PROPERTY LAW

FACULTY OF LAW
Assignment on
What may be transferred.

Mirza Azhar Hussain

IInd Year

B.A.LLb(hons) self-finance
Roll no. 29
En. No. 16-5180

Under supervision: prof. Qazi Usman sir.

1|Page JAMIA MILLIA ISLAMIA.

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Prof. Qazi usman sir. who
gave me the golden opportunity to do this wonderful project on the topic, which also helped me
in doing a lot of Research and I came to know so many new things. I am really thankful to them.

Secondly, I would also like to my parents and friends who helped me a lot in finishing this
project within the limited time.

I am making this project not only for marks but also increase my knowledge.

I AM HIGHLY GRATEFUL INDEBTED TO THEM AND OWE MY SINCERE GRATITUDE

TO THEM

2|Page JAMIA MILLIA ISLAMIA.

Section 6 in the Transfer of Property Act, 1882

What may be transferred.-

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.

(a) 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.

(b) A mere right of re- entry for breach of a condition subsequent cannot be transferred to anyone
except the owner of the property affected thereby.

(c) An easement cannot be transferred apart from the dominant heritage.

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

Cannot be transferred by him.

(dd)1[ A right to future maintenance, in whatsoever manner arising, secured or

Determined, cannot be transferred.]

(e) A mere right to sue 2[ cannot be transferred].

(f) A public office cannot be transferred, nor can the salary of a public officer,
Whether before or after it has become payable.

(g) Stipends allowed to military 3[ , naval], 4[ air- force] and civil pensioners of 5[

1
Ins. by Act 20 of 1929, s. 6.
2
The words" for compensation for a fraud or for harm illegally caused", omitted by Act 2 of 1900, s. 3.
3
3 Ins. by Act 35 of 1934, s. 2 and Sch

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Government] and political pensions cannot be transferred.

(h)No transfer can be made (1) in so far it is opposed to the nature of the interest affected
thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the
Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be transferee.

(i)6[ Nothing in this section shall be deemed to authorize 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

VasudevRamchandraShelatvsPranlalJayanandThakarandOrs on 17 July, 1974,

Supremecourt

Legal or equitable, does not appear to be there. Section 6 of the T.P. Act justifies such a splitting
up of rights constituting property in shares just as it is well recognised that rights of ownership of
property may be split up into a right to the "Corpus" and another to the "usufruct" of the property
and then separately dealt with. [541C-E] M.P. Barucha&Anr.V. V. Sarabhai & Co. &Ors. 53
Indian Appeals P. 92 @ 97-98, relied on. Section 122 of the Transfer of PropertyAct defines a
"gift". Section

Transfer of PropertyAct had to be read harmoniously with Sections 28 and 34 of the Companies
Act, 1913. (4) Since material portions of the transfer form given in regulation 19 of Table A of
the first Schedule of the Companies Act of 1913 were never filled in, the doctrine of "substantial
compliance" with the required form could not come to the aid of the appellant. (5) The gift deed
itself does not empower the donee to take any of those steps which remained to be taken to
complete the 'transfer', so that the doctrine of implied authority would

4
4 Ins. by Act 10 of 1927, s. 2 and Sch. I.
5
The word" Government" successively subs. by the A. O. 1937 and the A. O. 1950 to read as above.

6
Added by Act 3 of 1885, Section 4.

4|Page JAMIA MILLIA ISLAMIA.

deal with every kind of transfer of property which the law permits. Nor does it prescribe the
mode for every legally recognisedtransfer. Nevertheless, it is an enactment meant for defining
certain basic types of transfer and it lays down the requirements both of substance and of form
for their legal recognition and effectiveness. Section 5 of this Act gives a wide connotation to
"transfer of pro- perty". All that it requires is that the transferor must be living at the time of the
transferrecognised by the Act. Section 6 of the Act lays down that "property

