Introduction:
Property of some sort can be passed, except as stated in various clauses of s.6 of the act. Therefore, the general rule is that, as set out in s.6, a property of any kind can be transferred and the person pleading for non-transferability must show the presence of any need or tradition restricting the right of transfer. Clause (a) of section 6 of the Property Act Transfer addresses the probability of an apparent successor succeeding in the Property. An individual with an interest which is spes successionis that is mere hope of potential achievement to the property is not a right and cannot be transferred. On the basis of the possibility of succession, such an individual does not bring a suit. Likewise, a grant of Spes successionis is null and does not confer titles on the donee.[1]
Where the transfer is not of an apparent heir’s right of expectation but of the property itself, it cannot be assumed to be a transfer of mere chance of achievement. Therefore, where a person has not been heard of for a long time and is presumed deceased, an agreement to sell the property entered into by his brother who is in the custody of the contested property is not a sell of the right of hope, but of the property itself and is not influenced by clause (a) of section. 6.
Spes Successionis
Spes successionis is a maxim in Latin. It says the probability that a person’s property will survive after his death. It states about a person’s sheer probability of succeeding after his death in a house. By way of will or inheritance, the apparent heir or some relation intends to succeed in a house. It then assigns no interest in the property and cannot be subject to transfer according to the transfer of the property act. That is not taken as a transfer and in the future, the property is not in the possession of the transferee but a simple hope of obtaining right over the property. If what he/she assumed succeeds in that way, the heir apparent will get a certain property in the future. The transferability theory is based on the “Alienation Rei Prefertur Juri Accrescendi” maxim, which implies that the statute encourages the creation of alienation. Thus, the statute stops any effort by someone to limit the owner from alienating his interest in the land. Around the same time, if a transferor does not have a genuine interest in the property but convey for his own benefit and amusement, which is contrary to public policy, it should not be authorised to sale the interest in the land. Except as referred to in Section 6, aside from the spes successionis, all other assets are transferable by the act. Apart from the provision of Section 6, any person claiming non-transferability must prove need and custom.
Transfer of Property Act 1882
This act regulates the transition by the act of the parties and amends the same existing laws and does not add any new law theory. In the beginning, the act itself states that it controls the acts of the parties and has little to do with the transition which takes place through the rule of law. Therefore, it does not control any transfer by court sale, seizure, insolvency purchase, government grants and intestate succession transition. The primary purpose of the Act is to bring in peace, and to dissolve, the laws relating to the transfer of and movement of land and living persons.
Essentials of Valid Transfer
If the property is movable or immovable, complying with the provisions of the Act referred to below is a must for Transition –
- It must be transferable to the property (Section 6)
- The transferor must have Transfer expertise (Section 7).
- The person to be moved must be qualified.
- The transactions must be rendered in compliance with the statute.
Section 6 Spes Successionis – The items alluded to in this Sub-section as non-transferable are the probability of a successor to an estate, the probability of a partnership receiving an inheritance (a gift by will) on a parent’s death, and some other prospect of a related sort.
In the case of Samir Kumar Haldar vs. Nirmal Chandra Banerjee,[2] where the transition is not of an apparent heir’s right of expectancy but of the property itself, it cannot be described as a simple chance to succeed. Any transfer of his property made by his brother who is in leisure and custody of the property itself cannot be deemed as invalid under transfer by spes sucessionis if a person is not heard for a long time and is presumed to be dead.
Spes Successionis as an Exception to Transferability
The transferability rule is based on the legal principle “alienation rei prefertur juri accrescendi,” which means that the law favours alienation over property accumulation, and forbids any intervention with an individual’s right to alienation or transfer where no legislation forbids such transition. The right to pass comes from a legal title; a person holding possession of such property may alienate it without obstacles. If a guy owns a property then it’s free for him to move it according to his will to another guy. Any Alienation by any coercion or by intimidation under the Indian Contract Act, 1872 shall be void. The right to property itself requires the right to transfer the property to another. The duty of evidence is on the individual claiming that it is not transferable to another form of land. Spes successionis is an exception to this general rule since the statute forbids its transition. Section 6(a) of the Transfer of Property Act, 1882, forbids the simple hope of achievement from being alienated or relocated. Therefore it can be claimed that the transferability of the property is a general law, an exception being its non-transferability.
