Transfer of property: meaning and what may be transferred - Property Law

On this page

1. Scope of the Act
2. Section 5: meaning of transfer of property
3. Immovable property
4. Section 6: the general rule
5. The exceptions in section 6
6. Section 9: oral transfer
7. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The opening question of the paper. “Define transfer of property. What property cannot be transferred?” is set in almost every session, and was a 10-mark question in January 2026. The answer has two halves: section 5 (what a transfer is) and section 6 (the general rule of transferability and its exceptions). Learn the exceptions as a numbered list with one illustration each.

1. Scope of the Act

The Transfer of Property Act, 1882 deals with transfers by act of parties, not transfers by operation of law (succession, insolvency, court sale, forfeiture). Section 2(d) saves transfers by operation of law and by a decree or order of court. The Act also deals almost entirely with immovable property; movables are mostly left to the Sale of Goods Act, 1930. Chapter II (sections 5 to 53A) contains the general principles that apply to every kind of transfer — sale, mortgage, lease, exchange and gift — which the later chapters take up one by one.

2. Section 5: meaning of “transfer of property”

Section 5 defines a transfer of property as 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. To “transfer property” is to perform such an act. “Living person” includes a company, an association or a body of individuals, whether incorporated or not, though nothing in the section affects any law relating to transfer by or to companies.

The elements to write out:

An act of conveyance. Some interest in property must pass. A mere agreement to sell does not itself transfer anything (section 54 says so expressly for sale).
Between living persons (inter vivos). A will is not a transfer under the Act, because it operates only on the death of the testator. It is governed by the Indian Succession Act, 1925.
In present or in future. The conveyance must be made now, but the interest may take effect later, as when A transfers a house to B for life and then to C.
To himself and another. A may transfer property to himself and B jointly. A transfer by A to himself alone is not a transfer.

Partition and family settlements are generally treated as not being transfers in this sense: the parties already hold the property and each simply takes a defined share of what was his. A release or relinquishment in favour of a co-owner, on the other hand, does pass an interest.

3. Immovable property

Section 3 does not define immovable property positively. It says only that it does not include standing timber, growing crops or grass. The positive definition comes from section 3(26) of the General Clauses Act, 1897: immovable property includes land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. Section 3 of the TP Act explains “attached to the earth” as things rooted in the earth (trees and shrubs), things imbedded in the earth (walls and buildings) and things attached to what is so imbedded for its permanent beneficial enjoyment.

The test is the purpose of the attachment. A machine bolted to the floor only to steady it while it works remains movable; a building is immovable. A right to catch fish in a lake, a right of way and a right to collect rent are benefits arising out of land and so immovable. Standing timber is movable because it is meant to be cut and taken away.

4. Section 6: the general rule

Section 6 opens with the rule: property of any kind may be transferred, except as provided by the Act or any other law in force. Transferability is the rule and the burden is on the person who says a particular interest cannot be transferred. Clauses (a) to (i) then list what cannot be transferred.

5. The exceptions in section 6

(a) Spes successionis. 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. A son cannot sell the house he hopes to inherit from his living father: he owns nothing yet. Such a transfer is void, and the bar cannot be avoided by describing it as an agreement to transfer later.
(b) A mere right of re-entry for breach of a condition subsequent, except to the owner of the property affected. A lessor may assign the reversion with the right of re-entry; he cannot sell the bare right of re-entry to a stranger.
(c) An easement cannot be transferred apart from the dominant heritage. A right of way attached to Plot X goes with Plot X and cannot be sold separately.
(d) An interest restricted in its enjoyment to the owner personally, such as a right of residence granted to a widow, or the office and emoluments of a priest attached to a temple.
(dd) A right to future maintenance, in whatever manner arising, secured or determined. Arrears already due may be assigned; the future right may not, because it exists for the personal support of the holder.
(e) A mere right to sue. A claim for damages for breach of contract or for a tort is a bare right of litigation and cannot be sold. An actionable claim such as a debt is different and may be assigned under sections 130 to 137.
(f) A public office, and the salary of a public officer, before or after it has become payable.
(g) Stipends allowed to military, naval, air force and civil pensioners of the Government, and political pensions.
(h) Transfers contrary to the nature of the interest, for an unlawful object or consideration within section 23 of the Indian Contract Act, 1872, or to a person legally disqualified to be transferee.
(i) Untransferable tenancies: a tenant having an untransferable right of occupancy, the farmer of an estate in default of revenue, and the lessee of an estate under the management of a Court of Wards cannot assign their interest.

Other statutes add further restrictions: land reform and SC/ST land laws restricting alienation of granted land, and section 60 of the Code of Civil Procedure, 1908 (property exempt from attachment) are common examples to mention in one line.

Trap: spes successionis and estoppel. A transfer of an expectancy is void under section 6(a). But if the transferor represented that he was the owner and took the price, and later inherits, section 43 (feeding the grant by estoppel) may let the transferee take the property. In Jumma Masjid, Mercara v. Kodimaniandra Deviah, 1962 INSC 3, AIR 1962 SC 847, the Supreme Court held that section 6(a) and section 43 deal with different situations, and that section 43 applies where the transferee acted on the transferor's representation, even though the transferor had only a spes successionis when he purported to transfer.

6. Section 9: oral transfer

Section 9 provides that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. Writing is the exception. Where the Act or another law requires it, the requirement must be met:

Sale of tangible immovable property of the value of one hundred rupees or more, and of a reversion or other intangible thing: registered instrument (section 54).
Simple, English and most other mortgages securing one hundred rupees or more: registered instrument signed by the mortgagor and attested by two witnesses (section 59). A mortgage by deposit of title deeds needs no writing.
Lease from year to year, for more than a year, or reserving a yearly rent: registered instrument (section 107).
Exchange: as for sale (section 118).
Gift of immovable property: registered instrument signed by the donor and attested by two witnesses (section 123), whatever the value.
Actionable claims: instrument in writing (section 130).

What may be done orally: sale of tangible immovable property worth less than one hundred rupees (by delivery of the property), a lease for less than a year, a gift of movables by delivery, a partition, a family settlement, a surrender of a lease by conduct, and a Muslim hiba (governed by personal law, preserved by section 129).

7. Problem

X's father is alive. X sells to Y, for Rs. 5 lakh paid in cash, the house which X expects to inherit. The father dies. Y demands the house. Advise.

Issue. Whether a transfer of an expectancy passes any title, and whether Y can rely on section 43.

Law. Section 6(a) makes the chance of an heir apparent succeeding to an estate untransferable. Section 43 allows a transferee for consideration, to whom the transferor fraudulently or erroneously represented that he was authorised to transfer, to take any interest the transferor later acquires, at the transferee's option (Jumma Masjid, Mercara).

Application. The sale was void when made, because X had only a spes successionis. If Y knew that X's father was alive and that X was only an expected heir, there was no misrepresentation and section 43 does not help him. If X represented himself as owner and Y paid believing it, section 43 applies and, on X's inheriting, the transfer operates on the house at Y's option.

Conclusion. Y gets the house only if he was misled. Otherwise he can only recover the price paid, on the ground that X received it under a void transaction.

How this is examined

As a 10-mark question: “Define transfer of property and state what property cannot be transferred” (January 2026). Write section 5 with its elements, the meaning of immovable property, the rule in section 6 and then clauses (a) to (i) with an example each, ending with the section 43 point. As a short note: “Oral transfer” (January 2026) — section 9 and the list of transfers that need a registered instrument, or “Spes successionis”.