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Subject: Transfer Of
Property
Project Topic: Contract to Right of Expectancy under Transfer Of
Property Act: A Critical Study

Submitted to: -

Submitted by: -

Dr. Kiran Kori

Faculty
Transfer Of Property

Rohit Mohan
Roll No. 116
Batch XII

Table of Contents
01. Introduction
02. Transfer of Spes Successionis under Section 6(a)
a) Scope and Object
b) Essentials of the Rule
03. Doctrine of Estoppel under Section 43
a) Scope and Object
b) Essentials of the Doctrine
04. Distinction between Section 6 (a) and Section 43
05. Case Study
06. Conclusion

1.Introduction
Clause (a) of section 6 of the Transfer Of Property Act excludes mere chance of an heir apparent of
succeeding to an estate from the category of transferable property. The technical expression for
such a chance is Spes Successionis. During the lifetime of a person,the chance of his heir
apparent succeeding to the estate or the chance of a relation obtaining a legacy under his will is a
Spes Successionis(chance of succession). Such an expectancy does not amount to an interest in
property and cannot be made the subject matter of a transfer. The paper aims at analyzing the
position of the same while looking at a case study to understand why this is an exception to the
general rule and how it is different from other cases of a like nature.
Except as specified in various clauses of s.6 of the act,property of any kind may be transferred.
Therefore,general rule is that property of any kind may be transferred as laid down in s.6 and the
person pleading non-transferability must prove the existence of any usage or custom which
restricts the right of transfer. Clause (a) of section 6 of the transfer of property act discusses the
chance of an heir apparent to succeed to the property. A person having interest which is
spessuccessionisi.e mere expectancy to succeed to the property in future is not a right and is not
capable of being transferred. Such a person cannot bring a suit on the basis of such chance of
succession. Similarly,a gift of spes successionis is invalid and confers no title on the donee.
Where the transfer is not of the right of expectancy of an heir apparent but of the property itself, it
cannot be said to be a transfer of a mere chance to succeed. Thus,when a person is not heard of for
a long time and is believed to be dead,an agreement to transfer the property,entered into by his
brother who is in enjoyment and possession of the property in dispute,is not a transfer of the right
of expectancy,but of the property itself and is not hit by cl (a) of s.6

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The Act merely defines certain expressions used in relation to transfer of property by act of
parties and amends the (then) prevailing rules governing the same. It therefore does not
purport to introduce any new principle of law. The important words used in the Act are by
act of parties, and therefore, it applies and governs the transfer by act of parties only and
does not govern the transfer that takes place due to operation of law. Accordingly, it does not
govern transfers of property through court auction, forfeiture, acquisition or due to
insolvency proceedings or government grants. It also does not govern transfers of property
through intestate or testamentary succession.
One of the basic objectives of the Act was to bring in harmony the rules relating to transfer
of property between living persons and those applicable in case of the devolution of the
same, in the event of death of a person, through intestate and testamentary succession. The
Act also seeks to complete the law of contract, as most of transfers primarily arise out of a
contract between the parties. The Act has also, by providing for the compulsory registration
of the transfers, changed the nature of a transfer of property form a private to a public affair.
Essentials of Valid Transfer: However, for a valid transfer of property whether movable or
immovable, the compliance of the following conditions must be noticed under the Act
(a) The property must be transferable (Section 6).
(b) The transfer must be competent to transfer (Section 7).
(c) Transfer must not be opposed to the nature of the interest affected thereby (Section
6(h) (1).
(d) The consideration or object of transfer must be lawful (Section 6 (h) (2).
(e) The transferee must be competent to take transfer (Section 6(h) (3).
(f) It must be made in the manner and in the form required by the Act, if any (Section 9).

2. Transfer of Spes Successionis under Section

6(a)
A] Scope and Object:
1. General Rule of Transferability: The general policy of law is to promote free alienation
and circulation of property-alienation rei praefertur juri accreseendi (i.e. alienation is
favoured by the law rather than accumulation). Therefore, transferability of property and
interests in property is the general rule.