Provisions of Spes Successionis under section 6 of transfer of property Act, 1882:
Except as otherwise provided for in the Transfer of Property Act, any form of property can be transferred, so the transferability of property is a general law and Section 6 enforces this law. The provisions of section 6 alone include an exception to this general law. Section 6(a) of the Transfer of Property Act limits the transfer to an estate of a mere hope or chance of a successor-apparent, the probability of a partnership receiving a legacy on the death of a kinsman, or any other likelihood of a similar sort.
Section 6(a) of the property made spes successionis is an exception to the transferability clause, as provided for in section 6 spes successionis:
- Chance of a successor-apparent to an estate.
- Chances of a family receiving an inheritance through the death of a spouse or,
- Any other mere chance of a design identical.
Chance of a Successor-Appearing Claimant to an Estate
An heir-apparent is entirely distinct from a legitimate successor. A legitimate heir is one who, when a person dies intestate, is legally entitled to inherit an estate; but an heir-apparent is an entity who has an intention of succession and not a real right. So literally an heir-apparent is a person intended to become the legal heir in the future and to inherit the proprietary property of the propitious. A successor can legally pass his shares across the deceased’s property but this cannot be achieved by an apparent successor because he has no claim over the property, all he has is mere hope. An heir-apparent succession right is contingent on future unknown circumstances such as (a) He must survive the propitious and (b) the propitious must die intestate i.e. without having any will and, thus, an heir-apparent can only be entitled to the property of the deceased after the aforementioned conditions have been met.
Chance of a Relation Having a Legacy on a Kinsman’s Death:
The chance of an inheritance is a clear probability of receiving a certain estate in a will in the future. After the death of the tester, it is the opportunity or hope of some friend or partnership to get the property under a will. The probability of an heir-apparent and the probability of inheritance is somewhat comparable and both have no claim to the property and are just assumptions. The probability of a relation or a friend obtaining a legacy is a likelihood that is far more distant and non-transferable than the likelihood of the succession of an heir. The person has to meet two conditions to receive the right over the property of the testator (a) he has to survive the testator and (b) he has to be the person listed in the last will. Only the legatee under the last will is entitled to receive the property where two or more will have been executed in favour of separate individuals. The legatee has only a mere chance of having those properties under will before a will exists, i.e. before the death of the testator, which is non-transferable.
Any Other Normal Possibility:
The central objective of section 6(a) is to forbid the sale of assets which are merely a potential future unknown interest. Thus, clause (a) of section 6 prohibits not only the likelihood of an heir-apparent or a legatee but also any other likelihood of possessing potential property which is not currently a transferor’s protected right.
The terms of a ‘like nature’ suggest that the prospect alluded to herein could belong to the same group as the probability of an apparent successor or the probability of a legacy partnership.
Conclusion
The alienation and transferability of land is a general rule but there are certain exceptions to the general rule that are specified in the terms of section 6 of the Transfer of Property Act, 1882, and one is spes successionis among those completely mentioned exceptions. The clause of section 6(a) of the above Act forbids and prevents the transfer of the likelihood of obtaining land rights in the future after the owner’s death. Such a clause forbids the transfer of the rights of the heir-apparent to be purchased in the future and does not preclude the transfer of the property itself to be purchased in the future, because the transfer of the property itself is null and void since no one transfers the property for which they have no rights. Accordingly, the common law stipulates that all property should be passed under the section unless there is any legal limit to the same.
Section 6 renders properties of any sort alienable, according to the exemption laid down, and cannot be chosen on the grounds of the potential existence of the incentive. The fact is that when considered for the account, an attempted conveyance of non-existent property can be true as a contract and as the item comes into being, equity fastens on the property and the contract to grant becomes a full assignment. It is well known that a sale of assets specifically contemplates that the transferor has a stake in the asset to be exchanged.
Spes succession is the technical term for the probability of an evident successor succeeding to an estate. To a property, it means succeeding. That implies a concern that did not exist but that could emerge in the future. It is in expectation or hope of a dead person’s estate succeeding. Such an incentive is not a land and cannot be passed as such. The transfer is completely invalid if it is moved.
References:
- http://www.legalservicesindia.com/article/2163/SPES-Successionis-As-An-Exception-To-Transferability.html.
- http://www.legalblog.in/2011/08/applicability-of-spes-successionis.html.
- www.legalservicesindia.com
- www.manupatra.com
- www.researchgate.com
- www.lawjournalindia.com
[1] Collins Dictionary of Law © W.J. Stewart, 2006.
[2] Kali Prasad v Ram Golavi 167 IC 839, AIR 1937 Pat 280.
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