INTRODUCTION

Secti0n 6 0f the transfer 0f pr0perty talks ab0ut what can be transferred, it lays d0wn certain
restricti0ns 0n a pers0n’s right t0 transfer a pr0perty which at that p0int 0f time is n0t 0wned by
him. The d0ctrine 0f transfer is based 0n the legal maxim “alienati0n rei prefertur juri
accrescendi” which means law fav0rs alienati0n t0 accumulati0n. It implies that if s0me0ne
attempt t0 interfere with this p0wer 0f the 0wner i.e. t0 take away his right t0 alienate the
interest which is vested in him sh0uld be fr0wned up0n by the law. It als0 includes
circumstances where a pers0n will acquire the pr0perty in future by way 0f inheritance 0r
successi0n, since he d0esn’t have any title as 0f n0w and it is n0t certain whether the transfer
will take place 0r n0t s0 as per this secti0n he is n0t all0wed t0 transfer it and even if any deed is
executed in this behalf by such pers0n it will be v0id ab initi0. Since the chance 0f an heir
apparent t0 succeed t0 the pr0perty 0f an intestate theref0re cann0t be transferred. This chance is
als0 referred t0 as specs successi0nis.

Secti0n 6 pr0vides f0r ten excepti0ns under which a pr0perty cann0t be transferred, these are1:

 Assignment 0f After-Acquired Pr0perty under c0mm0n Law

 Chance 0f an Heir Apparent
 Heir Apparent
 Transfer 0f Specs Successi0nis is v0id ab initi0
 The chance 0f a Relati0n 0btaining a Legacy 0n the Death 0f a Kinsman
 A Right 0f Re-entry
 Easement
 Mere right t0 sue
 0ffice and Salary
 Transfer 0pp0sed t0 the Nature 0f Interest

1
Transfer of property Act 1882, Section 6.

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 DOCTRINE OF SPEC SUCCESSIONIS

Pr0perty and interests in pr0perty as a general rule are transferable. This principle is based 0n the
maxim “alienati0n rei prefertur juri accrescendi” which means law fav0rs alienati0n 0ver
accumulati0n 0f wealth and pr0perty as it is in the interest 0f ec0n0my and c0untry as a wh0le.
This is the reas0n that law tries t0 pr0tect the rights 0f the 0wner regarding alienati0n. This rule
is n0t abs0lute there exists certain restricti0ns 0n this, the excepti0ns are:

a. The pr0perties which cann0t be transferred 0therwise as given in TPA. These are th0se
pr0perties which are prescribed under secti0n 6 clauses (a) t0 (i).
b. The pr0perties which cann0t be transferred by any law, f0r the time being, in f0rce in
India. This is in relati0n t0 the excepti0ns that are made by the general laws 0f India i.e.
0ther than transfer 0f pr0perty act.

In this pr0ject we are 0nly c0ncerned with the first excepti0n which is stated in the first bullet
p0int. Secti0n 6 clause (a) states that

“The chance of an heir-apparent succeeding to an estate, the chance of a relati0n obtaining a

legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be
transferred.”2

This clause deals with the d0ctrine 0f spec successi0nis which can be interpreted as expectati0n
0f successi0n, i.e., a p0ssibility 0f getting pr0perty in future thr0ugh successi0n (inheritance 0r
will).3 It is theref0re regarding transfer 0f a pr0perty t0 which the transfer0r 0nly has a chance t0
get and the said pr0perty d0es n0t bel0ng t0 him as 0f n0w.

Secti0n 6(a) which talks ab0ut spec successi0nis has three c0mp0nents:

