6(i): nontransferable Interest

•The general rule is that leaseholds are transferable but this clause makes an exceptions of this rule and declares certain interest inalienable.

•Thus under this clause, a tenant having an nontransferable right of occupancy can not alienate or assign his interest in the occupancy

6(k):Persons disqualified to be transferee

•A transfer can not be made in favor of a person who is disqualified to be a transferee.

•U/S 136 of Contract Act, a Judge, a Legal Practitioner or an Office of Court are disqualified from purchasing any actionable claim.

•A minor is not disqualified to be transferee, although a minor’s contract is void.

6(h):Opposed to Nature of Interest

•The clause forbids transfer

i)In so far as such transfer would be opposed to the interests affected thereby.

ii)for unlawful object or consideration

iii)to a person legally disqualified to be a transferee.

 

•Air, Water, Light are not transferable because untransferability is inherent in such things.  

•Things dedicated to religious or charitable uses are treated to be res extra commercium and can not be subject matter of transfer.  

•No transfer can be made for unlawful object or consideration.

 

 

6(g): Pensions/Stipends

•Civil and Military pensions are not transferable

•They are exempted from attachment under the Code of Civil Procedure.

•Similar provisions are found in the Pension Act

•Pension means a periodical allowance granted on account of past services.

•It is granted for the personal benefit of the receiver.

6(f):Public Office & Salary

•A Public Office or the Salary of a Public Office can not be transferred.

•The prohibition is based on public policy.

•Public interest is likely to suffer if such transfer is permissible under the law.

•The salary is given for upholding the dignity of the office and the proper performance of its duties. So salary is not transferable.

6(e):Mere Right to Sue

•Transfer of mere right to sue is prohibited

•A mere right to sue for damages for breach of contract or tort can not be transferred.

•Claim for-

-past mesne profit

-for damages of for breach of contract

-for suing an agent for accounts

-for pre-emption

    are all mere right to sue

 

•A bare right to sue for mesne profits cannot be assigned, as mesne profits are unliquidated

    damages, and not a debt (Durga Chunder Vs Kailas Chunder,1897).

    ‘B’ publishes a libel of ‘A’. A, transfer his right to sue to B for damages, to C. The transfer is invalid.

S-6(dd):Future Maintenance

•A right to future maintenance is inalienable.

•It is solely for the personal benefit of the person to whom it is granted.

•It is created for maintenance or personal enjoyment of a qualified owner e.g. a Hindu Widow.

•It is in accordance with public policy.

•The prohibition applies to sums due in future and not to sums already accrued or arrears.

6(d):Restricted Interest

•Rights limited to personal enjoyment can not be transferred. A restrict interest can not be transferred since a transfer of such interest would defeat the object of the restriction. Such interests are as follows:

-A Right of Pre-emption.

-Service Tenures Rights

-A Religious Office i.e. Mutawalli of a Wakf

6(c):Easement

 •An easement is a right to use, or restrict the use of land of another in some way. Example:

 - Rights of Way

 -Rights of Light

 -Rights of Water

  An easement involves the existence of dominant heritage and a servient heritage.

  That is, there must be two parcels of land, one ( the dominant heritage) to which the benefit of easement attaches and another ( the servient heritage) which bears the burden of the easement.

  It is a right over one property for the benefit of another property, and therefore,

  It can not exist apart from the property to which it is attached.

  It is not a property itself.

  It is one of the legal incidents of the property to which it is attached, and will pass on to the transferee, if the property is transferred.

  It can not be separated but may be transferred along with the property to which it is attached.

 

 Illustration:

   A, owner of a house X, has a right of way over an adjoining plot of land belonging to B.A transfers this right of way to C. The transfer is a transfer of easement and therefore, invalid.

    But if A transfer s the house itself, the easement passes on to C on such transfer.

 

6(b):Right of Re-entry

•    Right of re-entry is meant a right to resume possession of land which has been given to another person for a certain time.
•    This right of Re-entry is usually inserted in leases empowering the lessor to re-enter upon the premises if the rent is in arrear for a certain period or if there is a breach of covenants in the lease. Right of re-entry can not be transferred. 

