INTRODUCTION
Transfer of property means some act by which a living person conveys property in the present or future, to one or more other living persons or himself.[1] Section 6[2] of the Transfer of Property Act 1882 explains the kind of property which can be transferred. According to this, any kind of property can be transferred but along with that it also gives some exceptions for the property that is not allowed to be transferred under this Act. Ten kinds of properties are given from Clauses (a) to (i) which cannot be transferred. Clause (a) mentions spes-succession.
MEANING OF SPES-SUCCESSION
Spes-succession means an expectation of succession. When someone expects that they will get a property through inheritance or by will then such chance of getting property is known as Spes-succession. It refers to some future property. So it is just a possibility that one may get the property in the future. Section 6(a)[3] defines Spes-succession. In this clause it includes the following clauses:
- Chance of an heir-apparent succeeding to an estate,
- Chance of a relation obtaining a legacy on the death of a kinsman
- Any other mere possibility of a like nature
Chance of an heir-apparent: The heir apparent cannot be considered the legal heir, it is only apparently an heir. If the owner of a property dies without making a will and if the future apparent survives the porosities then he is called heir-apparent. E.g. If the father dies then the son inherits the property of the father in case the father dies without making any will. If the father is still alive, then he cannot inherit the property of his father. Because it is unknown who will die first. It is an uncertain future event. So the son is simply an heir apparent of his father’s property. He only has the possibility of inheriting the property. Change of expectancy cannot be treated as a right that is there in the present time. The chance of an heir-apparent cannot be transferred.
For e.g. Abdul has a wife named Masuma. And both have a daughter Suhana. During the life of Abdul, Suhana released her share in her father’s property for consideration of Rs. 50,000. The money was paid to her by her father. When Abdul died Suhana claimed her 1/3 share under the Muslim law of inheritance. Then Masuma resisted her daughter’s claim since Suhana had already transferred her share by a release deed for Rs. 1000 as a consideration, so she is not entitled to 1/3 share. The court held that the release cannot be used as a defense. The release deed was held to be void. Suhana was entitled to inherit her share despite the execution of her release deed.[4]
In the case of Stockley v. Parsons, it was said that during the lifetime of a person some other person is not entitled to any share in the property of that living person. Because such another person only has the chance of getting the property after the owner.[5]
Chance of getting a property under the will: Change of receiving property under a will cannot be transferred under T. P. Act. Will operates after the death of the person who makes the will. It does not operate on the date of writing the will. Therefore the transfer of property is in the future. In case any person has made two or more wills then only the last ‘will’ will be considered. Before a will operates, the legatee only has a hope of getting the properties in the future provided it is the last will the testator made.
If a friend receives property under a will then it is just a possibility. Therefore such a possibility is not transferable.
Any other possibility of a like nature: any other chance of similar nature is excluded by this clause and makes it non-transferable. When some other possible interests depend on some uncertain event that may occur in the future, then in such case such interest is not made transferable. E.g. the fisherman may or may not get any fish at all in his next catch. The fisherman doesn’t have any interest until the fish are caught.[6] Customary right to scavenge has been held non-transferable right.[7]
RIGHTS OF REVERSIONERS UNDER OLD HINDU LAW
Under Old Hindu law, reversionary right means the chance of getting a property. So it is also a kind of Spes-succession. Reversionary was a person that inherits the properties of a widow that was with the widow when she was alive. Till the time the widow is alive, the Reversionary had no right of inheritance but it reverted to them only after the death of the widow provided they survived her. Therefore being a Spes-succession the agreement to transfer the properties by a reversionary was invalid because it is a mere chance of getting the property.
SPES-SUCCESSION UNDER MUSLIM LAW
Under Muslim law also Spes-succession is not transferable. In Abdul Gafoor v. Abdul Razack,[8] the Madras High Court said that in the case of Muslims the transfer of chance if getting a property by an heir-apparent is void for beginning itself. So no question of estoppel can arise because of the heir renouncing her claim before the expectancy opens.
IN THE CASE OF PUNJAB
Spes-succession is transferable in Punjab. In Punjab Transfer of Property Act is not applicable. Thus, Spes-succession is transferable and has been regarded as valid in Punjab.[9] The courts in Punjab follow the English equitable principles. It is also given that although the T. P. Act, 1882 does not prevail in Punjab but on grounds of equity, justice and good conscience Section 6(a) of the Act may be applied.
SPES-SUCCESSION IN ENGLISH LAW
Spes-succession is not transferable in English law. But there is a condition that if there is some consideration, the transfer is not valid under English law. When there is a transfer for some value then such transfer is protected under the English equity. For E.g. an heir-apparent transfer the property to another person and that transfer have some consideration. In such a case when the heir-apparent becomes the real owner and will have ownership rights in the property, then he has to transfer the title of the property to the transferee.[10] Although when the transfer is without any consideration, such as when there is a gift of expectancy, then the transfer would be void.
ANALYSIS
Spes-succession is an exception that cannot be transferred under Section 6 of the T.P. Act. The mere chance of getting a property cannot be said to be transferable until the property is in hand or the ownership is with the person who would transfer the property. Transfer of property at some future date is possible. But the ownership or title of the property must be with the person at the present date before conveying it.
CONCLUSION
All kinds of property are transferable unless there are any restrictions. Section 6 of the T. P. Act provides every kind of transfer of property alienable, except some. Section 6 covers eight exceptions where the property is non-transferable. Spes-succession is one of the important exceptions where the expectation of succession becomes void-ab-initio in the circumstances when an heir-apparent succeeds a property, expectation of the relatives that they will get the property under a will, and any other chances of a similar nature.
Author(s) Name: Hriday Jyoti Barman (University Law College, Gauhati University)
References:
[1] Dr. R. K. SINHA, The Transfer of Property Act (20th Edition, Central Law Agency 2019) 50
[2] Transfer of Property Act, 1882, s 6
[3] Transfer of Property Act, 1882, s 6(a)
[4]Samsuddin v Abdul Hussain (1906) 31 Bom. 165
[5]Sarthak Udaipuria, ‘Doctrine of Spes-succession- Transfer of property Act 1882’ (Law Column, 1 July 2021 <https://www.lawcolumn.in/doctrine-of-spes-succession-transfer-of-property-act-1882/#%E2%97%8F_Clausea_spes_succession> accessed 17 July 2022
[6]Mulla, Transfer of Property Act (8th Edition, LexisNexis 1934) 59
[7]Radya v Kaviraya AIR 1951, MB 120
[8] Abdul Gafoor v Abdul Razack AIR 1959, Mad. 131
[9] Dr. R. K. SINHA (n 1) at 66
[10]Ibid
