Transfer of Property Act (TPA)
Restricted Interest under Section 6(d): An Interest Restricted in Its Enjoyment to the Owner Personally
Some interests are given to a man because he is that man. A religious office is held because its holder is fit to perform the worship; a right of residence is granted so that a particular widow shall have a roof; land on a service tenure is held on the terms that its holder will render the service. Section 6(d) says that an interest of this kind cannot be transferred. The clause is short and the principle is easy, but it sits next to section 10 and is constantly confused with it, because both deal with interests that cannot be alienated — for opposite reasons.
Figure 1: Interests tied to the person of the holder, interests that are free to move, and the distinction that separates them
1. The Clause
Section 6(d), TPA 'An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.' |
Two features of the wording repay attention. First, what is restricted is the enjoyment, not merely the power of alienation. Second, the restriction must attach to the owner personally — an interest limited in time, such as an ordinary life interest, is not within the clause, because anyone may enjoy it for as long as it lasts.
2. What Falls Within the Clause
Interest | Why it is personal |
|---|---|
A religious or spiritual office — shebait, mutawalli, pujari, dharmakarta | The office is held for the performance of duties that the law regards as personal to the holder. It may devolve by succession or by custom, but it cannot be sold or assigned |
The emoluments attached to such an office | They are given for the performance of the duty and follow whoever performs it; they are not the private income of the holder |
A right of residence in the family house | Granted so that this person shall have a home; a transferee could not enjoy it in the character in which it was given |
A service tenure or service inam | The land is held on the terms of rendering personal service, and the tenure fails if the service is not rendered by the holder |
A grant expressly for the personal maintenance or support of the grantee | The purpose of the grant is the personal subsistence of the person named |
A right of pre-emption, on the view taken by several High Courts | A personal right to be preferred as a purchaser, exercisable by the pre-emptor in his own character |
3. What Falls Outside It
- An ordinary life interest. A life estate is limited in duration, not in the person who may enjoy it. The life tenant may transfer it, and the transferee holds it pur autre vie — for so long as the original life continues.
- A contingent interest. An existing interest awaiting an event, transferable under section 6 and recognised by section 21.
- Arrears of an allowance already accrued. What has fallen due is money, and money owing is a debt — an actionable claim assignable under Chapter VIII, unless a specific clause such as 6(f) forbids it.
- An absolute interest on which a restraint has been fastened. Here the interest itself is not personal; the parties have merely tried to tie it down, and section 10 answers them by striking out the condition and leaving the interest transferable.
4. Section 6(d) and Section 10 Compared
Point | Section 6(d) | Section 10 |
|---|---|---|
What is restricted | The enjoyment of the interest, by its very nature | The power to alienate, by a condition the transferor has imposed |
Source of the restriction | The character of the interest itself | A term in the deed of transfer |
What the law does | Holds the interest untransferable | Holds the condition void, and lets the interest pass |
Result for the holder | He cannot transfer at all | He may transfer, the fetter being disregarded |
Typical example | A shebaitship; a right of residence | 'A transfers his land to B absolutely, but B shall never sell it' |
Exceptions | None within the clause | A lease, where the condition is for the benefit of the lessor; and property transferred for the benefit of a married woman who is not a Hindu, Muhammadan or Buddhist |
The question that separates them Is the interest itself personal, or is only the power of alienation fettered? If a stranger could hold and enjoy the interest perfectly well, and the transferor has merely forbidden him to take it, the case is section 10 and the condition is void. If a stranger could not enjoy it at all without changing its character, the case is section 6(d) and the transfer is void. |
5. Religious Offices in Particular
The largest body of case law under the clause concerns religious offices. The settled position may be stated in four propositions.
- The office cannot be sold. A shebait, mutawalli or other manager of a religious endowment cannot transfer the office for consideration; it is not a marketable asset.
- It may devolve. The office passes by succession, by the terms of the endowment, or by custom, and the founder may lay down the line of devolution.
- Surrender in favour of the next in line is different. A relinquishment in favour of the person next entitled under the endowment, made bona fide and without consideration, has been upheld, since it does not put the office into the market.
- Where the office has become a bare right to emoluments, courts have looked at substance. Where the duties are nominal and the office in truth carries only a share of the offerings, some decisions have treated the interest as property; but the safer statement for an answer remains that an office coupled with duty is within section 6(d).
6. Consequences of a Transfer in Breach
- The transfer is void. Nothing passes, and the transferee acquires no right to hold the office, occupy the residence or take the emoluments.
- Consideration is not recovered as of right from the property. The transferee's remedy, such as it is, lies against the transferor personally.
- The endowment or the grantor may sue. Where a religious office is concerned, the deity, the trust or the person next entitled may sue to have the transfer declared void and possession restored.
- Attachment is equally barred in substance. An interest that cannot be transferred is ordinarily also outside the reach of a decree-holder, since what cannot be sold cannot usefully be attached and sold in execution.
Retention aid Would a stranger be enjoying the same thing? If he would be enjoying something different — an office without the fitness, a residence without the relationship, land without the service — the interest was personal, and section 6(d) forbids the transfer. |
7. Related Topics and Provisions
- What May Be Transferred, Section 6 — the general rule and the other exceptions
- Right to Future Maintenance, Section 6(dd) — the clause that follows, resting on the same personal-benefit policy
- Section 10, TPA — conditions restraining alienation, and why they are void instead
- Section 11, TPA — restrictions on the enjoyment of an absolute interest
- Sections 19 and 21, TPA — vested and contingent interests, both transferable
- Transfer of Public Office, Section 6(f) — the public-law counterpart of a personal interest