L02/LLB/191275 1

University Roll No : L02/LLB/191275

Registration Number : L02-1214-0070-19

Name of Examination : Internal Assessment/B.A. LLB (5

years)

Semester : 5th Semester

Subject : Property Law

Paper : V

Date of Examination: 04/01/2022

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1. State the exception to the general rule that property of any kind may be
transferred.

Answer- Section 6 of the transfer of property act deals with the concept of what may be
transferred. Property and interests in property as a general rule are transferable, and it
should also be noted that the very transferability of the property is based on the maxim
‘alienation rei prefertur juri accrescendi’, and the meaning of the maxim goes like this–
Law favours alienation to accumulation. Therefore, it should be noted that any actions
made to interfere with the power of the owner to alienate his interest in the property are
considered disfavour in law. The transfer of property act, 1882 is civil legislation of
great importance owing to the huge number of property related transactions taking place
throughout the country.

Uniform legislation was the need of the hour considering this factor, and this act was
drafted to serve the same purpose. Further, transfer of property is defined as an act by
which a living person conveys certain property in present or in future, to one or more
other living persons, and here living person can be a company or an association or can
even be a body of individuals. Meaning of property has also been defined in the said act,
and this is done by rather giving a wider spectrum to the word property which includes
under its ambit both tangible – which include material things like houses land etc, and
certain rights pertaining to property which cannot be exercised over materials, which
can be right to a Right to repayment of a debt.

This broadsheet aims to provide a differentiation between the different types of property
that is transferable property and non-transferable property. And in order to know the
difference, it also becomes important to know the link which exists between the transfer
of property and section 60 of the Civil Procedure Code. In the first place this article
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would focus on the provisions of the Act, with close reference to the relevant section of
the Code, which would rather be an attempt to understand the property in general along
with trying to answer the question of whether a property is transferable, which would be
backed by the significant case laws.

Section 6

It specifically speaks about, what may be transferred. Property of any kind may be
transferred, except as otherwise provided by this act or even by any other law for time
being in force, and these exceptions will be discussed in detail in the following sub-
sections.

Sub-Section(a)- Transfer of Spes Succession

The concept of Spes Succession can be explained with the help of an Example– A
family consists of father F and son S, F being the owner of the property has the
ownership with him during his lifetime and no one else including his son is allowed to
sell the property, without his consent. Now, if F dies intestate, s would inherit his
property and hence, here it can be said that S is the Heir Apparent. Here S’s succession
to the property in the future is a chance due to two main reasons.

Firstly, As F is the owner of the property he may sell it, dispose of it in any manner he
thinks or make a will in someone’s favour. Eventually, nothing will be left for S.

Secondly, son S dies during the lifetime of his father. Thus, if S during the lifetime of
his father transfers the property without his father’s consent then the transfer would be
void ab initio and is also expressly prohibited by the act. In the case of Official Assignee,
Madras v. Sampath Naidu, it was observed by the court that a mortgage executed by an
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heir apparent is void even if he subsequently acquired the property as an heir. Hence,
from above it can be concluded that the transfer of spes succession is void ab initio.

Sub-section (b)- Right of re-entry

The right of re-entry means the right to resume the possession of the land which would
have been given to some other person for a certain period of time. And the cases of re-
entry are usually seen in the cases of leases, which would empower the lessor to re-enter
upon the demised premises if the rent is in arrear for a certain period or if there is a
breach of covenants in the lease.

Re Davis and Company, in this case, A purchased certain goods from B, which was on a
hire purchase agreement. This agreement contained a clause which was that after
purchase, A would take the property and would also pay the instalments on time, and in
case A fails to pay the instalments B would enter A’s premise and take the possession of
the property. The important point to be noted here is that the right to Re-enter is a
personal right of B and the same cannot be transferred by him, and in any case, if he
transfers this right to entry, to his creditors or anyone, then the same would be void.

Sub-section (c)- Easement

An easement can be quoted as a right which the owner or the occupier of certain land
has in his possession for the beneficial enjoyment of the said land, or it may even be to
do, or to continue to do something or to prevent something from being done. This very
concept of easement includes under its ambit an important principle of ‘profits a
pendre’, which actually means– A right to enjoy the benefits arising out of the land[6].
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Example: Where A as an owner has the right of way over the way of the land of another
for purposes which are connected with the beneficial use of his own land then, this can
be termed as an easement. Similarly, in the case of Ganesh Prakash v. Khandu Baksh, it
was held that the right to dry clothes over the flat masonry and roofs of shops is a right
of easement.

