What May Be Transferred (Section 6) — Spes Successionis, Mere Right to Sue, and Other Bars

Section 6 of the Transfer of Property Act, 1882 opens with a sweeping declaration: property of any kind may be transferred. It then lists nine exceptions, lettered (a) to (i). The architecture is doctrinally important — transferability is the rule, untransferability is the exception, and the burden of proving that any kind of property is not transferable lies on the person so alleging. The Supreme Court has reiterated that an embargo on the right to transfer is not lightly inferred: the right of transfer is incidental to ownership itself, and can be curtailed only by reason of a statute.

This chapter takes each of the nine clauses in turn. Several are short and largely self-contained — clauses (b), (c), (f), (g), (i). Two carry the doctrinal weight of the section — clause (a) on spes successionis and clause (e) on the mere right to sue. Clause (h), in three sub-parts, doubles as an entry point to Section 23 of the Indian Contract Act, 1872 and to the doctrine that no transfer can be made for an unlawful object or consideration.

The General Rule and the Statutory Scheme

The opening words of Section 6 — "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" — locate the source of every restriction on transferability either in the TP Act itself or in some other statute (a Hindu coparcenary rule, the Mahomedan law of wakf, a tenancy code, a service-tenure regulation). Some of the exceptions in Section 6 mirror exceptions in Section 60 of the Code of Civil Procedure, 1908 to attachment in execution — a service tenure, a right to future maintenance, a public office, a pension. But decisions under the CPC are not always a safe guide for transferability under Section 6: a private alienation may be made of property the attachment of which is forbidden, for example, the tools of artisans.

The provision applies only to existing property. Future property is not "property of any kind" within the meaning of Section 6 — a transfer of future property can only operate as a contract that may be specifically performed when the property comes into existence. The bar on the transfer of future property is doctrinally distinct from the bar on the transfer of spes successionis: the former says that one cannot transfer that which does not yet exist as property; the latter says that one cannot transfer the bare expectation of becoming an owner.

Clause (a) — Spes Successionis

Clause (a) bars the transfer of "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." The bar is not on contingent interests — those are transferable, as the chapter on vested and contingent interests shows. The bar is on bare possibilities. The Privy Council, contrasting the contingent interest of a beneficiary with the bare chance of an heir, observed that a contingent interest "is something quite different from a mere possibility of a like nature of an heir-apparent succeeding to the estate, or the chance of a relation obtaining a legacy, and also something quite different from a mere right to sue. It is a well-ascertained form of property."

Heir-Apparent and the English Position

An heir-apparent is a person who would be the heir if he survived the propositus and if the propositus died intestate. In English law no one can have any estate or interest, contingent or other, in the property of a living person to which he hopes to succeed as heir-at-law or next of kin. He has only a spes successionis — an expectation or hope of succeeding to the property. The chance of a Mahomedan heir succeeding is, on the same logic, a mere spes successionis, and cannot be the subject of a transfer or a release.

Hindu Reversioner

By Hindu law, the right of a reversionary heir expectant on the death of a Hindu widow is a spes successionis, and its transfer is a nullity. The Privy Council in Amrit Narayan v Goya Singh (1918) ILR 45 Cal 590 stated the position with classic clarity: "A Hindu reversioner has no right or interest in praesenti in the property which the female owner holds for her life. Until it vests in him on her death, should he survive her, he has nothing to assign or relinquish or even to transmit to his heirs. His right becomes concrete only on her demise; until then it is mere spes successionis." The amending Act 20 of 1929 made Section 6(a) directly applicable to Hindus.

The doctrinal complication is the Supreme Court's decision in Jumma Masjid v Kadimaniandra Devaiah AIR 1962 SC 847. There the Court held that the principle of feeding the estoppel recognised in Section 43 of the TP Act applies to a transfer by a reversioner who has only a chance of succeeding, where he represented to the transferee that he was absolutely entitled and where the transferee acted on the representation in good faith. Section 43 cannot, of course, apply where the transferee knew the facts; but where the transferee was unaware and acted on a fraudulent representation, the equitable doctrine of feeding the grant by estoppel rescues the transferee. The reconciliation, sometimes missed in examination answers, is that the transfer of the reversion remains void under Section 6(a); Section 43 operates not on the void transfer itself but on the transferor when title later vests in him.

