Transfer of Property Act (TPA)
Spes Successionis under Section 6(a): The Chance of an Heir Apparent, and How It Differs from a Contingent Interest
A son whose father is alive owns nothing in his father's property. He has a hope, and the law calls it spes successionis — the expectation of succeeding. Section 6(a) says that hope cannot be transferred, and the courts have enforced the prohibition with unusual rigour: the transfer is void, consideration is irrelevant, ratification is impossible, and the estoppel of section 43 does not rescue it. The single distinction on which the topic turns is between a chance of this kind and a contingent interest, which is real property and freely transferable.
Figure 1: A chance on one side, an existing interest on the other, and the test that separates them
1. The Clause
Section 6(a), TPA '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, cannot be transferred.' |
Three things are named, and the third is a general category shaped by the first two. The clause bars the transfer of a possibility — something that is not an interest in property at all, but only the prospect that property may one day come.
2. The Three Limbs
- The chance of an heir apparent. A son, a daughter or a widow in relation to a living propositus has no interest in his property. He may sell it tomorrow, give it away, or leave it by will to a stranger; the heir apparent may also die first. What the heir has is not a defeasible right but no right at all.
- The chance of a relation obtaining a legacy. The expectation of a legatee under a will that has not yet operated. A will is ambulatory until death and may be revoked any number of times, so the named legatee holds nothing during the testator's lifetime.
- Any other mere possibility of a like nature. The residuary limb. It has been applied to the interest of a reversioner under the old Hindu law, to the possibility of a person obtaining property on the failure of a prior interest where nothing is vested, and to similar expectancies. What it does not cover is a contingent interest under section 21, which is an existing interest, however uncertain its fruition.
3. The Consequences of a Transfer in Breach
Question | Answer |
|---|---|
Is the transfer void or voidable? | Void, and void from the beginning — there was never anything capable of passing |
Does consideration make a difference? | None. A price paid for an expectancy buys nothing; the transferee is left to his remedy for the money |
Can it be ratified when the succession opens? | No. A void transfer cannot be validated by a subsequent event |
Does section 43 save it? | No, where both parties knew that only an expectancy existed. Section 43 operates on a fraudulent or erroneous representation of authority to transfer, which is absent here |
Does the transferee get anything at all? | Nothing in the property. He may sue for the return of the consideration, subject to the law on money paid under a void agreement |
May a family arrangement still bind the heir? | Yes. Where the expectant heir took consideration and the family acted on the arrangement, he may be held estopped, or the arrangement upheld as a family settlement |
4. The Leading Cases
Case | What it decided |
|---|---|
Annada Mohan Roy v. Gour Mohan Mullick, AIR 1923 PC 189 | The transfer of an expectancy by a Hindu reversioner is void under section 6(a); the prohibition is one of substantive law and cannot be circumvented by treating the transaction as a contract to convey when the succession opens |
Gulam Abbas v. Haji Kayyum Ali, AIR 1973 SC 554 | Examines the line between a void transfer of a spes and a family arrangement. Where the members of a family settle their affairs and an expectant heir takes a benefit under the settlement, he may be precluded from resiling once the succession opens |
Karpagathachi v. Nagarathinathachi, AIR 1965 SC 1752 | Co-widows holding a limited estate could by agreement adjust their rights between themselves; what section 6(a) forbids is the transfer of a bare chance to a stranger, not an arrangement among those with existing interests |
5. Spes Successionis and Contingent Interest Compared
Point | Spes successionis — s. 6(a) | Contingent interest — s. 21 |
|---|---|---|
Nature | A mere possibility; no interest in the property exists | An existing interest in property, the enjoyment of which awaits an event |
Source | The rules of succession, which operate only on death | An instrument that has already taken effect — a deed or a will in operation |
How it fails | It may be defeated at any moment by the owner's sale, gift or will | It fails only if the specified uncertain event does not happen |