It should also be noted that an easement cannot be transferred apart from the dominant
heritage to which by the nature of the right it is attached, and this was held in the case
of Sital v. Delanney.

Sub-section (d)- Restricted Interests

This clause states that a person cannot transfer anything which is interest restricted in its
enjoyment to him. For example- Two brothers partition a property among themselves
and in addition give a right of pre-emption, which means one of them if at all wants to
sell the property should first offer it to the other brother, who would be preferential in
buying it. Here it should be known that these rights are personal rights and cannot be
transferred. And if any such transfers take place such a transfer would be considered
void. In the case of Shoilojanund v. Peary Charon, it was held that a right to receive
voluntary and uncertain offerings at worship are interest restricted to personal
enjoyment and hence, cannot be transferred.

The following kinds of interest can be held non-transferable:

1. Services Tenure

2. Religious Office

3. A right of Pre-emption
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4. Emoluments which are attached to the priestly office. But it should, however,
be noted that the right to receive offerings which are made at a temple is
independent of on obligation to perform services which would involve
qualifications of personal nature, and such rights are transferable.

Sub-section (dd)- Right to Future Maintenance

The sub-section of maintenance, it has been established that a right to future

maintenance is solely for the personal benefit of the person to whom it has been granted
and therefore, this very right cannot be transferred further. Thus an example can be
quoted here regarding the rights of a woman to either receive maintenance from her
husband under a decree or award of the court. Or to receive a share from the property on
the demise of the husband or under a will is a personal right. This right can neither be
transferred nor can it be attached by a court’s decree. And this was held in the case
of Dhupnath v. Ramacharit.

Sub-Section(e)- Mere right to sue

It was in the landmark case of Sethupathi v. Chidambaram, where it was held that a
mere right to sue is something which cannot be transferred. Here the word ‘mere’ itself
means that the transferee has developed no interest than just a bare right to sue.

For Example- A contracts to buy goods from B On due date A fails to take delivery and
B sells the goods in the market at a loss of Rs.10000. B transfers the right to recover the
damages to C. The transfer is invalid.
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Sub-section (f)- Public office

It should be noted in the first place that a public officer cannot be transferred. In the
same fashion, even the salary of the police officer cannot be transferred whether before
or after it becomes payable. The word public officer is meant to be someone who has
been appointed to discharge a public duty, and in turn, receive a monetary return of it
which is in the form of the salary. Here, as the salary becomes something which is given
on return of the personal service of a person, it can neither be transferred or attachable.

In the case of Ananthayya v. Subba Rao, it was held that where there is an agreement
between two people and according to which a person agreed to pay a certain proportion
of his income to his brother in consideration of his having been maintained by the latter,
now in such cases this provision will not be applicable, which was held by the court.

Sub-section (g)- Pensions

Pension is like a salary, it is a sum of money periodically payable by the government

which can be to an ex-serviceman or to a person who has ceased to be in employment.
In the case of Saundariya Bai v. Union of India it was held that pension is non-
transferable, so long as it is unpaid and in the hands of the government. Another
important aspect which should be taken into consideration is that pension is different
from bonus and rewards, and also, on the contrary, these are transferable.

Sub-section (h)- Nature of interest

No transfer can be made insofar as it is opposed to the nature of the interest affected
thereby. Thus, the things which are dedicated to public or religion uses or service inam,
cannot be transferred.
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Transfer for Unlawful object or Consideration – Any transfer which is for an unlawful
object or consideration is not permissible under this section. And it is also in consonance
with section 23 of the Indian Contract Act, which provides that consideration or object
is unlawful if

1. Is Fraudulent

2. It is opposed to public policy

3. It is forbidden by law.

4. Is of such a nature that it defeats the provisions of any law.

Transfer of Person Legally Disqualified– A transfer to a person to be legally disqualified
to be a transferee is not permitted. Under section 7 of the said act, the transferee is
required to be competent to the contract and also should not have been disqualified
legally.

Sub-section (i)- Statutory prohibitions on the transfer of Interest

This section makes it clear that a tenant having an un-transferable right of occupancy
cannot in any way transfer his interest, and this was held in the case of Shanti Prasad v.
Bachchi Devi . But at the same time, this clause even contains an exception to the
general rule which says that all tenancies or leaseholds are transferable. It gives effect to
different enactments whereby it says certain categories of leasehold interests or
tenancies are made non-transferrable. Similarly, where a farmer of an estate, in respect
of which default has been made in paying revenue, cannot assign his interest in the
holding.