Mahomedan Law and the Estoppel Workaround

The transfer of an expectancy is invalid under Mahomedan law as well, on grounds independent of Section 6(a). The bar is doctrinally explained on the footing that Muslim law does not recognise spes successionis as a transferable right. Yet the bar interacts with the doctrine of estoppel in the same fashion as it does for Hindus. The Supreme Court in Shehammal v Hassan Khan Rawther AIR 2011 SC 3709 held that where a Muslim heir-apparent executes a deed of relinquishment after receiving consideration for a future share, the deed operates as an estoppel against the executor and bars him from setting up the doctrine of spes successionis after the inheritance opens. The Court grounded the conclusion on three steps: (i) such a relinquishment is not a transfer in the technical sense and so does not violate Section 6(a); (ii) it is supported by consideration; and (iii) allowing the heir to take the consideration and then claim the share would be against public policy. Hameed v Jameela AIR 2010 Ker 44 had earlier reached a similar result on similar facts.

Chance of a Legacy and Other Possibilities

The chance of a relation or friend receiving a legacy is even more remote than the chance of an heir, and equally non-transferable. The classic illustration is the fisherman's net — there is no certainty that any fish will be caught, and the fisherman has no interest in the fish until they are caught. Future wages of a servant before they are earned, a vendor's interest in the purchase money before the sale is completed, an agreement for the sale of karnam lands, a customary right to scavenge — all are bare possibilities and within Section 6(a). Yet the right to receive offerings at a sacred shrine, like the offerings at Shri Vaishno Devi Ji, has been held to be a definite, valuable and tangible right, not a mere possibility — the right is heritable and outside the bar.

Clause (b) — Mere Right of Re-entry

A "mere right of re-entry" refers to the lessor's right to re-enter the property on breach of an express condition by the lessee — the right referred to in Section 111(g). The right of re-entry implies an estate of reversion, and cannot be transferred apart from the estate to which it belongs. The transfer of the lessor's interest carries the right of re-entry with it; the transfer of the right of re-entry alone, severed from the reversion, is void as a personal licence. The English illustration is Re Davis & Co, ex parte Rawlings [1889] 22 QBD 193 — a hire-purchase bailor's assignment of the right to re-enter and seize the goods on default was held to be a personal licence, not assignable. The full doctrinal treatment of how the lessor's interest works is in the chapter on leases of immovable property.

Clause (c) — Transfer of Easement

An easement, defined in Section 4 of the Indian Easements Act, 1882, is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land. An easement cannot be detached from the dominant heritage; it passes with the dominant heritage as a legal incident. There cannot be an easement in gross. The line between easement, lease, and licence — often tested in examinations — is drawn in the chapter on easements vs lease vs licence. Section 6(c) bars the transfer of an existing easement apart from its dominant heritage, but does not bar the grant of an easement; the grant of an easement is governed by Sections 8 to 18 of the Indian Easements Act.

Clause (d) — Restricted Interests

An interest restricted in enjoyment to the owner personally is by its very nature non-transferable. The clause covers a mixed class:

1. Religious offices. The office of a shebait of a temple, the mahanship of a math, the office of mutwalli of a wakf, a vritti, the right of a village joshi to perform religious ceremonies, hire khakrobi rights — all are restricted interests and not transferable.
2. Service tenures. Land held on service tenure — ghatwal in Bengal, watan in Bombay, karnam in Madras, palyan in Madras — is inalienable in the hands of the holder. The Privy Council in Nilmoni Singh v Bakranath Singh (1882) confirmed that such land cannot be sold in execution of a decree against the holder. Once the land is freed from its connection with the public office (by abolition of the service or by commutation), the inalienability falls away.
3. Right of pre-emption. The right of pre-emption is a personal right whose object is to prevent the introduction of strangers as co-sharers. It cannot be transferred to anyone except the owner of the property affected by it. A pre-emptor who anticipates success and transfers the property in advance forfeits his right of pre-emption.
4. Personal contracts. A contract whose performance depends on the personal qualifications of the contracting party (an indigo-cultivation contract, a salt-manufacture contract) is non-assignable. This category overlaps with — but is doctrinally distinct from — the bar on the assignment of a mere right to sue under clause (e).

