Property law deals primarily with the definition of individuals and businesses' rights and responsibilities, as well as transactions and enforcement of those rights and laws. The act defines and amends certain parts of the law relating to transfer of property by act of parties. One of the basic objectives of the act was to bring in harmony the rules relating to transfer to transfer of property between living persons and those applicable in case of devolution of the same in the event of the death of the person through interstate and testamentary succession .
A land is a rights-bundle. It includes assets which are movable, immovable, tangible and intangible. When a property is transferred all rights are also transferred along with the land. However arrangements may be made to transfer some of the rights but not all of them. Transferring future property in India is not valid, but transferring such property may be valid as a contract to assign.
Under transfer of property act ,1882 Section 5 defines as transfer of property according to this section Transfer of property means an act by which a living person in present or future transfers the property:
1. To one or more persons living, or
2. To himself or
3.To himself or to one or more other living persons, and to transfer such property is to do such an act.
Section 6 of the Transfer of property acts deals with what may be transferred. General rule of the act states that property of all types can be transferred whether tangible or intangible . But it also provides with certain exceptions in form of Non-transferable property . There is a further segregation of non –transferable property as Non –transferable property under TPA and under the other laws.
Non Transferable Property under other law-
1. Coparcenary property under Hindu law
2. Property in the name of “Math”
3. Property of any “Mutwali” related to Wakf under Muslim law
4. Property given and received voluntarily as gift or bounty
Non Transferable Property Under TPA-
Section 6 of the act defines the Non Transferable properties under various sub clause:
a)Spes successions- It talks about the probability of of a property , a person on the basis of any probability assumes his/her right against that property such as
1. Chance of an apparent heir
2. Chance of legacy
3. Any other possibility of any nature
Law considers such transfers void ab initio , it is a non transferable property .
b) Right of Re- entry- If a person rents his property to any other person , still he has the full rights to visit the property under various circumstances.
c) The Right of Easement- The right of easement cannot be transferred which means if we purchase a property then the benefits of the property cannot be transferred . It was held in the case of Sital vs. Dilanney that easement cannot be transferred apart from the dominant heritage
d) Restricted Interests- This clause states that a person can not transfer anything that is of interest limited to his or her enjoyment. These rights are personal rights and cannot be transferred . Transfer of such properties are void. The following kinds of interest can be held non-transferable:
1. Services Tenure
2. Religious Office
3. A right of Pre-emption
4. Emoluments which are attached to the priestly office
dd) Right of future maintenance- This right is given for the benefit of a particular person owing to various circumstances hence it can be enjoyed by the respective person only and cannot be transferred . It was held in the case of Dhupnath vs Rmcharit that such rights cannot be transferred not can be attached by a court decree.
e) Mere Right to sue- It was said in the case of Sethupathi v. Chidambaram that a mere right to sue is something that cannot be transferred.
f) Public Office- Public officer is a person appointed by the government to discharge a public duty and gets a salary in return to his duty. Hence as the salary is provided in return to a personal service of the person , it cannot be transferred.
g) Pensions- Pension is like a salary paid by the government for the person who was an ex- government official. This amount is not transferable.
h) Nature of Interest - Under this section, any transfer which is for an unlawful object or consideration is not allowed. And it is also in line with Article 23 of the Indian Contract Act, which specifies that consideration or subject-matter is unlawful if
2.It contradicts public policy
3.That is prohibited by law.
4.Is of such a nature, that it defeats any law's provisions.
i) Statuary prohibitions on the transfer of interest- It was held in the case of Shanti Prasad vs. Bachchi Devi that a tenant having an un-transferable right of occupancy cannot in any way transfer his interest.