a. Chance 0f an heir apparent

b. Chance 0f getting pr0perty under will
c. Any 0ther p0ssibility 0f like nature

2
Transfer of Property act 1882, s 6(a).
3
Mulla and Dr Poonam Pradhan, “Commentary on Transfer of Property Act” 2013.

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HEIR APPARENT
The term “heir apparent” is an English term and is based 0n the maxim mem0 est heres viventis
which means that a living pers0n d0es n0t have any heir. An heir is a pers0n wh0 succeeds t0 the
pr0perty 0f an0ther 0n his death if such pers0n wills the pr0perty t0 him, 0r dies intestate. The
reas0n behind n0t all0wing an heir apparent t0 transfer the right is that he is n0t a legal heir but
apparently an heir and all that he c0uld say is that he might bec0me the heir 0n the death 0f his
ancest0r if the latter has n0t in the meantime, disp0sed 0f the estate by a will 0r 0therwise. The
chance 0f an heir apparent is dependent 0n tw0 assumpti0ns, the first 0ne is that the pers0n will
die intestate i.e. with0ut making a will and the sec0nd 0ne is that the heir apparent will survive
the 0wner 0f the pr0perty.4 For Example, father and son are entitled to inherit the property of
each other. If father dies first, the son becomes father’s heir and inherits the properties of his
father. But if son dies first i.e. while the father is still alive, he cannot inherit father’s property.
Who would die first, i.e. who survives whom, is not known because it is uncertain future event.
Accordingly during the life of father, the son cannot be called as his heir; he is simply heir-
apparent of his father

As per the judgment 0f st0ckley v. Pars0ns,5 it is indisputable law that n0 0ne can have any
estate 0r interest, at law 0r equity, c0ntingent 0r 0ther, in the pr0perty 0f a living pers0n t0
which he h0pes t0 succeed as heir at law 0r next 0f kin 0f such living pers0n. During the lifetime
0f such a pers0n n0 0ne can have m0re than a spec successi0nis i.e. an h0pe 0f succeeding the
pr0perty.

CHANCE OF OBTAINING A LEGACY

The chance 0f a relati0n 0btaining a legacy is als0 a mere p0ssibility, it is even m0re rem0te and
distinct than the chance 0f successi0n 0f an heir and theref0re it is als0 n0t transferable. Even if
the maker 0f the will has an agreement with the heir regarding the will. For example, if a father
makes a will in favor of his son, he will still remain a spec succession because his chances of

4
Swasit Mahapatro, <https://www.legalindia.com/spes-successionis-as-an-exception-to-transferability/> accessed
on 9 April 2018.
5
Stockley v Parsons [1890] 59 LJ Ch 666.

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getting the property depends on two things, first is whether he survives his father or not and
second being that the will remain unchanged as it can be altered during the lifetime of father.

The reas0n behind n0t all0wing the transfer 0f such pr0perty bef0re the executi0n 0f the will is
same as that 0f an heir apparent i.e. it is als0 based 0n assumpti0n that such pers0n will survive
the 0wner and the sec0nd assumpti0n is that the will 0r legacy will remain intact. In additi0n t0
these reas0ns 0ne 0f the main reas0n is that the will 0f a pers0n c0mes int0 f0rce 0nly after his
death and the transfer 0f pr0perty act deals 0nly with leaving pers0ns, s0 will is n0t a subject
matter 0f TPA.

ANY OTHER MERE POSSIBILITY OF A LIKE NATURE

This expressi0n is t0 be read “ejusdem generic” t0 chance 0f heir apparent and 0f legacy. It
indicates that the p0ssibility referred t0 herein must bel0ng t0 the same categ0ry as the chance 0f
an heir apparent 0r the chance 0f a relati0n 0btaining a legacy. These similar p0ssibilities cann0t
be transferred. The quantum 0f such things t0 happen is s0 uncertain, variable and limited in
nature as t0 pass 0ut 0f the c0ncepti0n 0f law.6

For example, the possibility of winning a lottery or a prize in a certain competition; the chance of
obtaining rent in respect of a future possible lease that may come into existence as a result of
renewal; the future wage of laborer before it is earned etc.

6
Dr R.K Sinha, “The transfer of Property Act 14 th edition” CLA 2013.

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 RELATION BETWEEN SECTION 6(A) AND SECTION 43

Secti0n 43 0f transfer 0f pr0perty act reads as”

Transfer by unauthorized person who subsequently acquires interest in pr0perty transferred:

where a person fraudulently or erroneously represents that he is authorized to transfer certain
immovable property and professes to transfer such property for consideration, such transfer
shall, at the option of the transferee, operate on any interest which the transferor may acquire in
such property at any time during which the contract of transfer exists.7

Main c0mp0nents 0f this secti0n are

a. Fraudulently 0r, err0ne0usly representing that the pers0n has the auth0rity t0 transfer the
said pr0perty
b. Transfer is f0r c0nsiderati0n
c. The transferee has acted 0n the said inf0rmati0n
d. Such transfer0r acquires the auth0rity subsequently

N0w the main c0nflict that arises between secti0n 6(a) and secti0n 43 is, as per secti0n 6(a)
transfer 0f spec successi0nis is v0id ab initi0 and secti0n 43 states that he such pers0n acquires
the pr0perty later 0n then he sh0uld give that pr0perty t0 the transferee.

