Transfer of Property Act (TPA)
Spes Successionis and Contingent Interest: A Chance That Is Not Property, and an Interest That Is
Both look like expectations, and both depend on something that may never happen. But one of them is property and the other is not. A contingent interest is created by an instrument that has already taken effect; the taker holds a present interest whose fruition awaits an event, and he may transfer it. A spes successionis is the bare hope of an heir apparent that he will one day succeed; no instrument has created anything, nothing has vested in anybody, and section 6(a) declares it untransferable. The question that separates them is simple: has an instrument already operated in the claimant's favour?
1. The Two Provisions
Sections 6(a) and 21 Section 6(a) — '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.' Section 21 — where, on a transfer of property, an interest is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, that person thereby acquires a contingent interest, which becomes a vested interest on the happening of the event or when its happening becomes impossible. |
2. The Comparison
Point | Spes successionis — s. 6(a) | Contingent interest — s. 21 |
|---|---|---|
Its nature | A mere possibility — a hope, and not property at all | An existing interest in property, the enjoyment of which awaits an event |
Its source | The rules of succession, which operate only on death | An instrument that has already taken effect — a deed or a will in operation |
Is it property? | No | Yes — it is an interest within the meaning of the Act |
Transferability | Void — it cannot be transferred at all | Transferable under section 6, like any other interest in property |
Heritability | Nothing to inherit | Heritable, except where the contingency is the holder's own survival |
How it may be defeated | By the owner selling, gifting or bequeathing the property, or by the heir predeceasing him — the holder can do nothing about any of it | The prior owner cannot destroy it by dealing with the property; it fails only if the specified event does not happen |
What the claimant may do | Nothing. He has no locus standi to object to the owner's dealings | He may transfer it, and he may protect it against dealings inconsistent with the instrument |
Recognition by the Act | Named only to be prohibited | Recognised by section 21, with its vested counterpart in section 19 |
When it matures | Only if the owner dies intestate and the claimant is then his heir | On the happening of the event, or when its happening becomes impossible |
3. The Question That Settles It
Does an interest exist now? Ask whether a court could today identify an interest, vested or contingent, in the hands of the claimant. If it could — because a deed or a will in operation has given him something, though its enjoyment awaits an event — it is property, and it is transferable. If all that exists is the prospect of becoming an owner should somebody die and should no will or transfer intervene, it is a spes, and it is worth nothing to a transferee. |
4. Related Situations Worth Distinguishing
The situation | Position |
|---|---|
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 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 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 on the position in the State concerned |
A person contracts to transfer property he may inherit, the contract to be performed if he does | Void if in substance it is a transfer of the expectancy; the prohibition cannot be evaded by the form of a contract |
A family arrangement under which an expectant heir takes a benefit | The arrangement may bind him, and he may be precluded by his own conduct from resiling when the succession opens |
5. Section 43 and the Misled Transferee
Where the two provisions meet The problem. A man sells what is in truth a bare expectancy, representing that he is already entitled, and afterwards inherits the property. Does section 6(a) make the transfer void, or does section 43 allow the transferee to claim what the transferor has since acquired? The answer. The two operate in different fields. Section 6(a) is a rule of substantive law; section 43 is a rule of estoppel. Where the transferee knew he was buying a chance, section 6(a) governs and the transfer is void. Where he was misled by the representation, section 43 applies, and on the transferor acquiring the interest the transferee may at his option require the transfer to operate upon it. So knowledge decides, and the transfer must in any event have been for consideration, with the contract still subsisting. |
6. Why a Spes Is Not Transferable
- There is nothing to convey. 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 buying prospective shares at a heavy discount; the prohibition removes the market.
- It protects the owner's freedom. If expectancies were saleable, a living owner would find strangers with a financial stake in his death and in his testamentary choices.
- And it matches the policy of section 6(e), which bars trafficking in the fruits of litigation for the same reason.
7. 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 it 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 in which the transaction is cast cannot save it. |
📖 Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847 Held: Section 6(a) and section 43 operate in different fields and are not in conflict. The former is a rule of substantive law declaring that a mere chance of succession is not transferable; the latter is a rule of estoppel protecting a transferee who was misled by a representation of authority. Where the transferee knew he was taking a chance, section 6(a) applies and the transfer is void; where he was misled, section 43 applies and he may claim the interest the transferor afterwards acquires. Ratio: The knowledge of the transferee decides which of the two provisions governs the transaction. |
📖 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, and not an arrangement between persons who have existing interests in the property. Ratio: An arrangement between holders of existing interests is not a transfer of a spes successionis. |
📖 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. |
8. Related Topics and Provisions
- Spes Successionis, Section 6(a) — the prohibition in detail
- Contingent Interest, Section 21 — and the exception about intermediate income
- Vested Interest and Contingent Interest — the classification within the Act
- Section 43 vs Spes Successionis under Section 6(a) — the reconciliation in Jumma Masjid
- Section 6(e), TPA — a mere right to sue, which rests on the same policy
- Transfer Inter Vivos vs Transfer by Will — why succession is outside the Act