Transferability | Void — cannot be transferred at all | Transferable under section 6 like any other interest in property |
Effect of the owner's dealings | The holder can do nothing about them; he has no locus to object | The prior owner cannot destroy the contingent interest by dealing with the property |
Statutory recognition | Named only to be prohibited | Recognised by section 21, with its vested counterpart in section 19 |
The question that settles it Does an interest in the property exist now? If a court could today identify an interest, vested or contingent, in the hands of the claimant, it is property and transferable. If all that exists is the prospect of becoming an owner should someone die and should no will or transfer intervene, it is a spes and worth nothing to a transferee. |
6. Related Situations Worth Distinguishing
Situation | Position in law |
|---|---|
An heir apparent transfers his prospective share during the owner's lifetime | Void under section 6(a) |
The same heir transfers his share after the succession has opened | A perfectly good transfer — he is now an owner |
A coparcener transfers his undivided interest in joint family property | Not a spes — the interest exists, though it fluctuates; transferability depends on the applicable law and, for Mitakshara property, on the position in the State concerned |
A legatee transfers his legacy after the testator's death but before distribution | Not a spes — the will has operated and an interest has arisen |
A person entitled on a contingency under a settlement transfers his interest | Transferable — a contingent interest under section 21 |
A person contracts to transfer property he may inherit, the contract to be performed if he does inherit | Void if it amounts in substance to a transfer of the expectancy; the prohibition cannot be evaded by the form of a contract |
7. Why the Rule Exists
- Nothing exists to convey. The first and simplest reason: a transfer presupposes property, and an expectancy is not property.
- It protects the expectant heir. Young men with expectations were historically the natural prey of money-lenders, who would buy prospective shares at a heavy discount. The prohibition removes the market.
- It protects the owner's freedom. If expectancies were saleable, the living owner would find strangers with a financial stake in his death and in his testamentary choices.
- It avoids speculation in deaths. The same policy that bars trafficking in litigation under clause (e) bars trafficking in the prospect of a succession.
Retention aid A contingent interest waits for an event; an expectancy waits for a death that may never enrich the person waiting. Then the three follow-ups: void not voidable, consideration irrelevant, section 43 no help — but a family arrangement may still bind the man who took the money. |
8. Landmark Cases
📖 Annada Mohan Roy v. Gour Mohan Mullick, AIR 1923 PC 189 Held: The transfer by a Hindu reversioner of his chance of succeeding to an estate is void under the clause prohibiting the transfer of a spes successionis. The prohibition is one of substantive law and cannot be circumvented by treating the transaction as an agreement to convey the property when the succession opens. Ratio: A transfer of an expectancy is void, and the form of the transaction cannot save it. |
📖 Gulam Abbas v. Haji Kayyum Ali, AIR 1973 SC 554 Held: The Court examined the line between a void transfer of a spes successionis and a family arrangement. Where the members of a family settle their affairs and an expectant heir takes a benefit under the settlement, he may be precluded by his own conduct from resiling when the succession opens. Ratio: A family arrangement may bind an expectant heir although a transfer of his expectancy would be void. |
📖 Karpagathachi v. Nagarathinathachi, AIR 1965 SC 1752 Held: Co-widows holding a limited estate could, by agreement between themselves, adjust their rights in the property. What the clause forbids is the transfer of a bare chance to a stranger, not an arrangement between persons having existing interests. Ratio: An arrangement between holders of existing interests is not a transfer of a spes successionis. |
9. Related Topics and Provisions
- What May Be Transferred, Section 6 — the general rule and the other eight exceptions
- Transfer of Property vs Inheritance — why an heir apparent owns nothing until the death
- Sections 19 and 21, TPA — vested and contingent interests
- Section 43, TPA — feeding the grant by estoppel, and why it does not apply here
- Annada Mohan Roy v. Gour Mohan Mullick, AIR 1923 PC 189 — the transfer of a reversioner's expectancy
- Gulam Abbas v. Haji Kayyum Ali, AIR 1973 SC 554 — family arrangements and estoppel