Transfer of Property : concept and what kind of property can be transferred (Sec-5 & 6)

The objective of the Transfer of Property Act (TP), 1882, which went into force on July 1, 1882 and was named after its initials, is the transfer of property between living persons. The Transfer of Property Act is an extension of the law of contracts and parallels the succession regulations. It is one of the oldest laws in the legal system and has existed for a considerable amount of time. Individuals who intend to transfer their immovable property must be intimately aware with the fundamental sections of the Transfer of Property Act.

Sec-5. “Transfer of Property” defined:

Transfer of property is defined under Section 5 of the Transfer of Property Act, 1882. It means that a living person gave property to one or more other living people or to himself or to one or more other living people in the past, present, or future. A corporation, an organization, or a group of persons, whether or not they are incorporated, are considered living people.

Section 5 of the Act defines “Transfer of Property” as an act by which a live person conveys property to one or more living individuals, or to himself or himself and one or more other living persons, in the present or future. The property can be moveable or immovable, current or future, and the transfer can be performed orally, unless a written transfer is required by law. Any person competent to contract and entitled to transferable property, or permitted to dispose of transferable property on his own, has the right to transfer such property in whole or in part, unconditionally or conditionally.

The Transfer of Property Act is mostly about the transfer of real estate. Sale of Goods Act, 1930 governs things that can be moved. As a result, it is necessary to comprehend what constitutes moveable and immovable property, as well as how to discern between the two. The word “property” refers to any interest or right that has a monetary value.

★ Property broadly classified into:

1. Movable property 
2. Immovable property

The term “Immovable Property” appears in several Central Acts. None of those Acts, however, provide a definitive definition of this word. The Transfer of Property (TP) legislation is the most essential act governing immovable property. This phrase is described in exclusive terms even in the TP Act. The Transfer of Property Act does not define immovable property. What is “included” as immovable property is not specified in the definition.

• Section 3 of the Transfer of Property Act states that “Immovable Property” does not include standing wood, growing crops, or grass. As a result, the word is explained under the Act by restricting specific things. Standing wood refers to trees that are suitable for use in the construction and repair of buildings. Growing crops include all vegetable growths that exist only for their product, such as pan leaves and sugarcane. Similarly, grass is a moveable property that can only be use as feed.
• Immovable property, according to Section 3(25) of the General Clauses Act 1897, “must comprise land, advantages arising from land, and objects fixed to the earth, or permanently fastened to anything attached to the earth.” This definition of immovable property refers exclusively to physical items and does not provide a comprehensive test of what is and is not immovable property.

The term immovable property includes three tings namely:

1. Land
2. Benefits arising out of land &
3. Things attached to earth.

• The Registration Act, 1908 Section 2(6) provides the following definition of “Immovable Property”: “Immovable Property comprises land, buildings, hereditary allowances, rights of ways, lights, ferries, fisheries, or any other advantage to emerge out of land, and items fixed to the soil or permanently fastened to anything which is attached to the earth, but does not include standing wood, growing crops, or grass.”

In essence, land includes–

1. Earth’s surface
2. Earth’s surface covered by water
3. Objects placed by human agency with the intention of permanent annexation (e.g.: buildings, fences, walls)
4. Ground beneath the surface: In its natural state (e.g.: Minerals)

“Attached to the earth” means:

(a) rooted in the earth, as in the case of trees and shrubs (except standing timber, growing crops, and grass)

(b) imbedded in the earth, as in the case of walls or buildings

(c) attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached (e.g.: doors, windows, ceiling fans, etc.). However, ornamental and decorative fittings, festivals, and electric equipment are not included in this description since they are not permanent but just transitory and occasional, and they are not useful to the wall or doors in any way. As a result, these are not immovable property.

Sec-6. What may be transferred:

According to Section 6 of the Transfer of Property Act of 1882, any kind of property can be transferred, except where this Act or any other law in effect says otherwise:

1. The possibility of an heir-apparent inheriting an inheritance, the possibility of a relative receiving a transfer upon the death of a relative, or any other possibility of a similar sort cannot be transferred.

An example can be used to explain the concept of Spes Succession. A family consists of father F and son S, with F being the owner of the property and no one else, including his son, being permitted to sell the land without his authorization. If F dies intestate, s will receive his property, and hence S is the Heir Apparent in this case. S’s future inheritance to the property is a possibility for two reasons[1].