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2. Exceptions to the Rule of Transferability: Non-transferability wherein law prohibits the
transfer of property in certain cases creates an exception to this rule. Clauses (a) to (i) of
Section 6 enumerate ten exceptions wherein a property is not transferable.
3. Clause (a) of Section 6 (spes successionis): Section 6(a) excluded the chance of an heirapparent of succeeding to an estate from the category of transferable property. The technical
expression for such a chance is Spes Successionis. Therefore, the law contained in this
section 6 applies only when the transferor does not possess a valid title to the property and is
merely hoping to acquire one in future, or has an interest in property that is solely by its very
nature created for his personal enjoyment, or as a rule of public policy, transfer of such
interests in property should not be allowed to be transferred, a transfer of property in such
cases by him, are prohibited.
For instance, A hopes to succeed to his fathers property on his death. His acquisition of this
interest is based on a hope or expectancy that may or may not materialize. If he is permitted
to transfer the same, it may create confusion and conflict claims later on. Therefore, in
attempt for achieving this object, the law does not permit him to do so.

B] Essentials of the Rule: The essentials of aforesaid said rule are enumerated in
the language of the section 6(a). This section is read as follows:
Section 6 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.
1. The chance of an heir apparent
(a) Heir Apparent: The term heir apparent is an English term and is based on the maxim
nemo est heres viventis which means that a living person does not have any heir. An heir is a
person who succeeds to the property of another on his death if such person wills the property
to him, or dies intestate. Therefore, who the heir will be can be determined only at the time
of the death of a person, and not beforehand.
(b) Chance: In case a person hopes to succeed to the property of an intestate, what and how
much, if at all, the property available for inheritance can again be ascertained at the time
when the owner dies. So there are two chances namely;
(i) There may be possibility that no property is left at the time of death of a person, as it
may have been disposed of by him during his lifetime or might have been made the
subject of a testamentary disposition.
(ii) It may also be possible that the heir apparent may die before the very person whose
property he was hoping to succeed to.

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Thus, there is a hope, expectancy or a chance that he may succeed to the property, but no
certainty, no definite concrete reality that such an eventuality must happen.
(c) Transfer of Spes Successionis is void ab initio: The chance of an heir apparent to
succeed to the property of an intestate therefore cannot be transferred. This chance is also
referred to as spes successionis. If a person transfers this chance, the status of this transfer in
law is void ab initio. It does not convey any right in favour of the transferee, even if the
transferor who transfers a chance may, in fact, become the owner of the same property in
future.
In Official Assignee, Madras v Sampath Naidu1, a mortgage executed by an heir apparent
was held as void by the court even though he subsequently acquired the property as an heir.
2. The Chance of a Relation Obtaining a Legacy on the Death of a Kinsman
The chance of a relation obtaining the legacy on the death of a kinsman cannot be
transferred. A reversioner is a person who hopes to get the property on the death of another
relation. He does not have the vested interest in the property, but has only a contingent
interest in it. If he dies before the relation on whose death he was hoping to succeed to the
property, his heirs do not get the property and it reverts back to the original owner.
In Ananda Mohan Roy v Gaur Mohun Mullick 2, the issue before the Privy Council was,
whether a contract by the nearest reversioner to sell the property which was in the possession
of a widow as an heir, was valid and enforceable, and it was held that the prohibition under
section 6(a) would become futile, if agreements to transfer property, where acquisition of
title was based on possibilities, could be enforced. Hence, the Privy Council held that such
contract was void and unenforceable in court of law.
3. Future Possibilities of a Like Nature
Any other possibility of a like nature cannot be transferred. The term of a like nature
indicates that those possibilities that are similar to the one explained above cannot be
transferred i.e. those based on hope or expectancy. For instance, a person cannot transfer the
prize money that he may win in a lottery or the monetary consideration that he hopes to get
after the completion of a sale, as there is possibility that the sale may never materialize or he
never wins a lottery. Similarly, a fisher man going out to sea to catch fish cannot transfer the
possible catch that he may make, as it may be possible that he may not be able to catch any
fish. Thus the mortgage of income derivable in future from scavenging work is invalid.3

AIR 1933 Mad 795.