Illustration:

 

‘A’ grants a lease of a plot of land to B with a condition that if B shall build upon it, he would re-enter. ‘A’ transfers to C his right of re-entering in case of breach of the covenant not to build. The transfer is invalid because the right is a personal license.

6a)Spes Successionis

Chance of Legacy:

The chance of relation receiving a legacy is a possibility even more remote than the chance of succession of an heir, and therefore, is not transferable.

Other possibilities of like nature:

The possibility of winning a lottery or prize in a certain competition can not be transferred.

Great case relating to spes successionis

Amrit Vs Gaya Singh,45 Cal.590(P.C):

Privy Council observed:

“ A Hindu reversionary has no right or interest in presenti in the property which the female owner holds for her life until it vests in him on her death, should he survive her, he has nothing to assign or to relinquish or even to transmit to his heirs. His right becomes concrete only on her demise; until then it is a mere spas successionis ”

Section 6(a) of the TP Act: Spes Successionis

Things referred in this clause as non-transferable are-

i)the chance of an heir succeeding to an estate.

ii)The chance of a relation obtaining a legacy(a gift by will) on the death of a kinsman,and

iii)Any other mere possibility of a like nature.

iv)  A mere possibility of an heir succeeding to an estate is excluded from the category of

transferable property.

v)The prohibition enacted in this clause based on public policy, namely, that if these transfers were

allowed speculators would purchase the chance of succession from possible heirs and there would

be increase in speculative litigation.

   
•It  means a mere chance of succession or hope of succession or a bare or naked possibility.
•Such a chance is not property. Therefore, if such a chance or expectancy is transferred, the 
transfer is wholly void. 
•The right of a presumptive reversionary under the Hindu Law, or  bare chance of
surviving another and succeeding to his inheritance, is just a spes succession is(hope of
succession) 

Illustration:

    A good illustration of a mere possibility of a like nature is the next cast in a fisherman’s net.No one can guarantee that any fish will be caught, and the fisherman himself has no interest in the fish until they are caught in his net.

   ‘M’ expecting that N,his uncle,who had no issue, would bequest her house worth Taka 90000,transfer it to H.The transfer is invalid.

Law reports in common law countries:

In common law countries, court opinions are legally binding under the rule of stare decisis. That rule requires a court to apply a legal principle that was set forth earlier by a court of the same jurisdiction dealing with a similar set of facts. Thus, the regular publication of such opinions is important so that everyone— lawyers, judges, and laymen can all find out what the law is, as declared by judges.

Official law reports:- Official law reports or reporters are those authorized for publication by statute or other governmental ruling. Governments designate law reports as official to provide an authoritative, consistent, and authentic statement of a jurisdiction's primary law.

Unofficial law reports:- Unofficial law reports, on the other hand, are not officially sanctioned and are published as a commercial enterprise. For the publishers of unofficial reports to maintain a competitive advantage over the official ones, unofficial reports usually provide helpful research aids (e.g., summaries, indexes).

Open publication on the internet:- The development of the Internet created the opportunity for courts to publish their decisions on Web sites. This is a relatively low cost publication method compared to paper and makes court decisions more easily available to the public (particularly important in common law countries where court decisions are major sources of law). Because a court can post a decision on a Web site as soon as it is rendered, the need for a quickly printed case in an unofficial, commercial reporter becomes less crucial.

S-6: What Property can not be transferred under TP Act

Property of any kind may be transferred except the following 9 kinds of Property:

a) Space succession or Hope of succession.

b) Right of Re-entry

c) Easement

d) Restricted Interest

e) Maintenance

f) Public Office and Salary

g) Pension 

h) Transfer opposed to the nature of interest or unlawful object or consideration

i)  Nontransferable  interests

j) Mere Right to Sue
k) Persons disqualified to be transferee

Section 7 of the TP Act: Persons competent to transfer

She/he must be competent to contract

She/he must have title to the property or authority to transfer it, if it is not his own.

