What May Be Transferred

(i) Nothing in this section is to be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.

Clause by clause

(a) Spes successionis

Spes successionis means a hope of succeeding. It is Latin for exactly that: spes is hope, successio is succession.

The clause covers three things: the chance of an heir-apparent succeeding to an estate; the chance of a relation obtaining a legacy on the death of a kinsman; and any other mere possibility of a like nature.

The reason is that these are not interests at all. While a man is alive, nobody is his heir; there are only people who would inherit if he died today and if the law and his will stayed as they are. He may spend the property, sell it, or leave it elsewhere. What the hopeful relative has is not a small interest but no interest, and there is nothing to convey. A transfer of spes successionis is therefore void, not merely voidable, and it cannot be validated by the parties agreeing to it.

Contrast a contingent interest under section 21, taught in [Vested Interest and Contingent Interest]. A contingent interest is a real, present, transferable interest that happens to depend on an uncertain event. Spes successionis is not an interest at all. That is the distinction the examiner is testing when the two appear in the same question.

The clause has an important partner in section 43. Where a transferor falsely represents that he is already entitled and the transferee takes for consideration on the faith of it, and the transferor later acquires the very interest, section 43 lets the transferee take it.

The Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847, decided on 11 January 1962 by Venkatarama Aiyyar, Kapur, Hidayatullah and Shah JJ, settles how the two live together.

Facts. Three brothers, Santhappa, Nanjundappa and Basappa, were members of a joint family. Nanjundappa died in 1907 leaving his widow Ammakka, who took the estate as heir; on her death in 1910 the property passed to the reversioners. On 18 November 1920 three men who were grandsons of Nanjundappa's sister sold the disputed properties to Ganapathi for Rs. 2,000, the deed representing that they had become entitled as reversioners on Ammakka's death. In truth, at the date of the sale, what they had was a spes successionis. Ganapathi's successor sued for possession, and the Jumma Masjid claimed the same property through a gift said to have been made in 1932 and a release deed of March 1933.

Held. The transferee was entitled to the benefit of section 43. Where a person transfers property representing that he has a present interest in it when in fact he has only a spes successionis, a transferee who took on the faith of that representation and for consideration may claim under section 43 once the transferor acquires the interest. On the apparent conflict, the Court held that section 6(a) enacts a rule of substantive law while section 43 enacts a rule of estoppel, which is a rule of evidence, and that the two operate in different fields and on different conditions, so there is no ground for reading a conflict between them.

Why it matters here. It tells a student what clause (a) actually forbids. It forbids a transfer where both sides know they are dealing in a mere chance. It does not rescue a transferor who lied about having the interest and then acquired it.

(b) A mere right of re-entry

A right of re-entry is the right kept by a transferor to take the property back if a condition is broken, most commonly a lessor's right to re-enter on breach of a covenant. The clause allows it to be transferred to the owner of the property affected, and to nobody else.

The reason is that the right is worth nothing except to the person who owns the land it burdens. In a stranger's hands it would be a weapon for extracting money rather than a proprietary right. Note the word mere: a lessor who transfers the whole reversion transfers the right of re-entry along with it, because it passes as an incident of the reversion and not on its own.

(c) An easement apart from the dominant heritage

An easement is a right one landowner has over the land of another, such as a right of way or a right to light. The land that enjoys the right is the dominant heritage; the land that bears it is the servient heritage. Easements are the subject of Module III and are taught from [What an Easement Is].

An easement exists for the benefit of the dominant land, so it cannot be split off and sold by itself. Sell the dominant land and the easement goes with it; try to sell the easement alone and there is nothing coherent to sell.

(d) An interest restricted in its enjoyment to the owner personally

Where the very terms on which a person holds an interest confine its enjoyment to him, he cannot transfer it. A right of residence given to a particular person, a service tenure attached to an office, and the emoluments of a religious office are the standard instances. The test is whether the restriction is part of the interest itself rather than an ordinary condition imposed on a normal interest, which would be tested under section 10 instead, taught in [Conditions Restraining Alienation, and Restrictions Repugnant to the Interest Created].

