Section 5. Transfer of Property Act defines the transfer of property
“Transfer of property” in these sections means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, 1[or to himself] and one or more other living persons; and “to transfer property” is to perform such act.
In Usha Rani Kundu vs Agradut Sangha And Ors. it was stated that section 5 of the Transfer of Property Act does not provide anywhere that an association or body of persons must compulsorily be registered before it can be a party to transfer a property. According to the learned Judge, if there had been such an intention of the legislature, the legislature would have clearly provided for that in the section itself.
It specifically speaks about what may be transferred. Property of any kind may be transferred, except as otherwise provided by this act even by any other law for time being in force, and these exceptions will be discussed in detail in the following subsections.
(a) Transfer of spes succession
“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. The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature. As a general rule, property and interests in it are transferable. Law favours alienation over accumulation. However, it is important for the transferor to have a present and subsisting title on the property.
(b) RIGHT OF RE-ENTRY
The right of reentry means the right to resume the possession of the land which would have been given to some other person for a certain period of time. And the cases of re-entry upon the demised premises if the rent is in the arrear of a certain period or if there is a breach of convents in the lease.
An Easement can be quoted as a right which the owner of the occupier of certain land in his enjoyment of said land, or it may even be to prevent something from being done.
(d) RESTRICTED INTEREST
This clause states that a person cannot transfer anything which restricted in its enjoyment to him. In Shoilojanmund V. Peary Charon it was stated that a right to receive voluntary and uncertain offerings at worship is interest restricted to personality enjoyment and hence, cannot be transferred.
(dd) RIGHT TO FUTURE MAINTENANCE
In the subsection of maintaining ace, it has been established that a right to future maintenance is solely for the personal benefit of the person to whom it has been granted and therefore, this very right cannot be transferred further.
(E) MERE RIGHT TO SUE
In Sethupathi v. Chidambaram, it was stated that it was held that a mere right to sue is something that cannot be transferred. Here the word mere itself means that the transferee has developed no interest than just a bare right to sue.
For e.g.- A contract to buy goods from Y on the due date X fails to take delivery and Y seals the goods in the market at a loss of Rs. 20000. Y transfers the right to recover the damages to Z. The transfer is invalid.
(f) Public Office
It should be noted in the first place that a public officer cannot be transferred. In the Sam fashion, even the salary of the police officer cannot be transferred whether before the after it becomes payable.
In Anathayya vs. Subha Rao it was stated that where there is an agreement between two people according to which a person agreed to pay a certain position of his having been maintained by the latter, not be in such cases this provision will not be applicable, which was held by the court.
Pension is like a salary; it is a sum of money periodically payable by the government which can be to an ex-serviceman or to a person who has ceased employment. In the case of Saundariya Bai v. Union of India, it was held that pension is non-transferable so long it is unpaid and in the hands of the government.
(h) NATURE OF INTEREST
No transfer can be made in so far as it is opposed to the nature of the interests affected thereby.
(i) STATUTORY PROHIBITIONS ON THE TRANSFER OF INTEREST
Persons competent to transfer.—Every person competent to contract and entitled to the transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.
Section 7 in The Transfer of Property Act, of 1882 defines Persons competent to transfer. Every person competent to contract and entitled to the transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.
In A.T. Raghava Chariar vs O.A. Srinivasa Raghava Chariar it was stated that under Section 7 of the Transfer of Property Act persons competent to contract are competent to transfer property and went on to show that under the Contract Act, a minor is not competent to contract.
Section 8 in The Transfer of Property Act, 1882 defines the operation of transfer. Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.
In Jugalkishore Saraf vs Raw Cotton Co. Ltd, it was stated that section 8 of the Transfer of Property Act does not operate to pass any future property, for that section passes all interest Which the transferor can then, i.e., at the date of the transfer, pass. There was thus no agreement for transfer and much less a transfer of a future decree by this document. All that was done by the transferors by that document was to transfer only the properties mentioned in clause 1 together with all legal incidents and remedies. The properties so transferred included book debts.