, mere right if re entry means a right to resume possession un accompanied by any right in the property, Clause B of Sec 6 Constitute second exception to the general rule of transferability, it postulates that a mere right of re entry for the breach of the condition subsequent cant be transferred to anyone except the owner of the property affected thereby. This is the right which a lessor keeps reserved for himself after partying with the whole property estate. The right of re entry is that right which the lessor has against the lease of his property for the breach of an express condition, which provides that on its breach the lessor may re enter. The reason being so that a person cant detach a portion of limited right of re entry This right of lessor is non-transferable.and transferit in favor of another person without giving him the lease hold right in the property, This concept can be termed as “Lesser cant isolate the mere right of re entry from the entire property so as to transfer it to some else, lessor has to transfer the whole right in the property. The lessor can transfer his right of re entry at the expiry of the lease by way of sale or mortgage. Illustration: the right of re entry in the following instance can’t be transferred. • Where A leased his land to B on the express condition for a period of 5 yrs that B will not dig a land well on his lease land, however B digs a well on the land. Transfers his right of re entry upon the Breach of Condition B to C and ask him to take possession of the land from B. here C can’t take possession from B because A has transferred him the mere right of re entry which is Non-transferable. Clause (C) Mere right of Easement are Non-transferable: The 3rd exception to the general rule of transferability is given which says that’s easement can’t be transferred apart from the dominant heritage. According to Sec 4 of Easement Act of 1882, An Easement is the right of the owner or occupier of a certain lease possessive over the land of another person. In simple words easement is the right which existsfor the beneficial enjoyment of land and is exercised upon the land of another person. Easement is an incident of Ownership of the dominant heritage, it is the right which is attached with the property, it has no independent existence, and therefore it can’t be detached from the dominant heritage and transferred separately In the words of Dr Shaw, easement is the appendage to the dominant heritage and can’t exist without it, therefore Sec 6 c provides an exception that mere easementary rights apart from dominant heritage can’t be transferred. Illustration. A is the owner of the House…… Clause (D) Restricted Interest non transferable. Clause D dealing with the fourth exception says that an interest in the property restricted to its enjoyment to the owner personally can’t be transferred by him, the reason being so that a person’s right or interest which is only for his enjoyment can’t be transferred by him for E.g., where a person A gives a Land to another Mr. B for his personal use only, B can’t sublet or extend that use if land to any third person, transfer of such interest would defeat the whole purpose of restriction. Under this clause For E.g.: 1. Club Membership Card are Non-transferable due to restricted interest. 2. Religious Offices like those of Mutwali of the Wakf are Non-transferable A Trustee of a trust can’t alienate his Office because his office is base on personal confidence. Clause D (d) Right to future Maintenance (Non- transferable). The fifth exception to clause ‘Dd’ provide that a right to future maintenance in whatever manner arising secure or determine can’t be transfer right to future maintenance is for the personal benefit of person to whom it is granted therefore it can’t be transfer. The right to future maintenance may have been secure by a charge on the property or its income or in any other manner. Although the right of maintenance is non transferable but the arrears of maintenance can be transferred in knee of the Indian cases it has been held the right of maintenance is the Personal right of Hindu window which is incapable of transfer but arrears of maintenance can be attached and sold like any other debt. Clause (E) Bare (Naked) Right to Sue can’t be transferred. Clause E Containing the 6th exception and it provides that a mere right to sue can’t be transferred that is to say a bare right to sue can’t be conveyed or transmitted because. It is always an indefinite right and further such a right is personal to the party, mere right to sue is not a property and such it can’t be transferred The theory is bases on the dictum that mere right to sue means a right to sue unconnected with the ownership of any property. The word to sue means To make a legal claim or to initiate legal proceedings. Right to Action for damages in tort or Breach of Contract or bare right to sue and therefore can’t be transferred. The social policy underlying not transferability of mere right to sue is to prohibit the practice of gambling over litigation. Such transfers offend the English Law of maintenance and champerty such transfers or contracts are also forbidden U/s 23 of Contract Act on the ground of being against the Public policy. In England this is called a naked right of litigation and it is regarded non-assignable or Common Law. Clause (F) Public Office non-transferable. The 7th exception to the general rule of transferability is that a Public office can’t be a transferred not the salary of Public Office whether before or after it has become payable can be transferred. Public office a position where the occupant has a legal authority to exercise officially a government sovereign power for a fixed period of time. These interest are made nontransferable to ensure the dignity of office held by him and proper performance