officer, whether before or after it, has become payable;

Chance of an heir apparent

In this clause, possibilities referred are bare or naked and not coupled with an interest, such as contingent remainders or future interest — also known as right of spes successionis which cannot be the subject to transfer.

When a person is the owner of property, the property is in existence and it is in his possession. This he may transfer. But if property is neither in existence nor is the person the owner of the property, then it cannot be transferred.

For example, if a person is intending to buy certain property but, he has no interest in that property, he cannot transfer it unless the property comes to his hands, that is, unless he becomes the owner of the property after buying it. But if a person obtains certain consideration and agrees to sell the property of which he is not the owner, then on becoming the actual owner of the property he has to transfer the property as there was a contract between him and the person who has agreed to buy the property. This transfer operates on a contract to be performed when the property comes into the hands of the person who has agreed to transfer.

But where a person wants to make a gift of the property which is to come in his hands in future, he cannot transfer it because a gift is voluntary transfer without a consideration. Thus a gift of future property is void.

Similarly, the chance of a heir apparent succeeding to the estate of a deceased person cannot be transferred.

Suppose A is the owner of the property and B is his son. B is the heir of A. During the lifetime of his father, B has only a hope or expectancy that he will inherit the property of his father. This type of property, which B hopes to get after the death of the father, cannot be transferred during the lifetime of A.

Illustrations: a) Suppose A, a Hindu who has separate property, dies leaving a widow W and a brother L, L's succession to the property is dependent upon two factors — i) his surviving the widow, W; and ii) W leaving the property intact. L has only a bare chance of succession to the property left by A. This is spes successionis, and therefore, cannot be transferred (Amrit Narayana vs Gyan Singh (1918 45 Calcutta 690).

b) A transfers to B for valuable consideration his reversionary interest in a property. When A succeeds to the property, B sues him for possession of the same. B will not succeed as the reversionary interest is a spe successionis and non-transferable. So the transfer is void and B's suit for possession fails.

Right of re-entry

The right which the lessor has against the lessee for breach of an express condition which provides that on its breach the lessor may re-enter is called the right of re-entry. For instance, if A leases his property to B and adds a condition that if B sub-lets the leased land, A will have the right to re-enter, that is, the lease will terminate if the lessee breaks the condition by subletting to a third person.

Thus, right of re-entry being a right for the personal benefit of any party cannot exist for the benefit of a person who has no personal interest in the land.

For example, A grants his land by way of lease to B, a limited liability company on condition that the land should revert to A from B if the company goes into liquidation.

This is a mere right in favour of A and this right A cannot transfer to anyone as this is a personal right which can be exercised by A only.

But if A transfers the whole of his interest in the land, including the right of re-entry to C, there the right to re-entry is a legal incident of property and can be validly transferred along with the property.

Transfer of easement

An easement is a right enjoyed by the owner of land over the land of another: such as, right of way, right of light, right of support, right to a flow of air or water.

Section 4 of the Easements Act defines an easement as a right which the owner or occupier of certain land possesses as such for the beneficial enjoyment of the land, to do and continue to do something or to prevent and to continue to prevent something being done in or upon or in respect of certain other and not his own land.

An easement includes a right to enjoy a profit out of the land of another. An easement exists for the accommodation and better enjoyment of the land to which it is annexed.

The land owned by the possessor of the land is known as dominant tenement and the land over which the right is enjoyed is known as the servient tenement.

As an easement confers no proprietary right on its owner, it cannot be transferred apart from the land itself. For-example, the right of certain villagers to bath in another's tank cannot be transferred.

Similarly if A, the owner of a house X, has a right of way over an adjoining plot of land belonging to B, he cannot transfer this right of way to C. But if he transfers the house itself to C, the easement is also transferred to C.

It may be noted, however, that the prohibition is only with regard to transfer of an existing easement.

The law does not prohibit the grant or creation of new easement (Bhagwan Sahai vs Narsing (1909 31 ALL. 612); Satyanarayana vs Lakshamaya (5 H.L.J. 56) or the extension of an easement by release in favour of the owner of servient tenement.

Restricted, personal interest

An interest restricted in enjoyment to the owner personally is by its very nature not transferable unless the restriction is void under Section 10.

Examples of such restricted interest or property are:

i) the right of pre-emption given under the Mohammedan Law;

ii) the office of a shebait of a templeor mohunt of a mutt or mutuwalli of a wakf;

iii) emoluments attached to a priestly office; and

iv) service tenures.

Right to future maintenance

This again is a personal right in the property which the law says that it cannot be transferred. The right of a Hindu widow to maintenance is a personal right which cannot be transferred.

Under the law the arrears of past maintenance can be transferred, but not the right to future maintenance.

(Edited extracts from General and Commercial Laws — Intermediate Course Study Material, Paper 1. Courtesy:Tthe Institute of Company Secretaries of India. www.icsiindia.org)

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