Clause (dd) — Right to Future Maintenance

Inserted by the amending Act of 1929, clause (dd) bars the transfer of a right to future maintenance "in whatsoever manner arising, secured or determined." The amendment ended a conflict between the Madras and Calcutta High Courts on whether a decree for future maintenance was assignable. The position now is uniform: arrears of maintenance already accrued are a debt and assignable; future maintenance, in whatsoever form, is not. A vested life interest under a will in a definite fund or income of a property is, however, transferable — it is not future maintenance but a defined property interest. An annuity under a will is similarly transferable; the courts have read the words "in whatsoever manner arising, secured or determined" broadly enough to catch anything that operates substantively as future maintenance, even if dressed as a charge.

Clause (e) — Mere Right to Sue

Clause (e), as it stands after the amending Act 2 of 1900, bars the transfer of a mere right to sue. The Supreme Court in Union of India v Sri Sarada Mills Ltd stated the rule and the rationale together:

The Andhra Pradesh High Court in Gangaraju v Gopala AIR 1957 AP 190 expressed the same idea — the bar exists because such transactions savour of champerty and maintenance, and the moment a right of action is incidental or subsidiary to a conveyance of property, it ceases to be a bare right and becomes assignable.

Mere Right to Sue Distinguished from Actionable Claim

The line between a mere right to sue and an actionable claim is the most-tested distinction under clause (e). An actionable claim is property — the assignee has a right to sue to enforce the claim. B cannot sue for a debt due to A; but if A assigns the debt to B, then B may sue to recover it as a debt due to himself. After breach of contract, what is left is a right to sue for damages, and that is not transferable. Before breach, the benefit of an executory contract may be transferred, and the buyer has a right to sue for the goods. The right to mesne profits is a mere right to sue (mesne profits being unliquidated damages, not a debt) and is not transferable; but a sale of land accompanied by an assignment of mesne profits already accrued due is valid as the assignment of a definite money claim. A decree for mesne profits — having merged the right of suit in a judgment — is itself assignable.

Clause (f) — Public Office and Salary

A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable. The principle, drawn from Grenfell v The Dean and Canons of Windsor, is that the salary of a public office is given for the upholding of its dignity and the proper performance of its duties; transferability would defeat that public interest. The bar covers civil offices, religious offices held as public offices, and village offices. It does not cover a gratuity payable to the legal representative of a public officer; such a gratuity is not the salary of the office and is assignable. A railway servant cannot agree to the attachment of a part of his salary, because the salary is in the same protected class.

Clause (g) — Pensions

Stipends allowed to military, naval, air-force and civil pensioners of the Government, and political pensions, are non-transferable. The classic definition (drawn from Secretary of State v Khemchand Jeychand) is that a pension is "a periodical allowance or stipend granted, not in respect of any right, privilege, perquisite, or office, but on account of past services or particular merits or as compensation to dethroned princes, their families, and dependants." A bonus, a reward, a grant of land or land revenue even though in lieu of pension, a jagir, an allowance in lieu of a presumed grant of lands — none of these is a pension within Section 6(g), and each is therefore transferable.

The character of a pension is preserved only so long as it is unpaid and in the hands of the government. Once paid out to the pensioner, his legal representative, or agent, the money loses its character as a pension and may be attached or transferred like any other money. Private pensions, and pensions granted to railway servants, fall outside the bar — they may be attached and sold.

Clause (h) — Three Sub-clauses

Clause (h) is the catch-all. It contains three sub-clauses, each anchoring a different doctrinal idea:

1. Sub-clause (1) — opposed to the nature of the interest affected. Things that are res communes (light, air, water of rivers and the sea) and things that are res extra commercium (debutter property, regalia, heirlooms) cannot be transferred. The test, where the interest is held burdened with service, is whether the holder has placed himself beyond the reach of his office's income.
2. Sub-clause (2) — for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872. The provision imports the entire Section 23 jurisprudence — a transfer is void if its object or consideration is forbidden by law, defeats the provisions of any law, is fraudulent, involves injury to person or property, is immoral, or is opposed to public policy.
3. Sub-clause (3) — to a person legally disqualified to be a transferee. Section 136 disqualifies a judge, legal practitioner, or officer connected with a court from purchasing an actionable claim; Order XXI Rule 73 CPC disqualifies any officer connected with a sale from acquiring an interest in the property sold.