CASE LAWS
K.Balakrishnan v K.Kamalam (2004) [with respect to section 6 of Transfer of Property
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Act]
The only substantial question of law involved in this appeal is whether the appellant,
who was minor on the date of execution of the gift-deed dated 24.9.1945, can be held to
have legally accepted the property in suit gifted to him and the said gift-deed was
irrevocable. The appellant shall hereinafter be described as 'the donee' and his deceased
mother as the 'doner.'

On 24.9.1945, mother Devyani-donor executed a registered gift-deed of 1/8th share of

the property inherited by her from her maternal grandfather in favour of her minor son
aged 16 years being the present appellant (donee) and her daughter Kamalam
(respondent No.1 herein) who was aged four years. The 1/8th share of the property
gifted is described in the schedule of gift-deed i.e. one acre and 25 cents of property in
Survey No.7481 & 7482 with school building in Mayyanad Cherry in the State of
Kerala. Under the terms of the gift-deed ownership of the property, half and half, to
each of the two donees was transferred but the donor retained during her life time the
management of the school and the income from the property.

The High Court in the impugned judgment took a contrary view and confirming the trial
court judgment dismissed the suit of the donee holding inter alia that the terms of the
gift-deed do not indicate that any property was transferred thereunder. The High Court
held that when the donor reserved to herself the right to sign the papers with respect to
management of the school and right to take usufruct from the property where the school
is situated, there arose no question of passing over ownership of the property to the
donees, which the donees could accept.

The High Court further went on to hold that the entire right in the property gifted was
reserved by the donor to herself and therefore even when the father had handed over the
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documents to the plaintiff there arose no question of any acceptance of gift made in
respect of the school property. The High Court further held that the same legal position
is in respect of property gifted to the minor daughter and no question of acceptance of
gift arose in respect of that part of the property as well.

Bharat Petroleum Corporation v P.Kesavan (2004) [with respect to section 5 of

Transfer of Property Act]
A deed of lease was executed on or about 22.11.1967 by one Smt. Angammal wife of
Shri Angappa Chettiar in favour of Burmah Shell Oil Storage & Distributing Company
Limited (Burmah Shell) in respect of 23 acres and 16 cents of property/land situated in
the town of Bhavani for a period of twenty years on a quarterly rent of Rs.300/- for the
purpose of "erecting an installation and/or one or more pumps service/ filling stations
together with overhead/underground tanks and other fittings for storage of petroleum
products and such other facilities and buildings as the lessee may require and for
carrying business is such products through such facilities and other kindered motor
accessories or any other trade or business that can conveniently be carried on in the
demised premises". The original lessor allegedly executed a will bequeathing the said
site to her grandson Meenashisundaram, who expired on 3.11.1971 whereafter rent used
to be paid to the guardian and mother of the said Meenashisundaram, Smt. G.
Chellammal.

The appellant herein claimed itself to be a tenant in respect of the said premise relying
on or on the basis of the provisions of the said Act. It is not in dispute that the lessor by
a notice dated 4.2.1987 purported to terminate the tenancy calling upon the appellant
herein to quit and deliver the peaceful and vacant possession as per terms of the lease
dead. In reply to the said notice , the appellant herein in terms of letter dated 26.2.1987
addressed to its advocate invoked the provisions of Sections 5(2) and 7(3) of the Act
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stating that it had no intention to vacate the site on the expiry of the existing lease on
30.6.1987 and wish to continue occupying the same for a period of twenty years from
1.7.1987 by paying the existing rental of Rs.500/- per quarter. By reason of letter dated
19.5.1987, the appellant herein exercised its option to renew the lease for a further
period of twenty years commencing from 1.7.1989 on the same terms and conditions on
which the Burmah Shell held the lease immediately prior to the appointed day.

It was requested :
"May we therefore request you to let us know when it will be convenient for you to have
the lease registered on terms similar to those existing in the current lease. On receipt of
your advice in this matter, we shall take further action."Despite the said letter, the
tenancy was purported to have been terminated and as the appellant did not quit and
deliver possession unto the lessor on expiry of the said period of lease, a suit was filed
in the Court of the District Munsif, Bhawani. It appears that the appellant herein had
also filed a suit for specific performance of contract which was not pressed.
The learned Munsif decreed the suit holding, inter alia, that although in terms of Section
5 of the Act, the lease may be renewed for the same period but as per Section 107of the
Transfer of Property Act, necessary documents had to be executed by the company. An
appeal there against by the appellant herein was dismissed by the District Judge, Erode.
The appellant herein filed a second appeal before the High Court of Madras which was
also dismissed stating
:
"It is clear that the suit filed for renewal of the lease was only subsequent to expiry of
the lease and as such it cannot be said that the affidavit he has taken steps for the
renewal of the lease, especially when he kept quiet for nearly 3 years without taking any
steps, in spite of the filing of the suit by the appellant. It cannot be said that the filing of
the suit can be construed as step being taken for the renewal. When the suit for recovery
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of possession is pending, as soon as filing of suit for renewal of the lease, the appellant
ought to have taken steps for joint trial. He has allowed two suits to be proceeded with,
independently. That means, he wanted to take a chance before both the courts below.
This conduct of the appellant cannot be appreciated. Hence, I do not find any error in
the findings of the Courts below that the appellant has not taken any steps to get the
lease renewed prior to the expiry of the lease. Hence, the second appeal is dismissed.
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2. Discuss the legality of transfer for the benefit of unborn person.