of his duty, It is based on the principle (where the law assign the salaries or fees to any office, it is for the purpose of upholding the dignity an performing the duties of that office, and the policy of law will not allow the officer to bargain away those fees or salaries to anyone else). A person is chosen to hold a public office for the qualities Personal to him and if he is allowed to transfer it, there will be possibility or likelihood that Public duties may not be discharged. Clause (G) Stipends and Pensions (Non-transferable). Clause ‘G’ consisting of 8th Exception which provides that stipends allows to military, naval, air force and civil pensioners of the govt can’t be transferred which includes gallantry awards conferred on a person for his achievements or services render in honor of the country which includes pride of Performance etc The term pension means a periodical allowance granted not in respect to any right to office but on account of past services render in a department upon retirement from it. Clause ( H) No Transfer to be made. a) If it is oppose to the nature of the interest. If the nature of Property to be transferred doesn’t admit of such transfer, the transfer is not valid there are certain things know as res-communes (which are in the natural form belonging to no one) or Res-nullius (which are not owned by any one) e.g. Air, space, sunlight, sea etc The reason being so that these things are given by the nature and no body hold or posses it, if anyone is tries to transfer such a thing it would be oppose to nature of its interest. b) If it is for an unlawful object. A transfer can’t be made if it is for unlawful object or consideration, the reason being so it offends Sec 23 of Contract Act. C) If it is to a person legally disqualified. A legally disqualified Person can’t be a transferable and the property can’t be transferred to him, Sec 136 of The T.O.P Act disqualifies certain person to be transferee of any Actionable claims that is to say a Judge, a Legal Practitioner or an officer of the court are legally disqualified from purchasing any actionable claim Clause(I) Un-transferable interest. These kinds of interest which are restricted in Nature right from the very exceptions in the deed or agreements having restrictive covenants are non-transferable interest. For E.g. Clause I provides that nothing in this section authorize a tenant having an untransferable right of tenancy to sublet the premise of anyone else. Likewise the former of an estate In respect of default committed in paying the revenue can’t transfer his interest or the lessee of a property under the management of court of wards can’t transfer his interest and finally restrictive covenants in the lease not to transfer to a particular sect or not to use it for commercial purpose. ➢ Sec 13 & 14. Transfer to Unborn Person Sec 13 provides that the property can’t be transferred directly to an unborn person but It can be transferred for the benefit of unborn person. Sec 13, 14 & 18 are the three sections of T.P Act which deals with the law relating to the transfer to an unborn person. Now one of the Essentials of the valid transfer is that the transferee must be a living Person therefore a transfer can’t be made directly to an unborn person. But on a Transfer of Property an interesting there may be created for the benefit of such unborn person, subject to such restrictions set out under section 13 & 14. For transfer of Property for the benefit of unborn person following preconditions are necessary. 1. Prior life interest must be created in favor of one or more than one living person at the date of the transfer. 2. An Absolute interest must be transferred in favor of an unborn Person 3. There should be a transfer of Property 4. Interest so created should take effect after the lifetime of one or more person living at the Date of the transfer and during the minority of the unborn person. 5. The unborn person should be in existence at the expiration of the living person in whose favor life interest was created. Unborn Person. An unborn person means a person not in existence even in the mother’s womb. A child in the mother’s Womb is considered to be competent transferee; therefore a property can be transferred to a child in the mother’s womb because the child exists at that time but not to an unborn person who is not even in existing in mother’s womb. Every transfer of Property involves transfer of an Interest for vesting of an interest it is necessary that the transferee must be in existence, Sec 13 creates an exception to it. How long the vesting of an interest in the property may be suspended or last or an abeyance? The Maximum period up to which vesting of Property to an unborn person can be postponed would be up. a. In Case of a Born Child, till the life interest of Prior transferee + Till the Child attains the age of majority. b. In case of a Child in mother’s Womb, till the life interest of prior transferee+ period of gestation that is to say 9 months or 280 days+ He attains the age of majority. When the ultimate Beneficiary is already born at the date of the last person, but doesn’t survive to attain the age of majority, the interest doesn’t vest in him but Reverts back to the transferor or his legal heirs, if he is dead at that time The Rules against Perpetuatory is based on the Broad principles of Public Policy because law favors transferability, alienation rather than accumulation, Property must not be capt stagnant or frozen for the generations to come, this is the rules against perpetuatory. In the Words of Garman, A perpetuatory in the prime sense means disposition of the property is made in alienable for an indefinite period, This section 14 is known as modern rules against perpetuatory, The object of the rule against perpetuator y is to restrain the creation of