SPES Successionis As An Exception To Transferability
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 spessuccessionis i.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.
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.
2.Multiple Positions of Spes Successionis
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.
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 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 T’s 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 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 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 husband’s property to D.F who was then the nearest reversioner joined in the deed. On the widow’s 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 fisherman’s 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
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 Subbamma’s 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.
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 Subbamma’s absolute title to the suit land. He also observed that “the defendant’s 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.
Whether the right of succession of Subbamma is only “Spes Successionis” or only a mere chance of succession, within the meaning of section 6 of the Transfer of Property Act?
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.
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 analyzed.
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 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.
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.
• 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