Transfer of Property Act (TPA)
TPA Section 6h and 6i
Sections 6(h) and 6(i): Transfers Opposed to the Nature of the Interest, for an Unlawful Object, to a Disqualified Transferee, and of Occupancy Rights
The last two clauses of section 6 are the widest. Clause (h) is not one prohibition but three, each looking at a different part of the transaction: what is being transferred, why it is being transferred, and to whom. Clause (i) then takes out a group of statutory tenures created for the personal benefit of their holders. Between them the two clauses carry the general law of contract, the law of status and the whole of the tenancy legislation into the Act's scheme of transferability.
Figure 1: The four filters a proposed transfer must pass before it reaches section 7
1. The Clauses
Sections 6(h) and 6(i), TPA (h) 'No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872, or (3) to a person legally disqualified to be transferee.' (i) 'Nothing in this section shall be deemed to authorise 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, to assign his interest as such tenant, farmer or lessee.' |
2. Clause (h), First Limb: Opposed to the Nature of the Interest
Some things cannot be the subject of a transfer at all, because the nature of the interest is inconsistent with private dealing. The category is old and is usually explained through two Latin labels: res communes, things common to all and incapable of private ownership, and res extra commercium, things withdrawn from commerce.
Subject | Why it cannot be transferred |
|---|---|
Air, light and running water in their natural state | Incapable of exclusive appropriation; what may be transferred is a right in respect of them, such as an easement, and only with the dominant heritage |
Property dedicated to a deity or to a public religious or charitable purpose | The dedication takes the property out of private ownership; the shebait or trustee manages, he does not own |
Public streets, highways and public places | Vested in the State or local authority for the use of the public, and not disposable as private property |
A right of ferry or fishery held by the State as a public right | Held for the public; a lease or licence may be granted under statute, but the right itself is not alienable privately |
A licence to enter land | It confers no interest in property; generally not transferable, under section 56 of the Easements Act |
3. Clause (h), Second Limb: Unlawful Object or Consideration
This limb imports section 23 of the Indian Contract Act, 1872 bodily. A transfer is bad if the object or the consideration is any of the following.
- Forbidden by law. A transfer prohibited by a statute — for example, a transfer of agricultural land to a person disqualified by a land-reform enactment.
- Of such a nature that, if permitted, it would defeat the provisions of any law. A transfer designed to evade a ceiling on land holdings, or to escape a statutory pre-emption.
- Fraudulent. A transfer made to defraud creditors — which also engages section 53, under which such a transfer is voidable at the option of the creditors defeated or delayed.
- Involving or implying injury to the person or property of another.
- Immoral or opposed to public policy. The classic instance is a transfer in consideration of future illicit cohabitation, which is void; a transfer in recognition of past cohabitation has been treated differently in some decisions, and the answer turns on whether the consideration is the continuance of the relationship.
4. Clause (h), Third Limb: A Legally Disqualified Transferee
Here the objection is to the person taking, not to the property or the purpose. The disqualification must be one imposed by law.
Transferee | Source of the disqualification |
|---|---|
A judge, a legal practitioner, or an officer connected with a court of justice, as to an actionable claim | Section 136, TPA — he may not buy or traffic in, or stipulate for any share in, such a claim, and no court shall enforce it at his instance |
A person barred by tenancy or land-reform legislation from acquiring agricultural land | The relevant State statute; the bar is commonly on non-agriculturists |
An officer connected with the sale, buying at a court auction | The Code of Civil Procedure and the rules governing execution sales |
An alien enemy | The general law relating to transactions with alien enemies in time of war |
A person under a disqualification created by a special statute | The statute in question — the bar is always statutory, not merely a matter of propriety |
5. Clause (i): Occupancy Rights and Non-Transferable Tenures
Clause (i) is not a prohibition of the same kind as the others; it is a saving, inserted to prevent the wide opening words of section 6 from being read as an authority to assign three statutory interests.
- A tenant having an untransferable right of occupancy. Occupancy rights were conferred by the tenancy legislation on cultivators, so that the person who tills the land should hold it. The right is personal to the cultivator, and permitting assignment would put the land back in the market the legislation was designed to take it out of.
- The farmer of an estate in respect of which default has been made in paying revenue. A revenue farmer holds under an arrangement with the Government, and a defaulting farmer cannot pass on his position.
- The lessee of an estate under the management of a Court of Wards. The estate is under the court's management for the protection of the proprietor, and the lessee's interest is subject to that scheme.
Two qualifications on clause (i) It bars assignment, not devolution. The clause forbids the holder from assigning his interest; it does not prevent the interest from passing on his death to those entitled under the tenancy law or the personal law. The State legislation governs the detail. Occupancy rights are creatures of State tenancy statutes, and whether a particular right is transferable, and on what conditions, must be answered from the statute that created it. Many later enactments permit transfer with the collector's permission or to specified classes. |
6. How the Four Filters Work Together
Put the four in sequence and they answer four different questions about the same transaction. Is this thing capable of being transferred at all? — the first limb of clause (h). Is the purpose or the price lawful? — the second limb. May this person receive it? — the third limb. Is the holder's own tenure one the law has made unassignable? — clause (i). A transfer that clears all four then moves on to section 7, which asks whether the transferor was competent, and to section 9 and the transaction chapters, which ask whether the right form was used.
Retention aid Nature, object, person, tenure. Clause (h) is three answers to three questions in one sentence, and clause (i) adds a fourth. Write them as four separate heads and no part of the clause is ever forgotten. |
7. Related Topics and Provisions
- What May Be Transferred, Section 6 — the general rule and the other exceptions
- Section 23, Indian Contract Act, 1872 — unlawful object and consideration, imported by the second limb
- Section 136, TPA — the disqualification of judges, legal practitioners and court officers
- Section 53, TPA — fraudulent transfers, and the remedy of defeated creditors
- Person Competent to Transfer, Section 7 — the next question, once the property has cleared section 6
- Section 56, Indian Easements Act, 1882 — licences, and why they are not transferable