(dd) A right to future maintenance

Inserted in 1929, this clause makes a right to future maintenance untransferable "in whatsoever manner arising, secured or determined", which is as wide as the drafter could make it. It does not matter whether the right arises under personal law, a decree, an award or an agreement, or whether it has been secured on property.

The reason is protective. Maintenance exists so that a dependent person can live. If it could be sold or attached, the dependant could be pressed into parting with it and left destitute, which would defeat the entire purpose. Note carefully that only future maintenance is protected: arrears already due are a debt like any other and may be transferred.

(e) A mere right to sue

A bare right to sue cannot be transferred. The word mere is the whole clause. The objection is to trafficking in litigation: allowing a stranger to buy someone else's grievance and pursue it for profit.

The line to draw is between a bare right of action and a right that has become property.

• A claim for damages for defamation, for assault, or for breach of contract where the damages are unliquidated, is a mere right to sue. Not transferable.
• An actionable claim, meaning an unsecured debt or a beneficial interest in movable property not in the claimant's possession, as defined in section 3, is transferable, under sections 130 to 137, taught in [Actionable Claims].
• A decree already obtained is property and may be transferred, because the right has crystallised into a judgment debt.
• Arrears of rent or of maintenance already accrued are debts, and transferable.

So the question to ask is whether what is being sold is a fight or a fund.

(f) A public office and the salary of a public officer

Neither the office nor the salary can be transferred, and the clause is deliberate in adding "whether before or after it has become payable", so even salary already earned is caught. Public offices are held for the public, not for the holder's profit, and a public servant who could sell his salary could be pressed by creditors into neglecting his duties.

(g) Pensions

Stipends allowed to military, naval, air-force and civil pensioners of Government, and political pensions, cannot be transferred. The reason is the same protective one as maintenance: the pension exists to keep the pensioner. Once a pension instalment has actually been paid and is money in the pensioner's hands, it is ordinary property and the clause has spent itself.

(h) Three general prohibitions

This clause is a catch-all with three limbs.

(1) Opposed to the nature of the interest affected. Some things are not capable of private ownership at all and so cannot be transferred: the air, running water in a natural stream, light, a public road, a public river. Res extra commercium, a thing outside commerce, is the label.

(2) For an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act 1872. This is the same test the Contract Act applies, brought in by section 4 of this Act. An object or consideration is unlawful if it is forbidden by law, defeats the provisions of any law, is fraudulent, involves injury to the person or property of another, or is immoral or opposed to public policy.

(3) To a person legally disqualified to be transferee. Certain people are barred by other laws from buying certain property. The standard illustration is section 136 of this Act, which disqualifies a Judge, a legal practitioner or an officer connected with a Court of Justice from buying an actionable claim; it is taught in [Actionable Claims].

(i) Untransferable occupancy tenants and others

The clause makes clear that nothing in section 6 authorises three classes to assign their interest as such: a tenant having an untransferable right of occupancy; the farmer of an estate in respect of which default has been made in paying revenue; and the lessee of an estate under the management of a Court of Wards.

These are statutory tenancies given to particular people for particular reasons, usually protective land legislation, and letting them be sold would put the land straight back into the hands the legislation was keeping it from.

A worked example

Deepak, a clerk in a municipal office, is short of money. In one afternoon he agrees to five things with a moneylender, Harish.

One, he assigns his salary for the next six months. Void under clause (f): the salary of a public officer cannot be transferred, before or after it becomes payable.

Two, he assigns his claim for damages against a neighbour who broke his arm. Void under clause (e): unliquidated damages for a personal injury are a mere right to sue.

Three, he assigns Rs. 40,000 that a former employer admits is owed to him as unpaid wages and has not paid. Valid. This is an unsecured debt and therefore an actionable claim under section 3, transferable under section 130.

Four, he assigns whatever he will inherit from his uncle Krishnan, who is alive and ill. Void under clause (a): a mere chance of an heir-apparent succeeding, and Krishnan may recover, spend the property or leave it elsewhere.