Competency to transfer depends upon the competency to contract.

Section 11 of Contract Act deals with the competency to contract.

 
- Every person is competent to contract
- Who is of the age of majority
- Who is of sound mind
- Who is not disqualified from contracting by any law to which he is subject.

Under section 3 of Majority Act, 1875, person attains majority at the age of 18 years.

Things Attached to Earth in TP Act

Attached to earth includes-

a)Things rooted to the earth.

b)Things imbedded to the earth.

c)Things attached to what is so imbedded, and

d) Chattel attached to the earth or building.

The following are not Immovable Property

a)Right of worship.

b)A royalty

c)A decree for sale of immovable property.

d)A decree for arrears of rent.

e)A right to recover of maintenance allowance

f)A machinery which is not permanently attached to the earth.

g)Government Promissory Note

h)Standing timber, growing crops and grass

Judicially recognized Immovable Property

• Right to collect rent of immovable property
• Right to collect dues from a fair on a piece of land.
• A right of ferry.
• A right of way.
• A right of fishery
• A debt secured by mortgage of immovable proper
•   Hereditary offices.
•  Right to receive future rents and profit of land
•   The equity of redemption
•  Reversion in property leased.
•  The interest of a mortgage in immovable prop
• The right to collect lac from trees.
•  A factory

Immovable Property in Registration Act

•Section 2(6) of Registration Act,1908 defines immovable Property is as follows-

“ Immovable Property includes lands, buildings, hereditary allowances, right to ways, lights,ferries,fisheries or any other benefits to arise out of land and things attached to earth or permanently fastened to anything which is attached to the earth but not standing timber,crops,grass.

Immovable Property(IP) in General Clauses Act

•Section 3(25) of General Clauses Act,1897 defines IP is as follows-

“ Immovable Property  shall include land, benefits arising out of land, things attached to earth, or permanently fastened to anything to the earth”

Immovable Property(IP) in TP Act

•Section 3 of TP Act defines Immovable Property is as follows-

“Immovable Property does not include standing timber, growing crops or grass”

The definition of IP given in this section is not exhaustive.

How many laws define Immovable Property(IP) ?

AS many as three laws give the definition of IP

 

- Immovable Property is defined at in 03(three) enactments-

- Transfer of Property Act,1882 (Sec-3)

- General Clauses Act,1897, Sec-3(25)

- Registration Act,1908,Sec-2(6)

Scope of the Act ( TP )

• The scope of the TP Act is limited.

• It does not cover the entire dimension of transfer of property.

• The Act applies to transfers by act of parties.

• It does not regulate a transfer by operation of law i.e.

-Insolvency declared by court, Inheritance.

-Forfeiture or Sale in execution of decree

 • The Act applies only to transfers  inter vivos i.e. transfer by one living person to another living person.

• A transfer of property which takes place under a will or succession is not covered by this Act.

• A major portion of the enactment is applicable to the transfer of immovable of property.

• It saves the rules of Mohammedan Law.

Transfer may be:

By act of parties:

• Sale
• Mortgage
• Lease
• Gift
• Exchange

By operation of law:

• Execution
• Insolvency
• Succession

Object of TP Act

• To bring the rules which regulate the transmission of property between living persons into harmony with the rules affecting its devolution upon death

• To furnish the complement to the work commenced in framing the law of inteste and testamentary succession

• To complete the code of contract law, so far as it relates to immovable property.

How Property can be Transferred

•By act of Parties.

- Sale

- Mortgage

-Lease

-Gift

-  Exchange

•By operation of law e.g. Decree, Succession, Insolvency

The following are not Transfer of Property

•Partition.

•Charge.

•A relinquishment.

•Surrender

•Release deed.

•Family arrangement or Family Settlement.

•Partition of Joint Hindu Family Property.

•Dedication of Property to an Idol.

•Easement

What includes living persons in TP ( Transper of Property ) ?

