Spes successionis is a Latin maxim. It means, the chance of succeeding in a person’s property after his death. It states about the mere possibility of a person to succeed in a property after his death. The heir apparent or any relation expects to succeed in a property by way of will or succession. Then according to the transfer of property act, it does not vest any interest in the property and cannot be subject to transfer.
It is not taken as a transfer because the property is not in the hand of the transferor but a mere expectation to get right over the property in the future. The heir apparent may get a certain property in the future if what he/she thought works in that way. The Transfer of Property Act 1882, governs the transfer of property every aspect and prohibits some way of transfer to protect the principle of equity. The general rule of Section 6 of the transfer of property act is that property with the interest is transferable. The rule of transferability is based on a maxim “Alienation Rei Prefertur Juri Accrescendi”, which means law favors alienation to accumulation. Thus, any attempt by anyone to restrict the owner to alienate his interest in the property is stopped by the law. At the same time when a transferor does not possess a valid interest in the property but makes a transfer for his personal gain and enjoyment which is against public policy such transfer of the interest of the property should not be allowed to transfer. Except mentioned in Section 6 of which spes successionis is apart all other properties are transferable by the act. Apart from Section 6 clause, any person claiming non-transferability has to prove usage and custom.
Transfer of Property Act 1882
This act governs the transfer by the act of parties and amend the prevailing rules governing the same and does not introduce any new principle of law. The act itself mentions in the start that it governs the actions of the parties and does not relate anything with the transfer that takes place by the operation of law. Accordingly, it does not govern any transfer by court auction, forfeiture, acquisition due to insolvency, government grants, and transfer by intestate succession. The primary objective of the act is to bring in harmony between the rules relating to the transfer of property and living persons and devolution of the same. This act also makes the Indian Contract Act 1872 complete as many transfers arise out of a contract between the parties.
Essentials of Valid Transfer –
Whether the property is movable or immovable the compliance of the below-mentioned provisions of the act is a must for Transfer –
- The property must be transferable (Section 6)
- The transferor must be competent to Transfer (Section 7).
- The transferee must be competent.
- The transfers must be according to the provisions of the act
S.6 Spes Successionis – The things referred to in this Sub-section as non-transferable are the chance of an heir succeeding to an estate, the chance of a relation obtaining a legacy (a gift by will) on the death of a kinsman, and any other mere possibility of a like nature.
Note – In the case of Samir Kumar Haldar vs. Nirmal Chandra Banerjee where the transfer is not of right of expectancy of an heir apparent but of the property itself it cannot be said as a transfer of mere chance to succeed. Where a person is not heard for a long time and is believed to be dead any transfer of his property made by his brother who is in enjoyment and possession of the property itself cannot be termed as void under transfer by spes sucessionis.
Exception to rule of transferability – Non-transferability wherein the law prohibits the transfer of property in certain cases that are the exception to this rule. Clause (a) to (i) contains 10 exceptions in Section 6 where the property is not transferable.
Section 6(a) of the Act excludes the chance of an heir apparent for succeeding in the estate from the transferable property. The Latin term is known as the “Spes successionis”. When the transferor does not possess a valid title to the property and hopes for a chance in the future or has an interest in his personal enjoyment. Such transfer is not allowed as against public policy. It’s a kind of illegal and fraudulent transfer.
Example of Section 6 – Where a son hopes to succeed in his father’s property. His acquisition of interest is based on the hope that may or may not get fulfilled. So, to avoid any claim or dispute, later on, the law does not permit us to do so.
Spes successionis under the section includes the following clause
- Chance of an heir-apparent succeeding the estate.
- Chance of a relation obtaining legacy on the death of a kinsman
- Any other mere possibilities of a like nature
1. Chance of an heir-apparent succeeding the estate – Heir apparent who is apparently an heir but not the legal heir. Heir- apparent is a person who will be heir in future if he survives the propositus and propositus does not make any will. It is based on a maxim Nemo Est Heres Viventis which means that a living person does not have any heir. Father and son are entitled to inherit the property of each other. For e.g. if the father dies first, the son becomes heir from heir apparent and inherits the property but is son dies then inheritance is not possible by him. Thus, who dies first is not known so the son cannot be called as heir but only an heir apparent. When the property is succeeded
- Son survives the propositus
- The propositus dies intestate i.e. without any will
It is also possible that the father made a will through which the property is not given to heirs but another person after the death. Thus, before the death of the propositus without will the chance of an heir apparent getting the property is future possible interest.
This future right does not create any interest in favor of an heir apparent. It cannot be taken as present fixed right over the property. Thus, it is termed as non-transferable.
In the case of Shamsudin vs Abdul Hoosein, the Bombay High Court held that “If the heir apparent made a settlement of the property before the death of the propositus and got the money on the account that he would not have a claim in the share then it was held that the transfer was hit by spes successionis and is void. In spite of the execution of the deed, the heir apparent will get his share as the transfer was void ab initio. However, the exchange of money if taken in such a transaction need to be settled.”