ShehammalvsHasanKhaniRawther&Ors.on 2 August, 2011

Supreme Court appears in the document

said Deeds and his position not having altered in any way, the Respondent No.1 is not entitled to
claim exclusion of the other heirs of Late MeeralavaRawther from his estate. 12. In this regard,
Mr. George also drew our attention to Section 6 of the Transfer of PropertyAct, 1882, where the
concept of spessuccessions has been incorporated. It was pointed out that Clause (a) of Section 6
is in parimaterial with the doctrine of spassuccessions, as incorporated in paragraph 54 of
Mulla's"Principles of MahomedanLaw" and 13 provides

Indian Contract Act, 1872, as being opposed to public policy. Mr. Giri urged that the principles
of Mahomedan law in relation to the law as incorporated in the Transfer of PropertyAct and the
Indian Contract Act had been considered in great detail by the three-Judge Bench in Gulam
Abbas's case (supra). Learned counsel pointed out that on a conjoint reading of Section 6 of the
Transfer of PropertyAct and paragraph 54 of Mulla's"Principles of MahomedanLaw"
it would be quite evident that what was sought to be protected

Essentials of a valid transfer

In order to constitute a valid transfer of property, whether movable or immovable, under the act.

i. The property must be transferable,(section 6)

ii. The transfer must be competent to transfer, 9section 7),
iii. The transfer must be competent to take the transfer, (section 6 (h)(3) ),
iv. The consideration or object of the transfer must be lawful, [section 6(h) (2)],

5|Page JAMIA MILLIA ISLAMIA.

 v. The transfer must not be opposed to the nature of the interest effected thereby, [section
6(h) (1)],
vi. It must be made in the manner and in the form required by Act, if any, (section 9)

HafeezaBibi&Ors.vsShaikhFarid(Dead) By Lrs. &Ors. On 5 May, 2011

Similar in principle to the present case. There also a deed relating to the gift was executed. The
learned Judge held that if the gift was valid under the Mahomedan Law it was none the less valid
because there was a deed of gift which, owing to some defect, was invalid under Section 123,
Transfer of Property Act, and could not be used in evidence. 4. The next, question that calls for
consideration is whether a document like the present one executed by a Mahomedan donor after
he made a gift to show that he had made it in favour

immovable property' I understand an instrument or deed which creates, makes or completes the
gift, thereby transferring the ownership of the property from the executant to the person in whose
favour it is executed. In order to affect the immovable property, the document must be a
document of transfer; and if it is a document of transfer it must be registered under the provisions
of the Registration Act. 5. The present document does not affect immovable property. It does not
transfer the immovable property from the donor to the donee. It only affords evidence of the fact
that the donor

some of the decisions noticed above and few other decisions and held in paragraph 10 of the
report thus : "10. Under Section 129 of the Transfer of Property Act, nothing in Chapter
VII relates to gifts of movable property made in contemplation of death or shall be deemed to
affect any rule of Mohammadan Law. According to the Mohammedan Law, there can be a valid
gift, if three essentials of the gift are satisfied.

(1) A declaration of the gift by the donor,

(2) the acceptance of the gift express or implied by or on behalf

DhirendraNath Sharma vs State Of Madhya Pradesh And Anr.on 28 November, 1985

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Lands were excluded from the applicability of the amendments made by these notifications. The
cumulative effect of these notifications, therefore, is that the amendments made thereby do not
apply to transfer of agricultural lands by a Bhumiswami belonging to a tribe, which has been
declared to be an aboriginal tribe under Sub-section (6) of Section 165 of the Code. Since we are
concerned in these petitions only with transfer of agricultural lands by Bhumiswamis belonging
to tribes, which have been declared to be aboriginal tribes under Sub-section (6) of Section 165
of the Code, the effect of these

tribal, shall enquire into the bona fide nature of such transfer effected in any manner including
accrual of right of occupancy tenant at any time, during the period commencing on the 2nd Oct.
1959 and ending on the date on which the 1976 Amendment came into force. Sub-section (2)
then lays down that if the Sub-Divisional Officer is satisfied as a result of an enquiry that such
transfer was not bona fide, he may notwithstanding anything contained in this Code or any other
enactment set aside such transfer and restore the land to the transferor; or where such