Living Persons includes-

-A company, or

-An association, or

-Body of individuals whether incorporated or not

Transfer of Property(Sec 5)

i)Transfer of  things (sale of a house)

ii)Transfer of one or more other rights in a thing( Mortgage of a house)

iii)Transfer of a debt.

Meaning of Transfer of Property

Section 5 of Transfer of property  Act defines Transfer of Property-

-an act by which a living person conveys property

-to one or more other living persons, or to himself,

-in present or future

Law reports

Law reports or reporters are series of books that contain judicial opinions from a selection of case law decided by courts. When a particular judicial opinion is referenced, the law report series in which the opinion is printed will determine the case citation format.

Elements:

1. Legal opinion:- In law, a legal opinion is usually a written explanation by a judge or group of judges that accompanies an order or ruling in a case, laying out the rationale and legal principles for the ruling. Opinions are usually published at the direction of the court, and to the extent they contain pronouncements about what the law is and how it should be interpreted, they reinforce, change, establish, or overturn legal precedent. If a court decides that an opinion should be published, the opinion is included in a volume from a series of books called law reports

2. Court:- A court is a tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. In both common law and civil law legal systems, courts are the central means for dispute resolution, and it is generally understood that all persons have an ability to bring their claims before a court. Similarly, the rights of those accused of a crime include the right to present a defense before a court.

3. Case citation:- A legal citation is a "...reference to a legal precedent or authority, such as a case, statute, or treatise, that either substantiates or contradicts a given position."[1] Where cases are published in paper format, the citation usually contains the following information:
Report title
Volume number
Page number
Year of decision.

4. Case law:- Case law is the set of decisions of adjudicatory tribunals that can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law which is guided by previous rulings, for example, previous decisions of a government agency - that is, precedential case law can arise from either a judicial ruling or a ruling of an adjudication within an executive branch agency. Trials and hearings that do not result in written decisions of a court of record do not create precedent for future court decisions.

Law reports are published depending on a country and they are published monthly, yearly, etc. In Bangladesh, there are some law reports, for example, Dhaka law report.

Black's law Dictionary

Today, I am going to tell you about Black' law Dictionary as it is a famous dictionary all over the world. Not only the USA but also the other countries use this dictionary. Whenever I heard about the dictionary thought that it would be a great dictionary for me to learn legal terms. yes, it is so. I think you might be asked to give a good reference about the dictionary in your interview or anywhere. Note that it is hard to collect the original version. We use its copy because its original copy is very cotly indeed. Let's see who was the creator of the dictionary.

Dictionary name: Black's Law Dictionary Status: It is the most widely used law dictionary in the United States.
 Founder: It was founded by Henry Campbell Black (1860–1927).
 Fields of use: For definitions in legal briefs and court opinions and has been cited as a secondary legal authority in many U.S. Supreme Court cases.
Last edition: 9th, its pocket versions, are useful starting points for the layman or student when faced with an unfamiliar legal term.

History:

The first edition: It was, at first, published in 1891.
The second edition: in 1910.

The sixth and earlier editions of the book also provided case citations for the term cited, which some lawyers view as its most useful feature, providing a useful starting point with leading cases. The Internet made legal research easier than it ever had been, so many state- or circuit-specific case citations and outdated or overruled case citations were dropped from the seventh edition in 1999. The eighth edition introduced a unique system of perpetually updated case citations and cross-references to legal encyclopedias.

The ninth edition was published in the summer of 2009. Because many legal terms are derived from a Latin root word, the Dictionary gives a pronunciation guide for such terms.

Bibliography: For your convenience, I gave its bibliography.