AIR 1923 PC 189.
3
Palapati v Nallagadda AIR 1938 Mad 881.
2

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POSITION IN ENGLAND
In English law,though expectancy is not regarded as property which can be assigned,there is no
express prohibition of an assignment of an expectancy for value and such assignment operates as a
contract to assign as soon as the expectancy becomes an interest.In England also the expectancy of
an heir apparent is not capable of being assigned. In the case of In re Parsons it was observed that:
It is indisputable law that no one can have any estate or interest at law or in equity , contingent or
other ,in the property of a living person to which he hopes to succeed as heir at law or next of kin
of such living person. During the lifetime of such person no one can have more than a spes
successions,an expectation or hope of succeeding to his property.
DIFFERENCE BETWEEN INDIAN LAW AND ENGLISH LAW
The Indian law differs from the English law in that under the former even an agreement to assign a
Spes Successionis is nullity thus,a contract to assign is as much within the mischief of section 6(a)
of the transfer of property act as an actual assignment.
MULTIPLE POSITIONS OF SPES SUCCESSIONIS
FAMILY SETTLEMENT
A family settlement is based on the assumption that there was an antecedent title of some kind in
the parties, and the agreement acknowledges and defines what the title was. It cannot be deemed to
be a transfer of property because by such arrangement no right, either vested or contingent,is
conveyed by one party to another. In the case of Kanti Chandra v. Ali Nobi ,a provision in the
family arrangement whereby certain Hindu brothers divided the family property belonging to them
among themselves and agreed that upon any of them dying without any issue, his share would pass
on to the surviving brothers,was merely an arrangement among the expectant heirs to divide a
property in a particular way but did not amount to transfer. As it was not a transfer, it would not be
hit by s.6(a) nor did it contravene the provisions of Hindu law.
VESTED INTEREST
A vested interest or vested remainder in immoveable property is a present interest in the property
which can be sold by private alienation and even be attached in execution of a decree . The interest
of remainder man is not a mere chance or possibility but a vested interest. Therefore, it is not
property of nature described in cl.(a) of s.6.
CONTINGENT INTEREST
Contingent interest is a property and is transferable. There is nothing in cl.(a) to prohibit the
transfer of a contingent interest. In the case of Ma Yait v. Official Assignee , the settlor by a deed
of settlement directed the trustees to hold certain properties up to the death of youngest child and
thereafter to be divided among the children then living. While the properties were in the hands of