Edition, at p. 300). The impugned provisions, therefore, enabled declaration as nullity of

transactions which were nullity from inception being unconscionable transactions between
unequals in which the consent of the tribal transferor was not a free consent and the contract
resulting in the transfer was void on account of absence of the essentials to make a validcontract.
The arguments based on the repealed Article 19(1)(f) and Article 31 and the existing Article
300A of the Constitution have therefore, no foundation and do not require any further
consideration. 18. The argument based on the existing Sub-clause

Section6(a) in The Transfer Of PropertyAct, 1882 (a) 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

Spessucessionis [Clause(a)]

Clause (a) of section 6 excludes mere chances of an heir-apparent of succeeding to an estate

from the category of transferable property of succeeding to an estate from the category of
transferable property. The technical expression for such a chance is ‘spessuccessionis’.

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P.K. Banerjee vs L.J. Simonds AndAnr. on 9 July, 1946, Kolkata

Considered whether the procedure under Section 45, Specific Belief Act, can be invoked in the
circumstances of this case. In the Court below some reliance was placed upon Section 11 of the
Act but no contention with regard to that section has been raised here and reference to it is not
required. The relevant provisions of Section 45 are as follows: Any of the High Courts of
judicature at Fort William, Madras, Bombay and Rangoon may make an order requiring any
specific Act to be done or foreborne, within the local limits of its ordinary original civil
jurisdiction

Jurisdiction of the Court to entertain the application under Section 45. He pointed out that : The
goods are at Chittagong, outside the Court's ordinary original civil jurisdiction, where delivery
under the contract was required to be given; the orders of Court sought by the application are for
the acts of delivery of the goods, of forbearance from selling or otherwise disposing of them and
of forbearance from advertising them for sale; since, under Section 45-the Court is empowered
only to make an order requiring a specific act to be done or forborne-within its territory, the
Courtorder of Court requiring an act to be done with regard to it. The Court cannot order the act
of delivery to be done at all; it cannot order delivery in Chittagong, as that is an act which is
outside its jurisdiction, and it cannot order delivery to be given within its jurisdiction, as the
appellant has no right by which he can require such delivery. 22. An order for the doing of the
act of deli" very is the main and substantial relief sought in the application. The act of selling,
disposing, transferring or dealing with the goods, which

Considered whether the procedure under Section 45, Specific Belief Act, can be invoked in the
circumstances of this case. In the Court below some reliance was placed upon Section 11 of the
Act but no contention with regard to that section has been raised here and reference to it is not
required. The relevant provisions of Section 45 are as follows: Any of the High Courts of
judicature at Fort William, Madras, Bombay and Rangoon may make an order requiring any
specific Act to be done or foreborne, within the local limits of its ordinary original civil
jurisdiction

8|Page JAMIA MILLIA ISLAMIA.

Jurisdiction of the Court to entertain the application under Section 45. He pointed out that : The
goods are at Chittagong, outside the Court's ordinary original civil jurisdiction, where delivery
under the contract was required to be given; the orders of Court sought by the application are for
the acts of delivery of the goods, of forbearance from selling or otherwise disposing of them and
of forbearance from advertising them for sale; since, under Section 45-the Court is empowered
only to make an order requiring a specific act to be done or forborne-within its territory, the
Court

Order of Court requiring an act to be done with regard to it. The Court cannot order the act of
delivery to be done at all; it cannot order delivery in Chittagong, as that is an act which is outside
its jurisdiction, and it cannot order delivery to be given within its jurisdiction, as the appellant
has no right by which he can require such delivery. 22. An order for the doing of the act of deli"
very is the main and substantial relief sought in the application. The act of selling, disposing,
transferring or dealing with the goods.

