'Transfer of pro fined. CHAPTER II. OF TRANSFERS OF PROPERTY BY ACT OF PARTIES. (A.)—TRANSFER OF PROPERTY, WHETHER MOVEABLE OR IMMOVEABLE. 5. In the following sections 'transfer of property' means perty' de- an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons, and to transfer property' is to perform such act. What may be transferred. 6. Property of any kind1 may be transferred, except as otherwise provided by this Act or by any other law for the time being in force 3: (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 *. (2) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby 5. (c) An easement cannot be transferred apart from the dominant heritage ". (d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him". 1 e. g. the right of worshipping a goddess and receiving a share of the offerings may be transferred to a competent person within the line of succession, 6 Bom. 298. This section seems to allow Hindú and Muhammadan religious and charitable endowments to be transferred, the 'other law' excepted in the first clause being only a law ejusdem generis with the present Act, i. e. a legislative enactment. That the corpus of devasthan, sevasthan and waqf is not alienable, though the annual revenues of such endowments may be occasionally pledged for purposes essential to the institution endowed, see L. R. 2 I. A. 145; 5 Bom. 396, and cases there cited; and this rule is saved by the last clause of sec. 2, supra, p. 747 25 All. 121, 137, per Mahmud J. $ See, for instance, the Garo Hills Regulation, 1882, sec. 4: the Ajmer Land and Revenue Regulation, 1877, sec. 36. 4 Carleton v. Leighton, 3 Mer. 667: Act X of 1877, sec. 266, cl. (*). 5 Smith v. Packhurst, 3 Atk. 139. See infra, the Easements Act, V of 1882, sec. 4. 7 e.g. an hereditary priestly office (but it has been held that such an (e) A mere right to sue for compensation for a fraud or for harm illegally caused cannot be transferred1. (f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable 2. (g) Stipends allowed to military and civil pensioners of Government and political pensions cannot be transferred. (1) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby 3, or (2) for an illegal purpose, or (3) to a person legally disqualified to be transferee 4. (2) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards to assign his interest as such tenant, farmer or lessee 5. 6 7. Every person competent to contract and entitled to Persons transferable property, or authorised to dispose of transferable competent property not his own, is competent to transfer such property office may be sold to the person next in succession to the vendor, 6 Bom. H. C., A. C. J. 250): a karaima right, 3 Mad. H. C. 380: the right of a joint Hindú family to worship an idol, 3 Suth. Civ. R. 152: the interest of one of two widows of the same husband in one undivided estate, 2 Mad. 194. The inalienability of a ráj depends on family custom, which must be proved, L. R. 8 I. A. 248, following 5 Moo. I. A. 82. 1 3 Bom. 406: 5 All. 207. 'The right to complain of a fraud is not a marketable commodity,' De Hoghton V. Money, L. R., 2 Ch. App. 169, per Turner L.J. 23 Moo. I. A. 435: 11 & 12 Vic. C. 21, 8. 27. 3 4 Mad. 391 (office and emoluments of a paricharaka). As to the general inalienability of property devoted to religious purposes, see supra, p. 748, note I. The alienation of hereditary religious trusts and offices is generally illegal, though in some special circumstances it may be valid, 6 Mad. 78, 79. As to attempted transfers of the rights of sebaits to perform the worship of idols, A decree enforcing a right of pre- 5 Clause (i) was added by Act III of 1885. Of course the rights of a Hindú unborn son to ancestral property (8 Mad. 89) are not affected by sec. 6 or sec. 8. See the saving in sec. 2, last clause. See the Contract Act, sec. II, supra, p. 552. 7 When the British Government to reward the past services of A gave four villages to him and his heirs for ever 'as jághír,' it was held that the words 'as jághír' did not control the right of alienation inherent in the operative terms of the grant, 9 Bom. 561. to transfer. either wholly or in part and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force 1. Operation 8. Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest 2 which the transferor is then capable of passing in the property 3, and in the legal incidents thereof. of transfer. Oral transfer. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth 5; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect. 9. A transfer of property may be made without writing in every case in which a writing is not expressly required by law 7. Condition 10. Where property is transferred subject to a condition or restraining alienation. limitation absolutely restraining the transferee or any person 727, supra. As to the effect of the words 'belonging' and 'therewith held or used,' see 7 Cal. 665. See sec. 3, supra, p. 747. As to trees, see 5 All. 616: 2 N. W. P. 252: 24 W. R. 330. As to buildings, 2 Suth. Civ. R. 125, col. 2: 14 Suth. Civ. R. 379. See the definition, sec. 3 supra. See Flory v. Denny, 7 Exch. 581. For instances in which a writing is expressly required, see infra, sec. 59, and supra, pp. 496, 497 claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void1, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him 2: provided that property may be transferred to or for the benefit of a woman (not being a Hindú, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein 3. to interest 11. Where, on a transfer of property, an interest therein is Restriction created absolutely in favour of any person, but the terms of repugnant the transfer direct that such interest shall be applied or en- created. joyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction 1. Nothing in this section shall be deemed to affect the right to restrain, for the beneficial enjoyment of one piece of immoveable property, the enjoyment of another piece of such property, or to compel the enjoyment thereof in a particular manner. 12. Where property is transferred subject to a condition or Condition limitation making any interest therein, reserved or given to terest demaking inor for the benefit of any person, to cease on his becoming terminable insolvent or endeavouring to transfer or dispose of the same, vency or such condition or limitation is void 5. Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him o. on insol attempted alienation. for benefit 13. Where, on a transfer of property, an interest therein is Transfer created for the benefit of a person not in existence at the date of unborn of the transfer, subject to a prior interest created by the same person. 1 4 All. 518: 7 All. 522: see I All. 126. The rule agrees with Hindú law, 4 Mad. 200, and with Muhammadan law, 6 Mad. H. C. 356. As to the effect of such a condition in a permanent lease, 7 Bom. 260, 265. See too 3 Chan. Div. 148, 285. As to gifts to the separate use of a Pársí woman married or about to be married, 5 Bom. 268. Sec. 10 does not give a restraint on anticipation a greater effect than it had before the passing of the Act, 12 Cal. 522, and 4 Compare Act X of 1865, sec. 125, 5 Act X of 1865, sec. 107. So in England a clause in a lease is valid which gives the lessor landlord a right of re-entry in case the lessee becomes insolvent, 7 Bom. 261: 5 Dav. Conv. 177, note. Rule against perpetuity. Transfer to class some of whom come under sections transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property1. Illustration. A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and after the death of the survivor for the eldest son of the intended marriage for life, and after his death for A's second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A's remaining interest in the property. 14. No transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong 2. 15. If, on a transfer of property, an interest therein is created for the benefit of a class of persons with regard to some of whom such interest fails by reason of any of the rules contained in sections 13 and 14 such interest fails as 13 and 14. regards the whole class 3. Transfer to 16. Where an interest fails by reason of any of the rules take effect contained in sections 13, 14 and 15, any interest created on failure of prior transfer. in the same transaction and intended to take effect after or upon failure of such prior interest also fails. Transfer in 17. The restrictions in sections 14, 15 and 16 shall not perpetuity for benefit apply to property transferred for the benefit of the public of public. in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind. Direction mulation. 18. Where the terms of a transfer of property direct that for accu- the income arising from the property shall be accumulated, such direction shall be void, and the property shall be disposed of as if no accumulation had been directed 5. |