the trustees, one of the sons of the settler transferred the interest under the settlement. It is held that
it is a transfer of a contingent interest and not hit by s.6(a) and was valid.
TRANSFER OF EXPECTANCY BY CONSENT DECREE OR COMPROMISE
The court does not allow the transfer of a mere right to succession to be effected even by means of
a consent decree. In the case of Abdul Kadir v. Taraganar ,the sons and grandsons of T undertook
to maintain T on Ts giving up his rights in the family property and T instituted a suit claiming a
liquidated sum on account of past and future maintenance, the assignment of the claim before the
decree was held to be void being assignment of a mere possibility and the assignee was not
allowed to execute the decree passed on compromise.
TRANSFER BY HINDU REVERSIONER
By the Hindu law,the right of a reversionary heir expectant on the death of a Hindu widow is a spes
successionis,and its transfer is a nullity and has no effect in law. In Amrit Narayan v. Goya
Singh ,the Privy Council said,
A Hindu reversioner has no right or interest in presenti in the property which the female owner
holds for her life. Until it vests in him on her death, should he survive her, he has nothing to assign
or relinquish or even to transmit to his heirs. His right becomes concrete only on her demise, until
then it is mere spes successionis.
ESTOPPEL OF A REVERSIONER
Although both the transfer and the agreement to transfer a reversionary interest are void,yet a
reversioner may be estopped from claiming the reversion by his conduct if he has consented to an
alienation by a widow or other limited heir. The position can be further explained by an
illustration: A Hindu widow executed a deed of gift of a part of her husbands property to D.F who
was then the nearest reversioner joined in the deed. On the widows death F claimed the property
pleading that the gift was invalid F having consented to the gift is estopped from disputing its
validity.
MOHOMEDAN LAW AND TRANSFER OF SPES SUCCESSIONIS
It has been held that in the case of Mahomedans the transfer of expectancy by a heir presumptive is
void ab initio and that no question of an estoppel can, therefore,arise by reason of the heir
renouncing her claim before the expectancy opens.
CHANCE OF A LEGACY
The chance of a relation or a friend receiving a legacy is a possibility even more remote than the
chance of succession of an heir, and is not transferable.
OTHER POSSIBILITIES OF A LIKE NATURE
The words of a like nature indicate that the possibility referred to herein must belong to the same
category as the chance of an heir-apparent or the chance of a relation obtaining legacy. In this
case,the usual illustration of a possibility is the case of a fishermans net. There is no certainty that

any fish will be caught,and the fisherman has no interest in the fish until they are caught. An
agreement for the sale of Otkarnam lands is a possibility and therefore void.
There is a conflict of decisions as to whether a right to receive future offerings at a temple can be
assigned. With reference to the right to receive offerings at the sacred shrine of Shri Vaishno Devi
ji(Jammu and Kashmir),it has been held that this right is heritable. The High Court
observed,although the right to receive the offerings from the pilgrims resorting to the shrine
depends upon the chance that future pilgrims and worshippers will give offerings, the right to
receive the offerings made is a valuable, definite and tangible right and is not merely a possibility
of the nature referred to in s 6(a) of the transfer of property act.

3. CASE STUDY
Dodda Subbareddi v. Sunturu Govindareddi
FACTS
The Defendant is the appellant. The defendant contended that the suit property was gifted to
Subbamma, one of the daughters of Venkata Reddy by her mother, Konamma, as per the oral
directions of her father, Venkata Reddy. There is a family arrangement under which Subbammas
absolute rights in the suit properties were recognized and that, in any even the plaintiff who
brought about the attested the Dakhal deed dated 14-10-1906 Ex. B-7 executed by Konamma in
favour of Subbamma was estopped from challenging the validity of the Dakhal deed. The
defendant claimed as the donee, under Exhibit B-8 from Bakki Reddy who claimed title from
Subbamma under a settlement deed executed by her on 3-4-1930 and makred as Exhibit B-9.
PROCEDURAL FACTS
The lower courts below concurrently found that the defendant did not establish the family
arrangement as well as the oral gift set up by them. On the question of estoppel, the District Munsif
held in paragraph 22 of his judgment said that it was impossible to hold that the plaintiff
was estopped from questioning Subbammas absolute title to the suit land. He also observed that
the defendants learned Pleader too has not gone to the length of contending that the bar of estopel
can be raised against the plaintiff based on his connection with the original of Ex. B-7 alone.
Though no specific ground of appeal was raised by the defendant in regard to estoppel in the
Memorandum of Appeal, filed before the Subordinate Judge of Tenail, the Subordinate Judge
raised the question of estoppel as the 4th point for consideration and disposed it of in paragraph in
a single sentence that he was not able to see how plaintiff was estopped on account of his being a
party attestor in the gift deed Exhibit B-7.
ISSUES
Whether the right of succession of Subbamma is only SpesSuccessionis.or only a mere
chance of succession, within the meaning of section 6 of the Transfer of Property Act?
JUDGEMENT ANALYSIS
It was established beyond doubt that during the lifetime of the widow, the reversioner has no
interest in praesenti in the suit property. Her right is only Spes Successionis or a mere chance of
succession, within the meaning of section 6 of the Transfer of Property Act. It is not a vested
interest, but only an interest expectant on the death of a limit heir. It cannot, therefore, be sold,
mortgaged or assigned, nor can it be relinquished.
A presumptive reversioner who gives his consent to a gift made by a widow without receiving any
consideration whatsoever is entitled to recover the property when he succeeds to the estate on the