Ashok Leyland Ltd. vs State Of Tamil Nadu And Anr.on 7 January, 2004,Supreme Court,

Matter, the Parliament enacted Central Sales Tax (Amendment) Act, 2001 and Finance Act,
2002. Suggestions, as regards certain provisions of the said Acts, however, having been mooted
at the Bar, the matter is said to be receiving fresh consideration at the hands of the Central
Government. 16. It is also not in dispute that by enacting Central Sales Tax (Amendment) Act,
2001 by Central Act 20 of 2002, which came into force from 11^th May, 2002, Section 2(g) of
the Act has been substituted by a new sub-section by which the definition of sale has been
widened

sales defined by Article 366(29-A) of the Constitution to enable the levy of Central Sales Tax
inter alia on the transactions involving transfer of property in the goods involved in the execution
of works contract or transfer of the right to use the goods so that now even these transactions are
open to levy by two different States either as inter-State transaction, or intra-State transaction.
Section6A of the Central Act was also amended insofar as in Sub-section (1) thereof the
following words have been inserted: "If the dealer fails to furnish such declaration, then

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Sale' has been defined in Tamil Nadu General Sales Act, 1959 as: "2(n) "Sale" with all its
grammatical variations and cognate expressions means every transfer of the property in goods
(other than by way of a mortgage, hypothecation, charge or pledge) by one person to another in
the course of business for cash, deferred payment or other valuable consideration and includes -
(i) a transfer otherwise than in pursuance of a contract, of property in any goods for "cash,
deferred payment or other valuable consideration; (ii) a transfer of property in goods (whether as
goods or in some other form

Right of offering made at place of worship

The question whether a right to receive future offering at a temple is not transferable has
given rise to a conflict of decision. The Calcutta High Court has held that it cannot be
transferable because the chance that future worshippers will give offerings is a mere
possibility. The Allahabad and Lahore High Court, on the other hand, have held that such
right is transferable on the ground that the right to receive offerings when made is a definite
and fixed right and does not depend on any possibility of the nature referred to in section
6(a). The moment the offering are made the person with the right to receive them is entitled
to appropriate the same. This right is not so uncertain, variable and limited as to pass out of
the conception of law.

The JummaMusjidMercaraBy Its ... vsKodimaniAndraDevaiah And Ors. on 5 November,

1952 S.C

Contains the two Sections6(a) & 43. If it was the intention of the Legislature that in all cases of
transfer whether the transfer was made disclosing the true facts or was made with an erroneous
representation regarding the authority, no effect should be given to the transfer, as the transfer is
prohibited under : Section6(a) it would have stated so and created an exception to Section 43. On
the other hand, the illustration to the section indicates a contrary intention on the part of the
legislature, for in the illustration, on B's dying, A as heir

Transfer of PropertyAct applying Section 43, to the cases of heirs, and there was a specific
illustration to Section 43 which was in point, and the Legislature has not thought fit to delete the
illustration in the amended Act, it is impossible to hold that the illustration is repugnant to the

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provisions of Section6 and is really wrong. Every attempt should be made to reconcile the
provisions of Section 43, together with illustration, with the provisions of Section6. Such
reconciliation is, in our opinion, patent enough. Section6 does not prohibit emphatically the
transfer

transferor to the transferee that he was the full owner of the propertytransferred and was
authorized to transfer it and what was purported to be the propertytransferred was not a mere
chance of succession but the property itself, & the transferee acts upon such erroneous
representation, then if the transferor happens later before the contract of transfer comes to an
end, to acquire an interest in that property, no matter whether by private purchase, gift, legacy or
by inheritance or otherwise, the previous transfer can at the option of the transferee operate on
the interest which has been

VasudevRamchandraShelatvsPranlalJayanandThakarAndOrs on 17 July, 1974 S.C

articles of the Company". A wide definition of "property" in s. 6 of the Transfer of PropertyAct

includes not merely shares as transferable, movable property. but would cover as a separate form
of property a right to obtain shares which may be antecedent to the accrual of rights of a
shareholder upon the grant of a share certificate in accordance with the articles of association of
a company. [540B-E] There is a distinction between "the titles to get on the register" and "the
full property in the shares in a company". The first is acquired by mere delivery

deal with every kind of transfer of property which the law permits. Nor does it prescribe the
mode for every legally recognizedtransfer. Nevertheless, it is an enactment meant for defining
certain basic types of transferand it lays down the requirements both of substance and of form for
their legal recognition and effectiveness. Section5 of this Act gives a wide connotation to
"transfer of pro- perty". All that it requires is that the transferor must be living at the time of the
transferrecognized by the Act.Section6 of the Act lays down that "property

Equitable does not appear to be there. We think that Section6 of the Transfer of
PropertyActJustifies such a splitting up of rights constituting "property" in shares just as it is
well recognized that rights of ownership of a property may be split up into a right to the "corpus"
and another to the "usufruct" of the property and then separately dealt with. Sec. 122 of the

11 | P a g e JAMIA MILLIA ISLAMIA.

