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CRITICAL ANALYSIS ON SECTION 6 OF TRANSFER OF PROPERTY ACT
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 reality of the property is based on the maxim alienation rei prefecture Juri accrescent and the meaning of the maxim goes like this- Law favors alienation to accumulation. Therefore, it should be noted that any action made to interfere with the powers of the owner to alienate his interest in the 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 in the present or in the future, to one or more other living persons and here living person an be a company or an association or can even be a body of individual. Meaning of property has also be defined in the said act, and this is done by rather giving a wider spectrum to the word property which includes material things like houses land, etc. and certain right pertaining to property which cannot be excursive over materials, which can be the right to a repayment of the debt.
CRITICAL ANALYSIS
The broadcast aims to provide a difference between the different types of property that is the 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 61 of the code of the criminal procedure.
In the first place, this article would focus the provision 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 be backed by the significance 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 even by any other law for time being in force, and these exceptions will be discussed in detail in the following subsections.
Sub Section (a)- Transfer of spes succession
The concept of Spes- Succession can be explained with the help of an example- A family of the consist of F and son S, F being the owner of the property has the ownership with him during his lifetimes 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 could be said that S is the heir apparent. Here S’s succession to the property in the future is a chance due to main reasons.
Firstly, as F is the owner of the property, he may sell it, dispose of t in any manner he thinks, or make a will someone’s favors. Eventually, nothing will be favored. Eventually, nothing will be left for S.
Secondly, son S dies during the lifetime and no one else including his son is allowed to sell the property has the ownership him during his lifetime and no one else including his son is allowed to sell the property, without his consent. Now, if F dies interested S would inherit his property, and hence, here it can be said that S is the heir apparent.
Here, S, succession to the property in the future is a chance due to the main reasons.
Firstly, as F is the owner of the property, he may sell it, dispose of t any manner he thinks, or make a will in someone’s favors. Eventually, nothing will be left for S.
Secondly, son S dies during the lifetime of his father transfers the property without the father’s consent then the transfer would be void intio and is also expressly prohibited by the act. In the case of an official assignee, Madra v. Sampath Naidu it was observed by the court that a mortgage executed by an heir apprehend 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 intio.
SUBSECTION (b) – RIGHT OF RE-ENTRY
The right of reentry 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 upon the demised premises if the rent is in the arrear of a certain period or if there is a breach of convents in the lease.
Re Davis company in the case A purchased certain goods from B, which was on purchase also pay the installments B would enter A premise and take the possession to be noted here is that the right to enter is a personal right of B and the in any case, if he transfers this right to entry, to his creditors or anyone, then the same would be void.
SUBSECTION (C) EASEMENT
An Easement can be quoted as a right which the owner of the occupier of certain land in his enjoyment of said land, or it may even be to do prevent something from being done.
This very concept of easements includes under its ambit an important principle of Profit in pendre which actually means. A right to enjoy the benefits arising out of the land.
SUBSECTION (d)- RESTRICTED INTEREST
This clause states that a person cannot transfer anything which restricted in its enjoyment to him. For e.g.- 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 be the other brother who would be preferential in biting it.
Here it should be known that these rights are personal rights and cannot be transferred. And if any such transfers take place such transfers would be considered void. In the case of Shoilojanmund V. Peary Charon, it was held that a right to receive voluntary and uncertain offerings at worship is interest restricted to personality enjoyment and hence, cannot be transferred.
The following kinds of interests can be held non- transferable:
- Service Tenure
- Religious Office
- Aright to preemption
- 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 an obligation to perform services which would involve qualifications of personal nature, and such subjects are transferable.
SUBSECTION (dd) RIGHT TO FUTURE MAINTAINANCE
The subsection of maintaining ace, it has been established that a right to future maintains 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 the women to either active maintains from, her husband under the husband or under a will, a personal right. this right can either by the court’s decree of Dhupnath. And this was held in the case of Dhupnath vs. Ramacharit.
SUBSECTION (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 that cannot be transferred. Here the word mere itself means that the transferee has developed no interest than just a bare right to sue.
For e.g.- A contract to buy goods from B on due date A fails to take delivery and B seals 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.
Sub Section (f)- Public Office
It should be noted in the first place that a public officer cannot be transferred. In the Sam fashion, even the salary of the police officer cannot be transferred whether before the after it becomes payable.
The word is been appointed to discharge a public duty, and in turn, receive a monetary return of it is the form of the salary there as the salary becomes something which is given on return of the personal service of a person, it can either be transferred or attachable.
In the case of the Anathayya vs. Subha Rao, it was held that where there is an agreement between two people and according to which a person agreed to pay a certain position of his having been maintained by the latter, not be in such cases this provision will not be applicable, which was held by the court.
SUB SECTION (g)- Pensions
Pension is like 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 employment. In the case of Saundariya Bai v. Union of India it was held that pension is non-transferable so long it is unpaid and in the hands of the government.
Another important except which should be taken into consideration is that pension is different from bonuses and rewards and also, on the contrary, these are transferable.
SUBSECTION (h) NATURE OF INTEREST
No transfer can be made in so far as it is opposed to the nature of the interests affected thereby.
Thus, the things that are dedicated to public or religious uses or service imam, cannot be transferred.
SUBSECTION (i) -STATUTORY PROHIBITIONS ON THE TRANSFER OF INTREST
This section makes it clear that a tenant having an untransferable right of occupancy cannot in any way transfer his interest and this was held in the case of Shanti Prasad vs.
Bacchi 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 not says certain categories or leasehold interest or tenancies are made non- transferable.
CONCLUSION
As it can be said that the following research paper dealt with the topic of section 6 property act in detail with the addition of case laws in order to explain the different clauses involved in the section.
In addition, to this, there were even illustrations and examples given which in fact make it for the batter understanding of the numerous clauses involved and connected with section 6 of the transfer of property act. In the legal arena, it becomes of para amount importance for the parties and the lawyers to a detailed understanding of these above discussed clauses and provisos. And finally, the paper has even attempted to touch the area of the clause which had certain significant exceptions.