death of the widow. The appellant in this case is only a donee from a done from Subbamma who
claims title under Ex B. 7, therefore there is no equitable considerations applicable to the facts of
the present case.

4.CONCLUSION
Thus accordingly, the general law lays down that all property is transferable under the section
unless there is some legal restriction to the contrary.Section 6 makes property of any kind alienable
subject to the exception set out which cannot be supposed to be selected by reason of the future
character of the chances. The truth is that an attempted conveyance of non existent property may,
when made for consideration, be valid as a contract and when the object comes into existence
equity fastens upon the property and the contract to assign becomes a complete assignment. It is
well settled that a transfer of property clearly contemplates that the transferor has an interest in the
property, which is sought to be conveyed.
Section 6 provides that, in general, every kind of property can be transferred from one person to
another. However, following are the exceptions to this general rule, which the researcher has
analysed.
First, in Chance of an Heir Apparent/ Spes Succession-The technical expression for the chance of
an heir apparent succeeding to an estate is called spes secession is. It means succeeding to a
property. This means an interest which has not arisen but which may arise in future. It is in
anticipation or hope of succeeding to an estate of a deceased person. Such a chance is not property
an as such cannot be transferred. If it is transferred, the transfer is wholly void.
Second, Right of Re-Entry- This is a right which a lesser has against the leasee for breach of an
express condition of lease which provides that on its breach the leaser may re-enter the land. The

transferor reserves this right to himself after having parted with the possession of the property. This
right is for his personal benefit and cannot, therefore, be transferred.
Third, Transfer of Easement- Easement means an interest in land owned by another that entitled his
holders to a specific limited use or enjoyment. An easement cannot be transferred without the
property which has the benefit of it.
Fourth, Interest Restricted in its Enjoyment-The cases which fall under this head would include the
right of Pujari in a temple to receive offerings, the right of a Widow under Hindu law to
residence and maintenance, etc. The rights given in these cases are purely of a personal nature and
cannot, therefore, be transferred. These rights are restricted to the person to whom they belong.
Fifth, Right to Future Maintenance- A right to future maintenance in whatsoever manner arising
cant be transferred. It is solely for the personal benefits of the person to whom it is granted.
However, the arrears of the past maintenance can be transferred.
Sixth, Right to Sue- Mere rights to sue cant be transferred. However, if it is incidental to transfer
of another right, it can be transferred.
Seventh, Public Offices and Salaries, Stipends, Pension, Etc.- Transfer of public offices and
salaries, stipends, pension etc., cannot be transferred on the grounds of public policy.
And finally, eighth, Occupancy Rights- Transfer of occupancy rights of a tenant is prohibited on
the ground of public policy. This restriction is imposed by law for the purpose of regulating
relation between landlords and tenants.

Bibliography

REFERENCES
BOOKS
MULLA,THE TRANSFER OF PROPERTY ACT,10TH EDITION,LEXIS NEXIS
BUTTERWORTHS
GOYLE,A COMMENTARY ON THE TRANSFER OF PROPERTY ACT,2ND
EDITION,EASTERN LAW HOUSE
B.B MITRA,THE TRANSFER OF PROPERTY ACT 1882,18TH EDITION,KAMAL LAW
HOUSE

1. Poonam Pradhan Saxena, Property Law, 1st Edition 2006, First Reprint,
2008.
2. Course Material of Property Law as compiled by Mr. Atul Sinha and Mr.
Shashank Shekhar.
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