Transfer of PropertyAct defines a ",gift". its substantial requirements are : (1) the donor
musttransfer "property", which is the subject-matter of the gift, voluntarily and without
consideration

Section 6(b)A mere right of re- entry for breach of a condition subsequent cannot be transferred
to anyone except the owner of the property affected thereby.

Raja Paul David (Died) AndOrs. vs M. Thiagarajan (Died) And Ors. on 13 June, 1990 S.C

facts and circumstances of the case, Section 55(6)(b) of the Transfer of PropertyAct is squarely
attracted to the case of the plaintiffs and a charge on the property can be created not only against
the seller, but also against all persons claiming under him to the extent of the seller's interest in
the property, for the amount of any purchase money properly paid by the buyer in anticipation of
the delivery and for interest on such amount. Law imposes charge under Section 55(6)(b) of the
Transfer of PropertyAct. According to the learned Counsel

Transfer of PropertyAct? 2. Whether the plaintiffs' claim is barred by limitation? 3. Whether the
plaintiffs cannot rely on the covenants in the sale deed Ex. A-1 in favour of the defendants by the
non-lunatic sister, being a third party to the same. 4. Whether the plaintiffs are entitled to claim
interest? Point No. 1 : For Proper appreciation of the respective contentions of both parties, it is
worthwhile to set out certain admitted facts in this case to decide the point whether the
respondents-plaintiffs are entitled to claim the right under Section 55(6

there was no concluded contract in respect of the half share of the non-lunatic sister and in view
of the finding in the earlier proceedings instituted for recovery of possession of the property
under Exs. B-3, B-4 and B-5 as there was no concluded contract, the first plaintiff is not entitled
to claim the benefit under Section 55(6)(b) of the Transfer of PropertyAct. In this connection, the
learned Counsel drew the attention of this Court to the decision of the trial court which is marked

VasudevRamchandraShelatvsPranlalJayanandThakarAndOrs on 17 July, 1974

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Articles of the Company". A wide definition of "property" in s. 6 of the Transfer of PropertyAct
includes not merely shares as transferable, movable property. but would cover as a separate form
of property a right to obtain shares which may be antecedent to the accrual of rights of a
shareholder upon the grant of a share certificate in accordance with the articles of association of
a company. [540B-E] There is a distinction between "the titles to get on the register" and "the
full property in the shares in a company". The first is acquired by mere delivery

Deal with every kind of transfer of property which the law permits. Nor does it prescribe the
mode for every legally recognizedtransfer. Nevertheless, it is an enactment meant for defining
certain basic types of transferand it lays down the requirements both of substance and of form for
their legal recognition and effectiveness. Section5 of this Act gives a wide connotation to
"transfer of pro- perty". All that it requires is that the transferor must be living at the time of the
transferrecognised by the Act.Section6 of the Act lays down that "property

Equitable does not appear to be there. We think that Section6 of the Transfer of
PropertyActJustifies such a splitting up of rights constituting "property" in shares just as it is
well recognized that rights of ownership of a property may be split up into a right to the "corpus"
and another to the "usufruct" of the property and then separately dealt with. Sec. 122 of the
Transfer of PropertyAct defines a ",gift". its substantial requirements are : (1) the donor must
transfer "property", which is the subject-matter of the gift, voluntarily and without consideration

Section 6(c)An easement cannot be transferred apart from the dominant heritage.

An easement is an incident of the ownership of the dominant heritage and passes with it. It
cannot be detached from the dominant heritage and transferred separately. Section 6(c)
however refers to the refers to the transfer of an existing easement and not to the grant or
creation of an easement. Section also does not refer to release of an easement in favour of the
owner of the servient tenement because such a release effects, not a transfer, but an
extinction of theeasement.

