Spes Successionis 1c6yz

SPES SUCCESSIONIS BY- DIKSHA IIIrd SEMESTER CHANAKYA NATIONAL LAW UNIVERSITY

INTRODUCTION The general principle of sec. 6 of transfer of property act, 1882 is that property and interest in property are transferable. This rule of transferability is based on the maxim “alienation rei prefertur juri accrescendi”, which means law favours alienation to accumulation. Therefore, any attempt to interfere with the power of the owner to lienate his interest in the property is frowned upon by the law . at the same time, where either the transferor does not possess a valid title to the property and is solely by its very nature created for its 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 case by him , are prohibited.1 Except as specified in various clauses of sec. 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 sec. 6 and the person pleading non-transferability must prove the existence of any usage or custom which restricts the right of transfer. 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 1 Dr. Poonam Pradhan Saxena, property law, 2nd edition(2013), pg.67 1

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.2 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 (Section6(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).3 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 clause (a) of sec.6.

2 http://lawfarm.in/question/answer-for-what-is-spes-successionis--what-are-the-rights-of-a-spessuccessionis-3 3 https://books.google.co.in/books? id=S5T6Eh8N8vsC&pg=PA142&lpg=PA142&dq=conflict+between+sec+6+and+43+of+tp+act&source= bl&ots=ne7LEY0o1v&sig=va1JAGHg7SXEPchp4c00HxOrxM&hl=en&sa=X&ved=0ahUKEwiktbPvvP jPAhXLMY8KHctMBBIQ6AEIOjAF#v=onepage&q=conflict%20between%20sec%206%20and %2043%20of%20tp%20act&f=false 2

Spes successionis within the meaning of Section 6 of the Act: The things referred to in this Subsection as non-transferable are the chance of an heir succeeding to an estate, the chance of a relation obtaining a legacy (a gift by will) on the death of a kinsman, and any other mere possibility of a like nature.4

TRANSFER OF SPES SUCCESSIONIS UNDER SECTION 6(A) Scope and objectivea) 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. b) Clause (a) of Section 6 (spes successionis): Section 6(a) excluded the 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’. 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.5 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:6 4 http://www.lawteacher.net/free-law-essays/land-law/property-of-any-kind-law-essays.php 5 http://mayank-lawnotes.blogspot.in/2007/01/transfer-of-property.html 6 Id. 3

“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.” For instance, A hopes to succeed to his father’s 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. Sec.6(a) talks about spes successionis. It means expectation of succession. Expectation of succession is expecting or having a chance of getting a property through succession. Spes successionis is therefore, not any present property. It is merely a possibility of getting certain property in future. Spes successionis under this clause includesi. ii. iii.

Chance of an heir-apparent succeeding to an estate. Chance of a relation obtaining a legacy on the death of a kinsman or, Any other mere possibility of a like nature.

A. Chance of an heir – apparenta. Heir- apparentThe 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. A mere possibility of an heir succeeding to an estate is excluded from the category of transferable property. The prohibition enacted in this clause is based on public policy, namely, that if these transfers were allowed speculators would purchase the chance of succession from possible heirs and there would be increase in speculative litigations.7 Sec. 6(a), however, prohibits the transfer of a bare chance of a person to get a property. After the death of the husband, for example, if two widows inherit their husband's properties together, the transfer of bare chance of the surviving widow 7 http://www.legalindia.com/spes-successionis-as-an-exception-to-transferability/ 4

taking the entire estate as the next heir of her husband on the death of the cowidow of her present interest in the properties inherited by her together with the incidental right of survivorship. Such widows could validly partition the properties and allot separate partitions to each and, incidental to such an allotment, could agree to relinquish her right of survivorship in the portion allotted to the other. b. ChanceAn heir apparent has only a chance of inheriting the property subject to two possibilitiesi. He survives the propositus. ii. The propositus dies intestate i.e., without making any will.8 c. Transfer of Spes Successionis is void ab initioThe 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. B. Chance of legacy Clause(a) provides that the chance of a relation obtaining a legacy on the death of a kinsman is not transferable. Legacy means expectancy of getting certain property under a Will. A Will becomes operative only after the death of the testator i.e. the person who has made the Will . if the person has made two or more Wills , then , only the last Will made by him will be operative. Legatee under the last Will only will get the legacy. Expectancy to receive legacy is uncertain because the legatee may or may not survive the testation and the testator may have charged the name of the legatee in his last Will. Therefore, the chance of a legacy has been made non- transferable. 8 Supra note 1 at pg. 68 5