Black's Law Dictionary 9th ed. (West Group, 2009),Bryan A. Garner, editor,ISBN 0-314-19949-7 Black's Law Dictionary 8th ed. (West Group, 2004),Bryan A. Garner, editor,ISBN 0-314-15199-0 Black's Law Dictionary 7th ed. (West Group, 1999),Bryan A. Garner, editor,ISBN 0-314-22864-0 Black's Law Dictionary 6th ed. (West Publishing, 1990)ISBN 90-6544-631-1
Black's Law Dictionary 5th ed. (West Publishing, 1979)ISBN 0-8299-2041-2
Black's Law Dictionary 4th ed. (St. Paul: West, 1951)
Black's Law Dictionary 3rd ed. (West Publishing Co., 1933)(the first edition after Henry C. Black's death)
Black's Law Dictionary 2nd ed. (St. Paul, Minn.: West Publishing, 1910)ISBN 1-886363-10-2Public Domain (accessible for free through Google Book Search)
Black's Law Dictionary, 1st ed. (St. Paul, Minn.: West Publishing, 1891)ISBN 0-9630106-0-3 You can also collect the pocket version and non-English version.

History of the Inn: Origins

The exact origins of Lincoln’s Inn, and indeed of the other three Inns of Court, are not fully known.   The extant records of Lincoln’s Inn open in 1422, the earliest of any of the Inns of Court; but a society of lawyers by that name was then already in existence.   It is likely that it evolved during the late part of the fourteenth century. In contrast to many of the colleges of Oxford or Cambridge, which it resembles, there was no conscious founding or dated charter.

First, why “Inn”? As well as applying to the houses used by travellers and pilgrims - the usage that usually comes to mind - the term, or its Latin equivalent hospitium, also applied to the large houses of magnates of all kinds, such as statesmen, bishops, civil servants, and lawyers, whose business brought them to town, especially when Parliament and the courts were in session. The area in which many were situated were then suburbs, salubrious but convenient for both Westminster and the City. This type of inn was often not simply an individual residence but provided accommodation for a whole retinue of guests and typically included, both as a focus for medieval living arrangements and as a status symbol, a hall (indeed, the bishops’ inns were also called palaces). Law students, or “apprentices” of law, who at the period learnt their craft largely by attending court, sought shared accommodation during the legal terms, sometimes in part of an inn of a magnate who did not need it.

Originally there were at least twenty inns associated with lawyers. Gradually these became places of legal education and there emerged the four principal Inns of Court (ie Inns of the men of Court) that we know today. The other Inns became known as the Inns of Chancery. You may come across their names, such as Staple Inn or Clement’s Inn, in the vicinity. They were treated at first as preparatory schools for the main Inns of Court and then during the seventeenth century became the Inns exclusively for attorneys (ie solicitors) and clerks (they had all vanished as societies by the beginning of the twentieth century).

The term “barrister” was originally a purely internal or domestic rank - a graduate of the Inn who had successfully negotiated the elaborate legal exercises set in Hall, which was laid out for moots like a court, with a bar. Although there were various attempts to regulate those who appeared in court, any requirement that they be barristers of an Inn of Court emerged at first only as a matter of practice - a case in 1590 finally confirmed it as a matter of law. And once that happened the process of excluding mere attorneys from membership of the Inns of Court was accelerated.

The recognition of barristers’ exclusive right of audience was no doubt due in part to the thoroughness of the original medieval system of legal education provided by the Inns - at least seven years between admission as a student and call to the bar.   That system completely broke down with the English Civil War in 1642. It has to be said that legal education in the Inns from then until the nineteenth century, or later, cannot be regarded as the most glorious part of their history. The old residence requirements for students were diluted into the mere ritual of dining and the old exercises were reduced to the perfunctory formality of reciting the first few lines of a standard formula from a pre-prepared card.   Bar exams were only introduced in 1852 and were not even compulsory until 1872, and in any event could be passed by anyone with a modicum of application with a few weeks study. So, a far cry from today.

Then, why “Lincoln’s” Inn? Tradition has it that the name comes from Henry de Lacy, third Earl of Lincoln (d. 1311) whose own house was nearby and may have been patron of the Inn. Tradition is not to be entirely gainsaid and indeed the Earl’s arms form part of the Inn’s arms, but it is more likely that the name came from Thomas de Lincoln, one of the serjeants at law (senior practitioners, before the days of QCs) during the fourteenth century.