property law ppt

1. Topic: Comparative Analysis of Section
6(a) and Section 43 of Transfer of
Property Act

2. Introduction
 The term property originates from the term “proprius” which means
“one’s own.” Blackstone defined property as ‘the sole and full
dominion which a man claims over the things of the world to the
exclusion of others...’ Hence, in a very basic understanding it can be
said that property is something that can be owned (capable of
holding rights) and is transferable. This analysis focuses on sections
6(a) and 43 of the Transfer of Property Act and aims at explaining
what cannot be transferred in respect to section 6(a) (specs
succession) and what may be done if such unauthorized transfer is
made.
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3. Section 6(a) of TPA
• “What may be transferred- Property of any kind may be transferred,
except as otherwise provided by this Act or by any other law for the
time being in force-
• 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;”
• This section elaborates on what may be transferred. As a general rule,
any property is transferrable except for the few mentioned under this
section.
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4. • Section 6(a) says that the possibility of an heir apparent succeeding to
a property cannot be transferred. This section basically talks about
specs succession.
• Specs succession is possibility or expectation of getting property in
future through inheritance or will. Transfer of specs succession is void
ab initio.
• It is non transferrable for the simple reason of it being a mere chance.
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5. Section 43 of TPA
• “Transfer by unauthorized person who subsequently acquires
interest in property transferred- Where a person [fraudulently or]
erroneously represents that he is authorized to transfer certain
immovable property and professes to transfer such property for
consideration, such transfer shall, at the option of the transferee,
operate on any interest which the transferor may acquire in such
property at any time during which the contract of transfer subsists.
• Nothing in this section shall impair the right of transferees in good
faith for consideration without notice of the existence of the said
option.”
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6.  This section talks about the right of transferee when the transferor fraudulently
transfers the property and later on acquires interest in the same property.
• This section clearly lays down that-
• The transferor at the time of the transfer is unauthorized to transfer which means
that he has no title or interest in the property.
• The transferee has to prove that the transfer was made to them fraudulently or
erroneously and that the transferor misled them to believe that he had the right
to transfer the said property.
• The transfer has to be for some consideration and not a gratuitous transfer.
• The transferor subsequently acquires interest in the same property.
• The transferee has the right to compel the transferor to pass the title onto them
upon the subsequent acquisition of the property. It is important for the
transferee to avail this option during the subsistence of the contract. Where a
transferee has rescinded the contract and has asked for damages from the
transferor in that case the contract has been rescinded and transferee cannot
take the benefit of this provision.
• There should not be another transferee in the meanwhile who has taken title of
the said property from the transferor (upon his subsequent acquisition) for a
consideration and without notice of the option vested in the original transferee.
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7. Comparison between the two provisions
• Section 6(a) is a rule of substantive law while section 43 incorporates rule
of estoppel.
• Under 6(a) the fact of specs succession is within the knowledge of both
transferor and transferee. There is no misrepresentation on the part of
transferor. While under section 43 there is a fraudulent or erroneous
misrepresentation and the transferee acts on such misrepresentation.
• Section 43 only applies to those transfers which are for a consideration and
not those that are gratuitous in nature. Section 6(a) applies to all kinds of
transfers. Thus gift of a property that one hopes to inherit is also void.
• Specs succession applies to both moveable and immoveable property while
the rule of estoppel only applies to immoveable property.
• Transfers under section 6(a) are void ab initio while those under section 43
are voidable at the option of the transferee i.e. they can either enforce the
contract upon subsequent acquisition of the property by the transferor or
they can rescind the contract and ask for damages from the transferor.
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