future conditional interest in the property, In the case of Stany V. Jaeyll reported in 1932 AR England Report page 917 at relevant page 918, (it was observed a great mischief was arise to the public from estates remaining for ever or for a long time in alienable or un transferable from one Hand to another, being damp to an industry an prejudice to the parade to which may be added the inconveniences and distress that would be brought on the families who estates are so fettered). ➢ Section 41 of Transfer of Property Act. Introduction. Sec 41 of The Transfer of Property (T.O.P) Act is based on the Principle of Natural Equity enunciated by the Premi Council in the famous case of Ram Commar vs. Macqueen. “This Maxim is also known as Doctrine of Bonafided Purchaser, it is based on the theory that where one Man Allows another to hold himself out as the owner of the property and the third person purchases it for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless He can over throw that of the purchaser by showing either that he had a direct notice, or something which amounts to constructive notice of the real title, or there existed circumstances which ought to be put upon him and inquiry that if prosecuted would have led to a discovery of It” This Section makes an exception to the rule that a person can’t confer a better title than he has, that is to say the maxim “Nemo Dat Quod Non Habitat” in order to attract Section 41 the following pre condition are necessary. 1. (Not The Transferor is the ostensible owner real Owner). An ostensible owner is one who has all the indicia of ownership without being the real owner and the real owner does not dispel such impression, a benamidar is an ostensible owner, the essence of a benami transaction is to give it appearance of reality, to clothe a fictitious transfer with all the appearance of a genuine one. 2. He is so by the consent express or implied of the real owner. The consent must be a free consent in the light of Sec 14 of Contract Act and it has been held in various judgments that it must be an intelligent consent and not one brought about by coercion, undue influence or misapprehension of legal right. The real is not responsible unless the apparent ownership of the transferee has been permitted or created by him. 3. The transfer must be for Consideration. That is to say the transfer must be based on Value, value refers to monetary consideration that’s is to say prize is pre paid or partly paid or complete consideration has been made 4. The transferee has acted in Good Faith, Taking Reasonable care to ascertain that the transferor have power to transfer. The term Good Faith refers to an element of honesty reflecting bonafided conduct in purchasing the property by the purchaser which is the condition precedent before taking reasonable care. That is to say transferee acted must be honestly and in real belief that is the ostensible owner is the real owner. The transferee purchaser must not have out of suspension that there exists absence if power or the part of Transferer in transferring the property. The term reasonable care as used under section 41 means, such care as an ordinary man of prudence would take, reasonable care is expected from everyone who claims to have purchased the property free from a really existing right, such care take in with due diligence by a Transferee will protect his rights and if he omits to inquire into the title or does not take reasonable steps while purchasing the property he can’t avail the benefit of Section 41. In other words purchaser must be vigilant in purchasing the property from the ostensible owner and he is under legal obligation to investigate his vendors title in dealing with real property a purchaser who will fully depart from it is not allowed to drive an benefit from his willful ignorance and conduct which would have come to his knowledge if he transacted his business while purchasing the property in a prudent manner. The Concept of Bonafided Purchaser or transfer by ostensible owner hinges on the Principle “When one of the two innocent persons suffers from the fraud of a third, he shall suffer who, by his indiscretion’s, has enabled to such third person to commit the fraud”. The rule in England Law is that a court will not permit a man knowingly, though passively to encourage another to spend money under a mistake regarding his title, because the passive looking on is equivalent to active encouragement in perpetuating fraudulent transfer. Exceptions to Section 41. 1. It will not apply in cases of court auction sale. The reason being so that in such kind of sale the property is not sold voluntarily by any person, but it is sold under the orders of the court, an all that passes to the auction purchaser is the interest of judgment debtor, if any existing in the property sold. 2. Section 41 excludes the court sale from its Piggery. It will not apply in cases of transfers made by Minor or through their guardian without having any authority from the Court. 3. It will not apply in case of when the transferee purchaser purchases the property without consideration or with megas consideration knowingly well that the property is the higher value inclusion and with the ostensible owner. 4. It will not apply when the purchaser has taken reasonable care in purchasing the suit property and the negligence and carelessness on his part is proved before the court of law. 5. It will not apply when Bonafided and honestly is lacking on the part of purchaser, when he is fully aware that the transferee has no power or authority to transfer the property. 6. Section 41 will not be applicable, if the subject suit property is transferred during the pendency of litigation and will be hit by the principle of “Lis Pandas”. CASE LAWS 1. 