At begin, because F owns the property, he may sell it, dispose of it in any way he sees fit, or make a will in someone’s name. Nothing will ever be left for S.

Second, son S dies during his father’s lifetime. Thus, if S transfers the property without his father’s approval during his father’s lifetime, the transfer is void ab initio and expressly banned by the statute. The court stated in the case of Official Assignee, Madras v. Sampath Naidu[2] that a mortgage executed by an heir apparent is void even if he later inherited the property as an heir. As a result, it can be deduced from above that the transfer of spes succession is void from the start.

• A simple right of re-entry for possession of a subsequent condition cannot be transferred.

The right of re-entry refers to the right to reclaim possession of land that had previously been granted to another person for a certain period of time. And re-entry is commonly seen in leases, which allow the lessor to re-enter the demised premises if the rent is late for a particular period of time or if there is a breach of conditions in the lease.

• Apart from the dominant heritage, an easement cannot be transferred.

An easement is a right that the owner or occupier of specific land has in his possession for the beneficial enjoyment of that land, or it may be to do, continue to do, or prevent something from being done.

The right to dry clothes over flat masonry and shop roofs was declared a right of easement in the case of Ganesh Prakash v. Khandu Baksh[3].

• All property interests that are restricted in their enjoyment to the owner personally cannot be transferred by him.

This section specifies that a person may not transmit anything to him that is interest limited in its enjoyment. For example, two brothers divide a property among themselves and provide a right of pre-emption, which implies that if one of them wishes to sell the land, he must first offer it to the other brother, who will be preferential in purchasing it. It should be noted that these are personal rights that cannot be transferred. And if such transfers occur, they will be considered invalid and void.

• A right to future maintenance cannot be transferred, regardless of how it came to exist, was secured, or was determined.

It has been held that a right to future maintenance is purely for the personal benefit of the person to whom it is awarded and hence cannot be transferred further.

• A mere right to sue cannot be transferred.

It was in the landmark decision of Sethupathi v. Chidambaram[4] that it was determined that a mere right to sue cannot be transferred. The term ‘mere’ signifies that the transferee has formed no interest other than a basic right to sue.

• A public post or a public officer’s salary cannot be transferred, whether before or after it becomes payable.

First and foremost, it should be emphasized that a public officer cannot be transferred. Thus, the salary of a police officer cannot be transferred, whether before or after it becomes payable. The term “public officer” refers to someone who has been appointed to perform a public obligation in exchange for a monetary reward in the form of a salary. In this case, because the salary is paid in exchange for a person’s personal service, it cannot be transferred or attached.

• Stipends granted to government military, navy, air force, and civil pensioners, as well as political pensions, cannot be transferred.

Pension is similar to a salary in that it is a sum of money paid by the government on a regular basis to an ex-serviceman or a person who has ceased to be employed. In the case of Saundariya Bai v. Union of India[5], the court ruled that pensions are non-transferable as long as they are unpaid and in the hands of the government. Another key factor to consider is that pensions are distinct from bonuses and awards, which are not transferrable.

1. No transfer may be made (1) if it is contrary to the nature of the interest concerned, (2) for an unlawful object or consideration as defined in section 23 of the Contract Act of 1872, or (3) to a person lawfully disqualified to be transferee.

No transfer may be affected if it is contrary to the nature of the interest affected. As a result, objects committed to public or religious use cannot be transferred.

Transfer for an Illegal Object or Consideration – Any transfer for an illegal object or consideration is prohibited by this provision. It is also consistent with Section 23 of the Contract Act, which states that consideration or object is illegal if:

1. It is forbidden by law.
2. It is of such a nature that, if permitted, it would defeat the provisions of any law.
3. It is fraudulent.
4. It involves or implies injury to the person or property of another.
5. The Court regards it as immoral, or opposed to public policy.

---

Reference

---

[1] Samsuddin v. Abdul Husein, (1906) 31 Bom 165.

[2] AIR 1933 Mad. 795

[3] AIR 1918 Oudh 296

[4] AIR 1938 PC 126

[5] AIR 2008 MP 227

---

Author: Tahmid Parvez

Department of Law,

Metropolitan University Bangladesh.