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Padam Chand vs Bharat Singh AndOrs. on 18 November, 1970 delhi

Counsel for the parties that if Jain Mati had only a restricted estate in the property in dispute then
she had no right to make a will and the property would develope on the appellant as the nearest
collateral of her husband JaganNath. On the other hand, if she was the absolute owner of the
property and the will was not proved, then too the property would devolve under Section
15(1)(b) upon the plaintiff as the nearest heir of her husband. The appellant will thus be entitled
to a decree being passed in his favor

Maintenance for life under Ex. P. 3. The interest transferred to her was. thus restricted in its
enjoyment to Jain Mati personally; it could not. Therefore, be further transferred by her in view
of Section6(d) of the Transfer or PropertyAct, 1882 which lays down that an interest in property
restricted in its enjoyment to the owner personally, cannot be transferred by him or her as the
case may be. In support of his argument the learned counsel cited ( 1 )

BasangowdaVirupaxgowda v. IrgowdatiKallangowda (AIR 1923 Bombay 276) (1) and (2)

BulkanSah and others v. Ganga

basis of the lease in his favor as the lease was hit by Section6(d) of the Transfer of PropertyAct.
There was no question in that case of the widow herself being the sole heir of the last male
holder of the property and about her rights under Hindu Women's Rights to PropertyAct (xviii of
1937 as amended by Act Xi of 1938) and the Hindu Succession Act (XXX of 1956). (12) The
argument based on Section6(d) of the Transfer of PropertyAct therefore appears to us to be
wholly devoid of substance

Section 6[d(d)] A right to future maintenance, in whatsoever manner arising, secured or

determined, cannot be transferred.

AmirthamKudumbahvsSarnamKumdumban on 16 April, 1991 S.C

against which the present appeal preferred by the appellant-defendant. The appellant contended
that the suit was hit bysection6(e) of the Transfer of PropertyAct, as all that the ex-minor was in
a position to transfer was the mere right to sue to set aside the sale and recover possession of the

14 | P a g e JAMIA MILLIA ISLAMIA.

propertytransferred by the natural guardian; and 390 that a person claiming under a minor,
referred to in section8(3) of the Hindu Minority and Guardianship Act, 1956 can only be a legal
representative of a deceased minor and not a person succeeding

that the provisions contained in Section6 of the T.P. Act and Section 8 of the Guardianship Act
were to be read together. On the question, whether the respondent in his capacity as a transferee
from the ex-minor was competent to bring a suit to set aside the sale effected by the minor's
guardian, who had sold the property without obtaining the permission of the Court as required
under Section 8 of the Hindu Minority and Guardianship Act 1956 and without any legal
necessity. Dismissing the appeal of the appellant-defendant this Court, HELD

Question whether the suit is hit bysection6(e) of the T.P. Act. Counsel says that all that the ex-
minor was in a position to transfer was her mere right to sue to set aside the sale and recover
possession of thepropertytransferred by her father as her natural guardian. The property itself had
been transferred by the father prior to its sale by the ex-minor. The minor had, therefore,
noproperty to sell, except a right to set aside the sale. Accordingly, whatever transfers that was
effected by the minor in favour

Section 6 (f) A public office cannot be transferred, nor can the salary of a public officer,
whether before or after it has become payable.

BadriNath&AnrvsMst. Punna (Dead) By Lrs&Ors on 15 February, 1979 S.C

raised on behalf of the defendants: (i) The chance of future worshippers making offerings to the
deity is a mere possibility of the nature referred to in clause (a) of section6 of the Transfer of
PropertyAct and is not property which can be transferred or inherited. (ii) The right to receive
offerings is not a transferable or heritable right. (iii)The provisions of the Hindu Succession Act
do not apply to the case in hand. (iv) According to the custom governing the shrine of
ShriVaishno Devi Ji, only the abovementioned four subcastes were entitled to share

that such a right is not transferable. That the right to receive the offerings when made is a
valuable right and is property, admits of no doubt and, therefore, that right must, in view of the
provisions of section6 of Transfer of PropertyAct, be held to be transferable, unless its transfer is

