Properties and rights which cannot be transferred

Introduction

As a general rule, mentioned in the Transfer of Property Act, 1882 properties of any kind may be transferred. The  different ways of transferring the properties are:

1. Sale

2. Gift

3. Voluntary transfer

4. Inheritance/Will

5. Partition

Section 6 of the Transfer of Property Act, 1882 provides for certain rights and properties which cannot be transferred. They are mentioned below:

1. Spes Successionis

A mere possibility of an heir succeeding to an estate is excluded from the category of transferable property. If the person is not totally sure, whether he will be receiving the property from the third person, then he cannot transfer it until he gets the ownership of the property.

For e.g., if a person A, while assuming him to be a legal heir of a property cannot transfer that property unless he gains the ownership of the property and the property belongs to him.

2. Right to sue

Since a right to sue is the personal right of the party aggrieved, therefore the right of suing cannot be transferred to any person. For e.g., if A has committed a wrong against B, only B can sue A in the Court of law. He cannot transfer his right of suing.

3. Easement

An easement is a right which comes to the property itself. For e.g. a passage in front of the entrance in the house is an easement to the property. When a property is transferred, a right to an easement is transferred with it. A property on easement cannot be built.

4. Public Office

Neither the public office nor the salary of the public office can be transferred before or after it has been payable. The prohibition is based because the public office is held for personal qualities necessary to fulfill. For e.g., if you hold an office of judge, inspector, etc, then you cannot transfer your public office to anyone.

5. Pensions/ Stipends

Pension means a periodical allowance or stipend granted not in respect of any right of office but on account of part services of particular merits Stipends allowed to military, naval, air-force and civil pensioners of the Government and political pensions cannot be transferred.

Section 60 of Code of Civil Procedure, 1908  also exempts a pension from attachment in execution of degree against the pension holder.

6. Right of re-entry

The right of re-entry means a right to resume possession of the land which has been given to another person for a certain time. It is usually inserted in lease empowering the lessor to re-enter a breach of covenants in the lease.

For e.g. A grants a lease of a plot of land for 5 years to B with the condition that B shall not dig a tank on the land. B digs the tank. A relates to transfer C the right of re-entry for the breach of the condition committed by B. The transfer is invalid.

7. Future Maintenance

A right to the maintenance is only for the personal benefit of the owner, thus it cannot be transferred. The amount irrespective of the fact whether secured or determined cannot be transferred.

8. Nature of Interests

The nature of transfer is forbidden in certain circumstances. For e.g., res communes mean the things of which no one is the owner and may be used by all the men, res nullius things belonging to nobody etc cannot be transferred.

Any property becomes non-transferable when the object or the consideration of the transfer becomes unlawful as per section 23 of the Indian Contract Act, 1872.

A transfer cannot be made in favor of a person who is disqualified to be a transferee.