2010 SCMR 18. In order to invoke the provisions of section 41 of transfer of property act 1882, it is necessary that transferor should be ostensible owner (not real owner),his possession should be consented or implied by real owner, the transfer should be for consideration and transferee must have acted in good faith taking reasonable care to ascertain that transferor had the power to transfer? 2. 2002 SCMR 1447. Conditions. Bonafided transferee while seeking protection of section 41, Transfer of property Act, is required to prove on record that he entered into transaction of sale in good faith having believed that the transferor was the ostensible owner of the property, when the conditions as laid down under S.41 of the transfer of property Act namely that the transferor was the ostensible owner, and he was so by consent, express or implied of the real owner, the transfer was for consideration and the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer, the transferee’s rights were fully protected. If the transferee acts, after taking reasonable care to ascertain that the transferor has acted in good faith, then his rights are protected. 3. ➢ Section 52 of T.P Act. This section enacts the doctrine of “Lis Pandas” which is express in the maxim, “Let nothing be altered or renewed or introduced during the pendency of the proceedings”. The Term Lis means Cause or Dispute and Pandas means pendency of litigation. It imposes a prohibition on transfer or otherwise dealing of any property during the pendency of the Suit or Proceedings provide the conditions let down in the Section or Satisfied. The principle on which the doctrine vests is based in the leading case of Balmy Vs Sabie, where Justice Turner Observed, this doctrine is common to the court’s both of law and Equity and rest upon the foundation, that it would be plainly be impossible that any action or suit could be brought to a successful termination, if alienation pendatelite is permitted to prevail. The Plaintiff would be Liable in every case to be defeated by his adversary opponent alienating before the judge went or decree and would be driven to commence his proceedings denovo, subject against to be defeated by the same course of proceedings”. Story in his equity jurisprudence says “Ordinarily it is true that the judgment of a court binds only to the parties and there privies, but he who purchases during the pendency of an action, is held bound by judgment and decree that may be made against the person from whom he drive the title”. Another words the purchaser transferee acquiring the title to the property during the pendency of the proceedings will have to sale and sink with the fate of the transferee as per the judgment and decree of the proceedings. Effect of transfer The Doctrine may briefly be stated as pending proceedings neither party to the litigation can alienate or transfer the immovable property during disputed so as to affect his opponent. The effect of his rule is not to annul or cancel the conveyance, but to render it subservient to the rights of other party to the litigation. The right contemplated under section 52, no doubt can be used either as a sword or as a shield, depending upon such facts as to. 1. What right or interest is transferred? 2. Who the effected party is, 3. How ad in what manner the transfer is likely to affect any party to the pending proceedings. According to the lord crandiwell explain the doctrine of Lis Pandas affects the purchaser not because it amounts to notice, but because the law does not allow the litigant parties to give to others, pending the litigation, rights to the immovable property in dispute, so as to prejudice the opposite parties. The broad principle under this section is to maintain status-Quo, unaffected by the act of any party to the litigation pending its determination. In other words the object of this sec is to secure the property till litigation is over. Pre-conditions. In order to attract the doctrine of Lis Pandas the following preconditions must exist. 1. Suit or Proceedings must be pending. 2. It must be pending in the Court of competent jurisdiction. 3. In the proceedings right to immovable property must be directly or specifically in dispute. 4. Suit or Proceedings must not be collusive. 5. Immovable property must have been transferred or otherwise dealt with without permission of the court. 6. Alienation must affect the right of any party to the litigation. SECTION 53: Fraudulent Transfer. The bases of this section is that one or to be Jus before being generous, the transfers refers to in this section 53 must be valid transfers and must be binding between the parties, but it is voidable at the option of the creditors whose rights are so defeated or delayed by the act of the transferor, this section does not include transfers by way of benami, In fact the principle is based U/S the transfer should be a real one and must be applicable to immovable properties only, the essential requirements of Section 53 is 1. There must be a transfer of Immovable property. 2. Transfer must have been made with an intent of defeat and delay that is to say to prolonged hamper or to curtail the rights of creditor so as to jeopardize his claim. 3. The transfer shall be voidable at the option of the creditors whose interest have been defeated or delayed. The period of limitation of filing of a suit against a fraudulent Transfer is governed by the…….and the period of limitation is 6 years from the time when the right to sue accrued. Under the general law if the creditors sue……transfer the Burden of proving rest on such creditors to make out a case under this section 53 establishing Prima facie that the intention of debtor or transferor was to defeat or delayed the creditors and he deliberately suppressed such a fact from him, Secrecy is a badge of fraud one can say un explain secrecy is considered to be a badge of fraud.