15 | P a g e JAMIA MILLIA ISLAMIA.

prohibited by the Transfer of PropertyAct or any other law for the time being in force." In view
of these observations which were adopted and followed in Nand Kumar Dutt v. Ganesh Dass, the
Full Bench, being in agreement therewith, proceeded to determine whether

Bench noted that the properties to which the Hindu Succession Actdoes not apply are only those
which find enumeration insection 5 thereof, that the right to share the offerings is not one of
those properties and that, therefore, such a right could not but be governed by the provisions of
the Act. In repelling the last contention the Full Bench relied upon the provisions of the Hindu
Succession Act which over- rides all customs or usage being part of the Hindu Law as in force
immediately prior to the commencement of the Act and concluded thatthe custom

Section 6(g) Stipends allowed to military 7[, naval], 8[air- force] and civil pensioners of
9
[Government] and political pensions cannot be transferred.
A public office has defined by code of Civil Procedure, and Indian Penal Code. Since the public
is interested in the salaries attached to them are made non-alienable.

Ramji Dixit AndAnr. vsBhrigunath And Ors. on 29 November, 1963 Allahabad

thinkSection6 of the Transfer of PropertyAct has any relevancy to the question whether Section
152 of the Zamindari Abolition and Land Reforms Act confers as wide power of transfer on a
female bhumidhar as on a male bhumidhar. The power at transfer conferred by Section 152 is
subject to the conditions contained in Ch. VIII; the express mention of only this restriction
Indicates that there is no other restriction and that in a case to which the conditions do net apply
the power of transfer is as wide as it can be. No restriction on the power

Rights of a bhumidhar under or in accordance with the provisions of this Act." I would follow
from this provision that the bhumidhars under the Act came from two sources, i.e., firstly, those
who as a consequence of the acquisition of the estates became bhumidharsunder Section 18 of
the Act, and secondly, those who acquired those rights, under or in accordance with the

7
3 Ins. by Act 35 of 1934, s. 2 and Sch
8
4 Ins. by Act 10 of 1927, s. 2 and Sch. I.
9
The word" Government" successively subs. by the A. O. 1937 and the A. O. 1950 to read as above.

16 | P a g e JAMIA MILLIA ISLAMIA.

provisions of the Act. Section 18 of the Act reads as follows. "18(1) Subject to the provisions of
SECTIONS 10, 15, 16 and 177, all lands: (a) in possession of or held or deemed

Provides that "The 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." To my mind the provisions of Section 152
of the Act are only enabling ones. That provision was not intended to nor does it govern the life
of a transfer or alienation. It does not also determine the period of its validity. That Section 152
of the Act is permissive or enabling is apparent, apart from its own language, also from the
provisions of Section 153 of the Act which provides that

Section6(h) No transfer can be made (1) in so far it is opposed to the nature of the interest
affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23
of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be
transferee.

PranballavSahaAndAnr. vs Sm. TulsibalaDassi And Anr. on 16 May, 1958 S.C

Reference in Section6(h)(2) of the Transfer of PropertyAct to the Indian Contract Act has led to
a most unfortunate confusion between property and contract. We have uncritically adopted in
India decisions on contract and have applied them to property without marking the difference
between the two in the respective Indian Statutes. The reference to the Contract Act in the
Transfer of PropertyAct is for the purpose of determining the unlawful object or consideration.
Whether the object or consideration is unlawful, the test is to be found in Section 23 of the
Contract Act. The effect

Contract Act by itself under Section 23 is that the agreement is void. In Section6(h)(2) the
interdict is "no transfer can be made." In other words, an apparent and attempted transfer for an
object or consideration which is unlawful is no transfer in law. It does not succeed in transferring
any property. Section6 of the Transfer of PropertyAct deals with property which cannot be
transferred. 21. The effect, therefore

Section6(h)(2) of the Transfer of PropertyAct is, when applied to the facts of this case relating to
immorality, that no transfer of this property has taken place in law because the object or
consideration is immoral. Therefore, it follows from the plain construction of the statute that a