Five, he assigns his right to receive maintenance from his father under a decree. Void under clause (dd): a right to future maintenance, however arising, secured or determined. Arrears already due under that decree would have been a different matter.

Two of the five hold. The pattern is worth noticing: what Deepak could transfer were the two accrued money claims, and what he could not were the expectancy, the fight and the protected right.

What it does NOT mean

It does not mean these transfers are voidable. A transfer hit by section 6 is void. There is nothing for the parties to affirm.

Clause (a) does not make section 43 useless. The two operate in different fields, as the Supreme Court held in the case above. Clause (a) is substantive law about what can be transferred; section 43 is a rule of estoppel about a transferor who misrepresented his position and then acquired the interest.

Clause (e) does not bar the transfer of every claim. It bars a mere right to sue. Actionable claims, decrees and accrued arrears are all transferable.

Clause (dd) does not protect arrears. Only future maintenance is untransferable. Maintenance already due is a debt.

Clause (g) does not follow the money forever. Once the pension has been paid to the pensioner it is ordinary property in his hands.

"Mere" is doing real work in clauses (b) and (e). A right of re-entry passes with the reversion, and a right to sue that has hardened into a debt or a decree is transferable.

Distinctions

Quick revision

• The rule is transferability; section 6's clauses are the exceptions, and a transfer within them is void.
• (a) Spes successionis: the chance of an heir-apparent, of a legatee, or any like possibility. Not an interest at all. Compare a contingent interest, which is.
• (b) A mere right of re-entry, transferable only to the owner of the affected property; it passes with the reversion.
• (c) An easement, only with the dominant heritage.
• (d) An interest restricted in its enjoyment to the owner personally.
• (dd) A right to future maintenance, however arising, secured or determined. Arrears are transferable.
• (e) A mere right to sue. Actionable claims, decrees and arrears are outside it.
• (f) A public office, and the salary of a public officer, before or after it is payable.
• (g) Government and political pensions, until paid.
• (h) Opposed to the nature of the interest; unlawful object or consideration under section 23 of the Contract Act 1872; a transferee legally disqualified.
• (i) Untransferable occupancy tenants, defaulting revenue farmers, Court of Wards lessees.
• Section 43 rescues a transferee who was misled into buying a spes successionis and the transferor later acquires it.

Test yourself

1. Sunil, whose mother is alive and owns a house, sells "his share in his mother's house" to Rakesh. Is the sale good? No. Sunil has only the chance of succeeding to his mother's estate, a spes successionis, and clause (a) makes such a transfer void. Nobody is an heir while the owner lives.

2. If Sunil had represented to Rakesh that his mother had already died and that the house was his, and the mother later died leaving it to Sunil, could Rakesh claim it? Yes, on the principle in The Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847. Section 43 lets a transferee who paid consideration on the faith of a false representation take the interest when the transferor acquires it, because section 6(a) is a rule of substantive law and section 43 a rule of estoppel operating in a different field.

3. Can a decree for money be transferred? Yes. It is no longer a mere right to sue but a judgment debt, and so property. Clause (e) does not touch it.

4. A wife has a decree for maintenance of Rs. 8,000 a month. She wishes to assign the next two years' maintenance and also the Rs. 50,000 already in arrears. What is the position? The future maintenance cannot be assigned: clause (dd) covers a right to future maintenance in whatsoever manner arising, secured or determined, and a decree is within that. The Rs. 50,000 arrears are a debt already accrued and can be assigned.

5. Why can a public officer not assign salary already earned? Because clause (f) says so in terms: neither the office nor the salary can be transferred, "whether before or after it has become payable". The bar is not about whether the money has been earned.

6. Give an example under limb (1) of clause (h). Air, running water in a natural stream, light, or a public road. These are not capable of private ownership, so a transfer of them is opposed to the nature of the interest.

7. Can a right of way be sold to a neighbour who owns no adjoining land? No. Clause (c) forbids the transfer of an easement apart from the dominant heritage. The right exists for the benefit of the dominant land and cannot be detached from it.