Sub-clause (2) — Unlawful Object or Consideration

The line between consideration and motive matters. The Supreme Court in Nagaratnamma v Ramayya AIR 1968 SC 253 held that a transfer motivated by past cohabitation is without consideration and is therefore a gift, not hit by Section 6(h)(2). A transfer of immovable property to a sex worker for future illicit intercourse, however, is void as a transfer for an immoral consideration; on the same logic a gift made conditional on continued immoral relations is void. Where possession has been delivered under a transfer void for unlawful consideration, the general rule is in pari delicto potior est conditio possidentis — the court will not assist either party. Section 84 of the Indian Trusts Act, 1882 lists three exceptions: where the illegal purpose is not carried out (locus paenitentiae); where the transferor is not as guilty as the transferee; and where allowing the transferee to retain the property would defeat the provisions of any law. Within these exceptions, the transferee holds the property for the benefit of the transferor.

Sub-clause (3) — Minor as Transferee

A minor's contract is void, but a minor is not disqualified to be a transferee. A minor may be a purchaser or a mortgagee. But neither the guardian nor the manager of a minor can bind the minor or his estate by a contract for the purchase of immovable property. A lease to a minor is void, because a lease imports a covenant by the minor to pay rent — Section 107 makes the position clear by requiring execution by both lessor and lessee. The chapter on persons competent to transfer develops the corresponding rule on the transferor's capacity under Section 7.

Clause (i) — Tenant with Untransferable Right of Occupancy

Clause (i), added by the amending Act 3 of 1885, is identical with the proviso to Section 108(j). It prevents 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, from assigning his interest. The clause works alongside local Tenancy Acts (the North-Western Provinces Rent Act, 1878; the Agra Tenancy Act, 1901; the Bengal Tenancy Act, 1885; the Oudh Rent Act, 1886) and various agrarian-reform statutes that restrict or prohibit transfer of agricultural lands. Where a tenant of a non-transferable holding executes a usufructuary mortgage and abandons the village, the holding is treated as abandoned, and the landlord is entitled to treat the mortgagee as a trespasser.

Property of Any Kind — Some Borderline Cases

The opening words of Section 6 — "property of any kind" — have been read to include rights such as trademarks, copyrights, patents, and personal rights capable of transfer or transmission such as debts. They include actionable claims; they include the right to a reconveyance of land. They do not include future property; that can only operate as a contract. Statutory rights of claimants to compensation, once they crystallise on assessment and verification, are property and survive the death of the claimant — confirmed by the Supreme Court in UOI v Iqbal Singh (1976) 1 SCC 570. The line between an existing interest and a bare possibility is the line between Section 6 and Section 6(a) — and is also the line between transferability and non-transferability of future immovable property contracts under the chapter on sale.

Leading Authorities

The doctrinal trunk of Section 6 rests on a small set of decisions. Amrit Narayan v Goya Singh (1918) ILR 45 Cal 590 (PC) settled that a Hindu reversioner's right is a spes successionis and not transferable. Jumma Masjid v Kadimaniandra Devaiah AIR 1962 SC 847 settled that the principle of feeding the estoppel applies even where the transferor was a reversioner with only a chance of succeeding. Shehammal v Hassan Khan Rawther AIR 2011 SC 3709 settled that a Muslim heir-apparent's deed of relinquishment, supported by consideration, operates as an estoppel and is not invalidated by the Mahomedan rule against the transfer of expectancy. Union of India v Sri Sarada Mills Ltd settled the rule and rationale on the bar against transfer of a mere right to sue. Nagaratnamma v Ramayya AIR 1968 SC 253 settled the consideration-versus-motive distinction under Section 6(h)(2). UOI v Iqbal Singh (1976) 1 SCC 570 settled that crystallised statutory compensation rights are property and outlive the claimant. The chapter on landmark cases on TPA traces these decisions in the larger doctrinal arc of the Act.

Reading Section 6 with Section 7 and Sections 10 to 12

Section 6 governs what can be transferred. Section 7 — the next section — governs who can transfer. Sections 10 to 12 govern the validity of conditions restraining alienation and repugnant conditions. The three blocks together form the gating logic of every transfer. A transfer fails at Section 6 if the property is in one of the nine non-transferable classes; it fails at Section 7 if the transferor lacks capacity or title; it fails at Sections 10 to 12 if the transferor seeks to attach a void condition to a transfer that is otherwise good. An exam-aspirant must apply the three filters in order: classify the property, classify the transferor, classify the conditions.