17 | P a g e JAMIA MILLIA ISLAMIA.

transfer of property for immoral consideration or purpose is no transfer in law and it does not
succeed in transferring the property to such a transferee. No estate passes under such an attempt
at transfer. The point then is that if a transferor transfers the property

10
Section 6 (i) [ Nothing in this section shall be deemed to authorize 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

IstakKamuMusalmanAndGhelabhai ... vsRanchodZipruBhate on 12 October, 1945 bomboy

Keeping as his mistress. This fact is recited in the deeds, but there is ho reference in them to the
'continuance of the cohabitation in future. Mr. Shah, the learned counsel for the plaintiff,
contends that although they are nominally gifts, they are really transfers, having for their object
or consideration past cohabitation, and that they are void under Section6(/t) of the Transfer of
PropertyAct, read with Section 23 of the Indian Contract Act. 5. Under Section 23 of the Indian
Contract Act, the consideration or object of an agreement is unlawful if the Court regards it as
immoral or opposed to public policy, and every agreement of which the object or consideration is
unlawful is .void. The second clause of Section6(/i) of the Transfer of PropertyAct says:- No
transfer can be made for an unlawful object or consideration within the meaning of Section 28 of
the Indian Contract Act, 1878. 6. There is no doubt that a transfer in consideration, of future
illicit cohabitation is for an immoral consideration and is, therefore, voids. But there is a
difference of opinion as to whether past cohabitation can or cannot be a valid consideration

Conveying some property to the defendant, who had attended upon him during his last illness.
The plaintiff contended that the document was a deed of gift and required registration. The
defence was that it was not a transfer without consideration, but the consideration consisted of
the services rendered by the defendant during his illness so as to be good consideration under

10
Added by Act 3 of 1885, Section 4.

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Section 2, Clause (d), of the Indian Contract Act. There was no allegation that at the time the
defendant was attending on the deceased, there was any promise or agreement of payment, much
less of payment by transfer of laud, and that "while there was hope on the part of the defendant,
there was no promise or agreement on the part of the deceased.'' Hence the transfer was held to
be a gift without consideration. The same view was taken by Chandavarkar J. in Madliavrao v.
Kmhibai (1901) 12 Bom. L.R. 9, where he observed (p. 12): The rendering of the services was
not the consideration but merely the motive of the grant." As observed in Tia-Hi Muthukanna v.
ShunmugaveliiPillai (1905) I.L.R. 28 Mad. 413, 419 the question whether what is transferred

Facts of the particular case. 18. Although a document is styled as a gift, yet under proviso (6) to
Section 92 of the Indian Evidence Act it is open, to a party to prove that there was a
consideration for it or that it was passed in the discharge of an antecedent agreement. Under
Section 25 of the Indian Contract Act an agreement made without consideration is void, but
under Clause (2) of that section an agreement is valid if it is a promise to compensate, wholly or
in part, a person who has already voluntarily done something for the promisor. As held in
SindhmShriGanpatsingji v. Alirah-am alias Tajir (1895) I.L.R. 20 Bom. 755 this covers cases
where a person without the knowledge of the promisor or otherwise ,than at his request does the
latter some service and the promisor undertakes to compensate him for it. Such service is not
consideration within the definition in Section 2(d). ,But service rendered at the request or desire
of the promisor is consideration under that section. Past illicit cohabitation is service of the latter
class, since in the words of Macleod C.J. in Ilussemali v. Dinbai

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 BIBLIOGRAPHY

1. Solil Paul (Rev.), Mulla’s The Transfer of Property Act (9th ed. 1999)
2. PoonamSaxena, ‘Property and Easement’, Halsbury Laws of India;
Vol. 12 (2002).
3. PoonamPradhanSaxena, Property Law (2006)
4. Vepa. P. Sarathi (Rev.) G.C.V. SubbaRao’sLaw of Transfer of Property
(3rd ed., 2002)
5. Sen Gupta (Rev.), Mitra’sTransfer of Property Act (18th ed., 2004)
6. S.M. Lahiri, Transfer of Property Act (10th ed., 1986)

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