession. Possibility of getting property in future through succession. It is in anticipation or hope of succeeding to an estate of a deceased person. Such a chance is not property and as such cannot be transferred, if it is transferred, the transfer is wholly void. • Example: A is the owner of the property and B is his son. B is the heir of A. This type of property which B hopes to get after the death of the father cannot be transferred, during the life time of A.
  2. Right of re- entry • It means right of lessor to re-claim the leased property from lessee on breach of contract or express condition. It is personal benefit which can't be transferred. • Example: If A leases his property to B with a condition that if he sublets the leased land, A will have the right to reenter, i.e., the lease will terminate. This right to reenter is personal benefit available to A, which can’t be transferred. 
  3. Transfer of easement • An easement means an interest in land owned by another that entitled his holders to a specific limited use or enjoyment. An easement cannot be transferred. • Example: If A, the owner of a house X, has a right of way over an adjoining plot of land belonging to B, he cannot transfer this right of way to C. But if A transfers the house itself to C, the easement is also transferred to C. 
  4. Restricted interest • Certain rights enjoyment of which is reserved for certain person. If it is so, it is known as restricted interest. Restricted interest can’t be transferred to another person. It includes ‘religious office’. • Example: The right of PUJARI in a temple to receive offering. The right of WIDOW under Hindu law to residence.
  5.  Right to future maintenance • Right to future maintenance is personal benefit to whom it is granted. However arrears of past maintenance can be transferred. • Example: The right of a Hindu widow to maintenance is a personal right which cannot be transferred. 
  6. Right to sue • A mere right to sue cannot be transferred. The right refers to a right to damages arising both out of contracts as well as torts. • Example: A commits an assault on B. B can file a suit to obtain damages; but he cannot assign the right to C and allow him to obtain damages. 
  7. Transfer of public office • It is against public policy to transfer public offices, salary and pension. Pension and salary are given on personal basis, it can’t be transferred. [In Corporation of Liverpool v. Wright:“Where the law assigns fees to an office, it is for the purpose of upholding the dignity and performing properly the duties of that office and the policy of the law will not allow the officer to bargain away those fees to the appointer or anyone else.”]  
  8. stipends and Pensions: stipends allowed to military, naval, air-force, and civil pensions of the Government and political pensions cannot be transferred.
  9. Unlawful object or consideration- No transfer can be made in 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.
  10. Occupancy Rights • Transfer of occupancy rights of a tenant is prohibited. • Example:- Tenant can’t transfer his right of tenancy and farmer can’t transfer his right to land if he himself is a lease.

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