Answer- Section 5 of the Transfer of Property Act, 1882 defines the phrase “transfer of
property”. The section provides that “transfer of property” means 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 than one living persons; and “to transfer
property” is to perform such act. Further provision to the section mentions that “living
person” includes a company or association or body of individuals, whether incorporated
or not, but nothing mentioned here shall affect any law which is operational in India
relating to transfer of property to or by companies, associations or bodies of individuals.

Section 13 of the Transfer of Property Act, 1882 provides that when for the transfer of
property, an interest therein is created for the benefit of an unborn person at the date of
the transfer, a prior interest is to be created in respect of the same transfer and the
interest created for the benefit of such person shall not take effect, unless it extends to
the whole of the remaining interest of the person transferring the property in the
property to be transferred.

Thus, in order to transfer a property for the benefit of an unborn person on the date of
the transfer, it is imperative that the property must first be transferred by the mechanism
of trusts in favour of some person living other than the inborn person on the date of
transfer. In simpler terms, it can be said that the immovable property must vest in some
living person between the date of the transfer and the coming into existence of the
unborn person as the property cannot be transferred directly in favour of an unborn
person.
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In other words it can be said that the interest of the unborn person must in all cases be
preceded by a prior interest. Moreover, when an interest is created in favour of an
unborn person, such interest shall take effect only if it extends to the whole of the
remaining interest of the person transferring the property in the property, thereby
making it impossible to confer an estate for life on an unborn person. The interest in
favour of the unborn person shall constitute all of the entire remaining interest in the
estate.

The underlying principle in section 13 is that a person disposing of property to another

person shall not cause obstruction in the free disposition of that property in the hands of
more than one generation. Section 13 does not apply restrictions on the successive
interest being created in favour of several persons living at the time of operation of the
transfer. What is provided as a restriction under section 13 of the Transfer of Property
Act, 1882, is the grant of interest, limited by time or otherwise, to an unborn person.

Thus, it can be said that if the persons for whose benefit the transfer is to take effect are
living, any number of successive life interests can be created in their favour. However,
an important point to note here is that if the interest is to be created in favour of persons
who have yet not taken birth, then in that case absolute interest must be granted to such
unborn persons.

Essential Elements of Section 13

The essential elements of section 13 have been discussed below. They are as follows:

1. No Direct Transfer
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A transfer cannot be directly made to an unborn person. Such a transfer can only be
brought into existence by the mechanism of trusts. It is a cardinal principle of property
law that every property will have an owner. Accordingly, if a transfer of property is
made to an unborn person, it will lead to a scenario wherein the property will remain
without an owner from the date of transfer of property till the date the unborn person
comes into existence.

2. Prior Interest

If the circumstances are such that there is no creation of trust, then in that case the estate
must in some other person between the date of transfer and the date when the unborn
person comes into existence.In simpler words we can say that the interest in favour of an
unborn person must always be preceded by a prior interest created in favour of a living
person.

3. Absolute Interest

The entire property must be transferred to the unborn person. The transfer to an unborn
person must be absolute and there should be no further transfer from him to any other
person. An interest which remains only for the lifetime cannot be conferred on an
unborn person. Under the English law, an unborn person can be conferred an estate only
for his lifetime. This concept of English law, however, is subject to a restriction known
as the rule of double possibilities. This rule was recognised in the case of Whitby
Mitchell. The rule states that life interest to an unborn person should not be transferred
as doing so will give rise to existence of two possibilities. The first possibility will be
the birth of the unborn person to whom the life estate was to be transferred and the
second possibility will be the coming into existence of issues of that unborn person.
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Thus, the transfer of property to an unborn person can be permitted only if the absolute
interest is transferred and not just the life estate.

Illustration - “A” owns a property. He transfers it to “B” in trust for him and his
intended wife successively for their lives. After the death of the survivor, it is to be
transferred to the eldest son of the intended marriage for his life, and after his death, it is
to be transferred to A’s second son. The interest so created for the benefit of the eldest
son does not take effect because it does not extend to the whole of A’s remaining
interest in the property.