This c0ntenti0n is raised in many cases and there exists tw0 sch00ls 0f th0ught that try t0
answer this questi0n, b0th are c0ntrary t0 each 0ther. 0ne view was that whenever a pers0n
pr0p0ses t0 transfer any pr0perty which he h0pes t0 get, secti0n 6(a) shall apply whether the
transferee has kn0wledge 0f the defect 0f title 0r n0t. In the case 0f Annada v. G0ur m0han8, it
was held that the principle laid d0wn in secti0n 43 has n0 applicati0n where the transfer relates
t0 a pr0perty which has been expressly rendered inalienable by the legislature. The relevance 0f
secti0n 6(a) cann0t be taken away with the help 0f secti0n 43.

7
Transfer of property act 1882, Section 43.
8
Annada Mohan Roy vs Gour Mohan Malik [1920] SCC OnLine 154 (cal).

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In c0ntrary t0 this, the 0ther view was that secti0n 6(a) applies 0nly where the transfer is
intended in substance t0 be a transfer 0f a p0ssibility t0 the kn0wledge 0f b0th parties, and n0t
where the transfer0r purp0rts t0 have present interest in the pr0perty and the transferee is n0t
aware 0f the defect 0f title. In a situati0n like this secti0n 43 shall apply.

This c0ntr0versy was put t0 rest by the judgment 0f the Supreme C0urt in Jumma Masjid v. K.
Deviah.9 The Supreme C0urt 0bserved that secti0n 43 applies t0 all transfers which fulfill the
c0nditi0ns prescribed therein and it makes n0 difference in its applicati0n, whether the defect 0f
title been in the transfer0r arises by reas0n 0f his having n0 interest whats0ever, in the pr0perty
0r, 0f his interest therein being that 0f an heir apparent. Even where a pers0n having a mere
specs successi0nis represents that he is the 0wner there0f, and transfer it t0 an0ther he is
precluded fr0m questi0ning the validity 0f the transfer, if he later 0n succeeds theret0 0r acquires
an interest therein.

The c0urt further 0bserved that secti0n 6(a) and secti0n 43 relate t0 tw0 different subjects.
Secti0n 6(a) enacts a rule 0f substantive law while secti0n 43 enacts a rule 0f est0ppel which is
0ne 0f evidence 0r pr0cedural law. The tw0 pr0visi0ns 0perate 0n different fields and under
different c0nditi0ns and there is n0 gr0und f0r reading a c0nflict between them 0r f0r cutting
d0wn the ambit 0f 0ne by reference t0 the 0ther. B0th 0f them can be given effect 0n their 0wn
terms in their respective spheres. T0 h0ld that transfers by pers0ns having 0nly spec successi0nis
at the date 0f transfer are n0t within the pr0tecti0n aff0rded by secti0n 43 w0uld destr0y its
utility t0 a large extent.

It is submitted that since 0ne 0f the c0nditi0ns f0r the applicability 0f secti0n 43 is that the
transferee must have been misled 0n the err0ne0us representati0n 0f the transfer0r, theref0r, if
the transferee had n0 kn0wledge 0f the specs successi0nis then secti0n 43 is t0 apply. But, if the
fact is kn0wn t0 the transferee there is n0 questi0n 0f his being misled; there is then c0llusi0n
and secti0n 6(a) is t0 apply. This decision of the Supreme Court is further rectified by the high
court of Kerala in a recent case where they held that both these sections operate on different
tangents and there is no point of intersection between them so as to give rise of a conflict

9
Jumma Masjid v K. Deviah [1962] AIR 847 (SC).

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between these two sections. 10 And the argument that section 43 is not applicable on the cases of
spec successions is based on flawed understanding of concepts and there is nothing in the
language of both of these sections on which this argument can be relied upon.

10
Changaroth Laxmi Amma v C. Mohan Kumar [2017] SCC OnLine 13927 (ker).

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