In Ananda Mohan Roy v Gaur Mohun Mullick2, 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. C. Future possibilities of a like natureThe expression “any other possibility of a like nature” indicates 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 a legacy. Any other possibility of like nature cannot be transferred. For instance, a person cannot transfer the prize money that he may win in a lottery.9 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.” 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 9 http://shortnotesonlaw.blogspot.in/2014/09/spes-successions-and-feeding-empty.html 6

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 successionis, 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.10 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 it’s 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 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.”11

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 husband’s property to D.F who was then the nearest reversioner ed in the deed. On the widow’s death F claimed the

10 Supra note 5. 11 http://indianlawcases.com/-Doctrine%20of%20spes%20successionis. 7

property pleading that the gift was invalid if 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. Spes Successionis in PunjabThe transfer of property is not applicable in Punjab, therefore, spes succesionis is not any non – transferable property. The transfer of spes successionis, i.e., transfer of expectancy or of reversionary rights has been held valid in Punjab.12 In the availability of the transfer of property act in Punjab, the court there follows English equitable principles. 13 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 fisherman’s net. There is no certainty that v any fish will be caught, and the fisherman has no interest in the fish until they are caught. Anagreement for the sale of Otkarnam lands is a possibility and therefore void.

DISTINCTION BETWEEN SECTION 6(A) AND SECTION 43 12 Govind v. chanan Singh, A.I.R. 1993 Lahore 378 13 Dr. R.K. Sinha, The Transfer of Property Act, 17th edition, central law agency, Allahabad, pg.65 8

Considering the scope of Section 43 on its , it clearly applies whenever a person transfers property to which he has no title, on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that, if the transferor, subsequently acquires the property, the transferee becomes entitled to it if the transfer has not in meantime been thrown up or cancelled and is persisting. There is an exception in favour of transferees of consideration in good faith and without notice of the right under the prior transfer. Section 43 embodies a rule of estoppel and enacts that a person who makes a representation, shall not be heard to allege the contrary as against a person who acts on the representation. It is immaterial whether the transferor who acts bona fide or fraudulent in making the representation. It is only material to find out whether, in fact, the transferee has been misled. It matters not whether the transferor acted fraudulently or innocently in making the representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer, and Section 43 would not then apply and the transfer will fail under Section 6(a). But where transferee does act on the representation, he will have the benefit of the equitable doctrine embodied in Section 43, however fraudulent the act of the transferor might have been.14 A plea of estoppel cannot be raised against a minor who had transferred property on representation that he was of age, and Section 43 does not apply to such transfers. But section 43 deals with transfers which fall for want of title in the transferor and not want of capacity i him at the time of transfer. Further, the doctrine fo estoppel does not apply to persons who have no contractual capacity where the claim is based on contract. The principle of the section is based partly on the English doctrine of estoppel by deed and partly on the equitable doctrine that a man who has promised more than, he can perform must make good his promise when he acquires the power of performance. Essentials.-14 https://indiankanoon.org/search/?formInput=spes%20successionis&pagenum=2 9

To attract the application of the section, three conditions are necessary : i.

a fraudulent or erroneous representation that the transferor had authority to transfer

ii. iii.

the property, the transfer is for consideration, the transferor subsequently acquires the interest which he had professed to transfer.

If a Hindu dies leaving behind two widows, they succeed as t tenants with a right of survivorship. They were entitled to obtain partition of the separate portions of property so that each may enjoy her equal share of the income accruing therefrom. Each can deal as she pleases with her own life interest but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the right of survivorship or a future reversioner. If they act together, they can burden the reversion with any debts owing to legal necessity but one of them acting without the authority of the other cannot prejudice the right of survivorship by alienating any part of the estate. The mere fact of partition between the two while it gives each a right to fruits of separate estate to her, it does not imply a right to prejudice the claim of survivorship to enjoy full fruits of the property during her lifetime.15 Representation. In order that Section 43 can apply, it is necessary that there should be misrepresentation, fraudulent or erroneous, about the right to transfer the property. The word “represents” in the section clearly shows that the person in whose favour the enquiry is allowed to operate must have acted on the representation. In other words, the transferee must have been misled into the impression that the transferor had power to transfer.

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 15 http://www.cssforum.com.pk/css-optional-subjects/group-vi/muslim-law-jurisprudence/63192applicability-spes-successionis-under-muslim-law.html 10

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 succession 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 can’t 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 can’t be transferred. However, if it is incidental to transfer of another right, it can be transferred. 11

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.

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