When an Unborn Person Acquires Vested Interest

The provisions of section 20 of the Transfer of Property Act, 1882 mention the concept
that in what circumstances unborn person acquires vested interest. Unborn person may
not be able to enjoy the possession of property as soon as he is born but he may,
however, acquire a vested interest in the property since his birth. Where, on a transfer of
immovable property interest is created for the benefit of an unborn person, he acquires
upon his birth, a vested interest, although he may not be entitled to the enjoyment
thereof immediately on his birth.The mentioned provision however may be waived off if
the terms of the agreement mention a contrary clause.

The section lays down that an interest created for the benefit of an unborn person vests
in that unborn person as soon as he is born. Such interest remains vested interest even
though he may not be entitled to the enjoyment thereof immediately on his birth.

For example, if “A” transfers an estate to trustees for the benefit of A’s unborn son with
a direction to accumulate the income of such estate for a period of ten years from the
date of the birth of A’s son and then to hand over the funds to him. A’s unborn son
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acquires a vested interest upon his birth, although he is not entitled to take and enjoy the
income of the property for a period of ten years.

Views of the Apex Court in Reference to the Transfer to Unborn Person

The Supreme Court of India in various cases from time to time has interpreted the
provisions of the Transfer of Property Act,1882 in respect of the transfer of property
done for the benefit of unborn persons. In the famous case of Girjesh Dutt vs. Datadin,
the Apex Court made important observations. Facts of the case enumerate that “A”
made a gift of her properties to “B”, who was her nephew’s daughter. The gift made by
A was made for the life of B and then to B’s daughter without power of alienation and if
there was no heir of B, whether male or female, then to A’s nephew. B died without
having any children. Thus considering the facts of the case, the court held that the gift in
favour of unborn daughters was invalid under Section 13 as the gift was a limited
interest and also subject to the prior interest in favour of B.

Another case related to this concept is of Raja Bajrang Bahadur Singh v. Thakurdin
Bhakhtrey Kuer. In the instant case the Apex Court had observed that no interest can be
created in favour of an unborn person but when the gift is made to a class or series of
persons, some of whom are in existence and some are non existent, it does not fail
completely, it is valid with respect to the persons who exist at the time of testator’s
death and is invalid with respect to the rest.

Leading case law

Girjesh Dutt vs. Data din

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Facts:
A made a gift of her property to her nephew’s daughter B for life and then absolutely to
B’s male descendants if she should any, but in the absence of any male child of B, to
B’s daughter without power of alienation and if B has no descendants male or female
then to her nephew. B died issueless.
Held:
The court held that the gift for life to b was valid because B was living person at the date
of transfer but gift in favor of B’s daughter was void under sec 13 of transfer of property
act because it was given only limited interest she had not given absolute interest .since
this transfer was invalid the subsequent transfer depending on it also failed.

Applicability under Hindu law and Muslim law

Under pure Hindu law, a gift or bequest in favor of an unborn was void. But now, since
transfer of property act is applicable on Hindus, the transfer in favor of an unborn
person is valid if it is made subject to the provision of section 13 of the act.

Since section 2 of TPA provides that “nothing shall be deemed to affect any rule of
Mohammedan law”, section 13 is not applicable to transfers made by Muslims.
However, under Muslim law too a gift in favor of a person not in existence has been
held void.

Indian succession Act, 1925:

Section 13 is almost identical with section 113, Indian succession act, 1925 the
difference between the two sections is that the formal relates to transfer inter vivo, while
the latter deals with bequest which take effect only on the death of the testator. Section
13 controls section 113 and therefore, both these section read together.
Conclusion
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Thus from the above discussion it is clear that the transfer of property can be executed
in respect of unborn persons. Though, the transfer cannot be operated directly but it can
be executed indirectly by the machinery of trusts. In other words, the interest in favour
of the unborn person shall constitute the entire interest in that particular immovable
property. The underlying fundamental principle enshrined under section 13 of the
Transfer of Property Act is that a person disposing off property to another person shall
not create hurdles for the free disposition of that property in the hands of one or more
generations.

Thus, for the validity of a transfer in favour of an unborn person, it is important that the
whole of the remaining interest of the person transferring the property should be
conveyed to the unborn person. Moreover, as soon as the transfer of property comes into
operation, the vested interest is also transferred to the unborn person. The transfer of
immovable property to unborn persons can, thus take effect only according to the
provisions discussed above. Else, the transfer will be declared as void.