Transfer of Property Act (TPA)
What May Be Transferred under Section 6: The Rule of Free Transferability and Its Nine Exceptions
Section 6 opens with a proposition of the widest kind — property of any kind may be transferred — and then takes back nine categories in clauses (a) to (i). The rule reflects the commercial policy of the Act: property should circulate freely, and a restriction on alienability needs a reason. Each exception supplies one. Some protect the nature of the interest, some protect the transferee, and some protect the public from trafficking in offices, pensions and litigation.
Figure 1: The general rule, and the nine categories the section removes from it
1. The General Rule
Section 6, opening words 'Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.' Two sources of restriction are therefore recognised: this Act, chiefly through the nine clauses that follow and through the restraints in sections 10 to 18; and any other law — tenancy and land-reform statutes, the Companies Act, debt-relief legislation and the personal laws saved by section 2. |
The burden accordingly lies on the person asserting that property is not transferable. Free alienability is the rule; every exception must be brought within a clause.
2. The Nine Exceptions
Clause | What cannot be transferred | The reason |
|---|---|---|
(a) | The chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy, or any other mere possibility of a like nature | It is not property at all, but a bare hope that may be defeated at any moment |
(b) | A mere right of re-entry for breach of a condition subsequent — except to the owner of the property affected by it | A personal right of the grantor with no independent existence; permitting sale would be trafficking in another's forfeiture |
(c) | An easement, apart from the dominant heritage | An easement exists only for the benefit of the dominant tenement; severed from it, it is meaningless |
(d) | An interest restricted in its enjoyment to the owner personally | The interest is personal — a religious office, the emoluments of a priest, a right of pre-emption in some forms |
(dd) | A right to future maintenance, in whatsoever manner arising, secured or determined | Maintenance is granted for the personal support of the holder; inserted by the Amendment Act, 1929 |
(e) | A mere right to sue | The rule against trafficking in litigation — a bare cause of action, divorced from property, cannot be bought |
(f) | A public office, and the salary of a public officer, whether before or after it has become payable | Public policy: offices are held for the public, and the salary is to secure the officer's independence |
(g) | Stipends allowed to military, naval, air force and civil pensioners of Government, and political pensions | The pension is for the maintenance of the pensioner himself |
(h) | A transfer opposed to the nature of the interest; for an unlawful object or consideration within section 23 of the Contract Act; or to a person legally disqualified to be a transferee | Three distinct bars, carrying the general law of contract and of status into the law of transfer |
(i) | The interest of a tenant with an untransferable right of occupancy, of a farmer of an estate in default of revenue, or of a lessee of an estate under the Court of Wards | Statutory tenures created for the personal benefit of the holder and not as marketable assets |
3. The Clauses That Generate the Case Law
3.1 Clause (a) — spes successionis
A transfer of a bare expectancy is void, not merely voidable, and consideration does not save it. Section 43, which feeds the grant by estoppel where the transferor made a fraudulent or erroneous representation of authority, does not validate a transfer that both parties knew to be of an expectancy. But a family arrangement may still bind the expectant heir who took the money, on the reasoning in Gulam Abbas v. Haji Kayyum Ali, AIR 1973 SC 554. The topic is treated separately.
3.2 Clause (b) — mere right of re-entry
The word that matters is mere. A right of re-entry annexed to the reversion passes with the reversion under section 8, read with section 109; it is only the right divorced from any interest in the land that cannot be sold. The clause preserves one transfer: to the owner of the property affected, which in a lease means the lessee, and which extinguishes the right by merger.
3.3 Clause (e) — mere right to sue
Again the operative word is mere. A right to recover a debt is an actionable claim and is assignable under Chapter VIII; so is a claim to damages that has been quantified by a decree. What cannot be assigned is a bare right of action — a claim in tort, a right to sue for damages for breach, a right to set aside a transaction for fraud — unconnected with any property that passes to the assignee. The distinction is between assigning property with its incidental remedies and assigning the remedy alone.
3.4 Clause (h) — three bars in one clause
- Opposed to the nature of the interest. Things dedicated to public or religious use, or held in a character inconsistent with alienation, cannot be transferred.
- Unlawful object or consideration. Section 23 of the Contract Act is imported bodily: a transfer for a consideration or object that is forbidden by law, defeats the provisions of any law, is fraudulent, involves injury to person or property, or is immoral or opposed to public policy, is void.
- A disqualified transferee. Certain persons are barred from taking particular property — the clearest instance is section 136, which disables a judge, a legal practitioner or an officer connected with a court of justice from buying or trafficking in an actionable claim.
4. What Remains Freely Transferable
Because the general rule is so wide, it is worth naming the interests that are transferable although students often assume otherwise.
Interest | Position |
|---|---|
A contingent interest under section 21 | Transferable — it is an existing interest awaiting an event, not a mere possibility |
A future interest in existing property — a remainder or a reversion | Transferable; the interest exists now, only enjoyment is postponed |
An actionable claim — an unsecured debt, or a beneficial interest in moveables not in possession | Transferable under Chapter VIII, sections 130 to 137 |
The equity of redemption | Transferable; it is the mortgagor's interest in immoveable property |
A decree for money | Transferable, subject to the Code of Civil Procedure |
A right of way, a ferry, a fishery | Transferable as benefits arising out of land, but an easement cannot be severed from the dominant heritage |
A tenant's interest under an ordinary lease | Transferable unless the lease or a statute forbids it — section 108(j) |
5. Section 6 and the Restraints in Sections 10 to 12
Section 6 governs what the law makes untransferable. Sections 10 to 12 govern what the parties try to make untransferable, and the policy is the same. Under section 10, a condition absolutely restraining alienation in a transfer is void, though a partial restraint may stand; under section 11, a condition restraining the enjoyment of an absolute interest is void; and under section 12, a condition making an interest determinable on the transferee's insolvency or attempted alienation is void, except in the case of a lease for the benefit of the lessor. Read together, the sections express a single legislative preference: property should remain marketable.
Retention aid Group the nine. Two are not property at all — (a) an expectancy and (e) a bare right to sue. Three are personal to the holder — (d) an interest restricted to the owner, (dd) future maintenance, (g) pensions. Two are public — (f) office and salary, (i) statutory tenures. One is dependent — (c) an easement. And one is a catch-all — (h) nature, object and transferee. Clause (b) stands alone as the right of re-entry. |
6. Landmark Cases
📖 Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376 Held: A right to recover a debt is property and may be assigned, but a transfer of property not in existence operates only as an agreement to transfer, enforceable when the property comes into being. Ratio: The subject matter must exist at the date of the transfer. |
📖 Union of India v. Sri Sarada Mills Ltd., (1972) 2 SCC 877 Held: A claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and the damages assessed. Until then there is no actionable claim, and what the claimant holds is a mere right to sue, which cannot be assigned. Ratio: A bare right of action for unliquidated damages is not transferable property. |
7. Related Topics and Provisions
- Spes Successionis, Section 6(a) — the first exception, with its case law
- Mere Right of Re-entry, Section 6(b) — the second exception in detail
- Transfer of Property, Sections 5 to 9 — where section 6 sits in the opening scheme
- Sections 10, 11 and 12, TPA — restraints on alienation imposed by the parties
- Sections 130 to 137, TPA — actionable claims, and the disqualification in section 136
- Section 23, Indian Contract Act, 1872 — the unlawful object and consideration imported by clause (h)