What is Section 6 of the Transfer of Property Act, 1882?

Introduction

• In Section 6 of the Transfer of Property Act, “what can be transferred” has been discussed. The section deeply talks about the various terms and exceptions that clearly define the things that get transferred in the Transfer of Property Act.
• Section 6 of the Transfer of Property Act is civil legislation that significantly impacts issues related to the Transfer of Property and Gift Deeds. This blog will discuss section 6 in detail.

What is the Transfer of Property? 

In the lives of humans, property holds a great amount of value, not only economically and physically but also emotionally. Not only it gives a sense of economic value but also makes us feel settled and secure.

Analysis of Section 6 of the Transfer of Property Act

• Section 6 of the Transfer of Property Act helps us to differentiate between the types of property which can be transferred under the Transfer of Property Act.
• There are different types of properties under transferable properties and nontransferable properties.
• Section 6 of the Transfer of Property rights makes a difference between them.
• Section 6 of the Transfer of Property talks about the types of property which can be transferred except those which are mentioned in the sub-clause of this section.
• Section 6 of the Transfer of Property Act gives us various exemptions, which we will now discuss in detail.

Sub-Section(a) – Transfer of Spes Succession

• Section 6 of the Transfer of Property Act makes the spes succession of the property void ab initio. This section also prohibits any kind of transfer of Property that any individual does not own.
• Let’s take an example. Father Ram and son Shyam make up a family. Father Ram owns the property, and as such, he retains ownership of it during his lifetime. Neither his son nor anyone else is permitted to sell the property without his permission.
• In this case, Shyam is the Heir Apparent since, if Ram passes away intestate, Shyam would be the beneficiary of his estate. Here, there is a likelihood that Shyam will succeed in the property in the future for two key reasons.
• First off, since Ram is the property’s owner, he is free to sell it, dispose of it in any way he sees fit, or include someone in his will. Nothing will eventually be left for Shyam.
• Second, their son Shyam passes away while his father is still alive. Thus if he had transferred the property with the ownership of it, then it is termed as void from starting.

Sub-section (b) – Right of Re-entry

• This can be understood by an example Binod sold some things to Ashok under the terms of a hire purchase arrangement. 
• This contract included a condition that Ashok would take possession of the property after the sale and pay the instalments on time.
• However, if Ashok failed to do so, Binod would enter Ashok’s home and seize the property. The crucial thing to keep in mind in this situation is Binod. Has a personal right to re-enter and cannot transfer that right to anyone else.

Sub-section ( c ) – Easement

• Section 6 of the Transfer of Property Act discusses an individual’s right to the lands of which he is the owner, and the owner of a property has a natural right to enjoy the profits that arise out of that land.
• For example, if person A has taken home on rent from person B, then the person has all rights to enjoy the property in terms of using the roofs, garden, etc. He can dry clothes on the terrace, play games, and do anything else.
• This will be within his right to enjoy the property under section 6 of the Transfer of Property Act, under the easement subclause.

Sub-section (d) – Restricted Interests

• Section 6 of the Transfer of Property Act talks about invalid transfers. There are various rights and ownership that cannot be transferred from one person to another, such as tenure of services, religious office, a right of preemption, etc.
• These cannot be transferred; their transfer is invalid.

Sub-section (dd) – Right to Future Maintenance

The right to future maintenance is exclusively for the personal benefit of the individual to whom it has been granted. This means such a right cannot be transferred to another person. For instance, a woman’s right to receive maintenance from her husband, whether under a court decree or an award, or to receive a share of his property upon his death or under his will, is a personal right. This right cannot be transferred or attached by any court’s decree, as established in the case of Dhupnath v. Ramacharit.

Sub-section (e) – Mere Right to Sue

A mere right to sue cannot be transferred. This principle was upheld in the landmark case of Sethupathi v. Chidambaram. The term ‘mere’ indicates that the transferee gains no interest beyond the basic right to initiate a lawsuit. For example, if A contracts to buy goods from B but fails to take delivery, causing B to sell the goods at a loss, B cannot transfer the right to recover damages to C. Such a transfer would be invalid.

Sub-section (f) – Public Office

A public office and its associated salary cannot be transferred. This applies whether the salary is due or already payable. A public officer, who is appointed to perform public duties and receives a salary in return, cannot transfer this right. In the case of Ananthayya v. Subba Rao, it was ruled that an agreement where one person agreed to pay a portion of his income to his brother in return for past maintenance does not fall under this provision.

Sub-section (g) – Pensions

Pensions, like salaries, are sums of money paid periodically by the government to ex-servicemen or retired employees. In the case of Saundariya Bai v. Union of India, it was determined that pensions are non-transferable as long as they remain unpaid and are in the hands of the government. Unlike bonuses and rewards, which are transferable, pensions cannot be transferred.

Sub-section (h) – Nature of Interest

Transfers that contradict the nature of the interest affected by the transfer are not permissible. This includes items dedicated to public or religious uses, or service inam, which cannot be transferred. Additionally, any transfer made for an unlawful object or consideration is invalid, aligning with Section 23 of the Indian Contract Act. This section states that consideration or objects are unlawful if they are fraudulent, opposed to public policy, forbidden by law, or defeat the provisions of any law.

Transfer to Legally Disqualified Persons

Transfers to individuals who are legally disqualified from being transferees are prohibited. According to Section 7 of the Act, the transferee must be competent to contract and not legally disqualified.

Sub-section (I) – Statutory Prohibitions on the Transfer of Interest

This section clarifies that tenants with an un-transferable right of occupancy cannot transfer their interest, as held in Shanti Prasad v. Bachchi Devi. However, there are exceptions to this rule, stating that most tenancies or leaseholds are transferable, except where specific statutes provide otherwise. For example, a farmer who has defaulted on revenue payments cannot transfer his interest in the estate.

Few other exceptions

• Section 6 of the Transfer of Property Act mentions a few other exceptions, such as the prohibition on transferring pensions from one person to another. One person cannot transfer his right to a pension to another.
• The transfer of public office owned by an official in the country cannot be transferred to another person. The right to file a case in case of a property dispute stays with the person who was involved in the Transfer of Property dispute; the right to file a case cannot be transferred.
• The right to take advantage of future maintenance by the woman cannot be transferred by her to someone else.

Conclusion

Section 6 of the Transfer of Property Act talks about the various things which will be invalid if the transfer of them happens. These are the things other than which the transfer of the property means valid.

Section 6 of the Transfer of Property Act is a broad section that needs to be understood in detail. Legal advice must be taken in case of any issues related to gift deeds.