Right of reversioners under Old Hindu law –
Reversioner is a person who gets the rights in the property of a widow after her death held by her for life. Thus, under old Hindu law, it is a mere chance of getting the properties and it comes under the spes successionis. They are called reversioners because during the lifetime of widow their rights of inheritance are suspended and revert back on the death of widow provided, they survived her. Thus, Hindu reversioner has no right in the property in the lifetime of a widow and after his death also they must survive her. Thus, it is not transferable.
In Annada Mohan Roy vs. Gour Mohan Mallik, there was a transfer by a Hindu reversioner. The privy council held that since the interest is spes successionis, an agreement to transfer or a transfer does not become effective, the agreement is void.
2. Chance of a Legacy – Clause also provides that chance of obtaining a legacy on the death of kinsman is not transferable. It means to expect certain properties under a will. In India, the law related to wills is well settled that the will operates at the death of the testator not on the date when it is written. However, the date of writing of a will is also of primary importance because the last will prevails if two or more is present. The one which is most recently is taken up and that legatee only gets the property. Accordingly, where a person executes a will the legatee whoever it maybe has only a chance of succession as we don’t know which is the last will or the legatee may not survive the testator. Thus, it is merely a hope to get the property. This kind of person friends, relatives, or any other person receiving property has a more remote chance than the succession of an heir and is therefore not transferable.
3. Any other possibilities of Like nature – Any other possibility of the like nature would mean any other possible interest or property which is as uncertain as chances of an heir apparent or a legatee getting the property under a will. The idea behind the clause is that a property that is merely a future uncertain interest should not be made transferable as it would be against the principles of law. Thus, not only heir apparent and legatee are covered but any other property which is not fixed right of the transferor. The possibility of getting a property as contemplated here is similar to getting a prize or lottery in a competition. And the other properties may be evaluated on the basis of ejusdem generis rule.
In the case of Devi Prasad vs. A.H. Lewis – the dispute arose on the wages of servants. It was held by the Allahabad high court that the future wages before they are earned by the servant are possible interest and cannot be sold attached or transferred.
Illustration – a fisherman contracts to transfer a fish he would get in his next catch the transfer is void ab initio because the transfer is of a future possible interest because the fisherman may or may not get any fish at all in his next catch. The fisherman has no interest in the fish until they are caught like an heir apparent in the property.
Right to Receive Future offerings – It has been a dispute and the opinions of the high courts have been divided. The offerings of a temple or shrine is a beneficial interest and thus property. In Digambar Tatya Utpat vs. Hari Damodar Utpat it was thus held by the court that as the offerings are property the share of priests in the net balance of the offerings already made to an idol may be attached.
The opinion of the High court of Calcutta in Puncha Thakur vs Bindeswari Thakur “The right to receive future offerings is uncertain future right because it is merely a chance that worshipper offers something at the temple. Hence it is a mere possibility that cannot be transferred”.
Allahabad High court in Balmukund And Anr. Vs. Tula Ram – “The court held that future offerings are not so uncertain variable and can pass out the conception of law and held it as transferable.”
However, the supreme court has settled the law as Badri Nath & Anr vs. Mst. Punna (Dead) By Lrs & Ors “The court held that right to receive offerings is coupled with duties other than personal qualification therefore transferable and could be inherited. It held that it does not depend on the possibility of nature referred to in Section 6 of the act. The case involved dispute of future offerings of the temple Vaishno Devi Ji.”
It is also not transferable under Muslim law. It is mentioned in chapter 2 of the act that chapter 2 does not affect any rule of Mohammedan law. So, if the rule of Mohammedan law would have allowed spes successionis it would have been transferable. But it is not allowed.
In Abdul Gafoor vs. Abdul Razack, the Madras High Court held that since the case of Muslims to the transfer of expectancy by an heir apparent is void ab initio, therefore, no question of estoppel arises if the heir apparent renounce his claim.
But in the case of Hameed vs Jameela where the payment was received by the legal heir apparent in lieu of his share in the property. He was held to be estopped from claiming a share. The court held that heir apparent is estopped from succeeding on account of his conduct and the Supreme Court has also approved the decision. In the case of Shehammal vs. Hasan Khani Rawther & Ors, the Supreme Court held that the heir apparent received an advantage for giving up his right in the future property and it was held that he is estopped from claiming double benefit by spes successionis.
Spes successionis in Punjab – the transfer of property act is not applicable in Punjab and therefore the transfer of spes successionis is transferable in Punjab. The transfer of hope or expectancy is held valid in Punjab. The court in Punjab follows the English principle of equity but the court can apply spes successionis in Punjab indirectly by the principle of justice, equity, and good conscience. This brings the law in Punjab at par with the law in other parts of India.
English Law- Under English law also spes successionis is non-transferable property. But is some consideration is given in return for this transfer it is not void ab initio under the English equity. It is the point where English law differs from Indian law. In Indian law even an agreement to assign the spes successionis property is null and void, the actual assignment is far ahead. The transfer of hope for value has been protected by equity. The result is that if an heir apparent transfers the property and transfer is for valuable consideration then when the heir apparent becomes legal heir and gets interested in the property. Equity shall compel the transferor to transfer it to the transferee. Then transfer of expectancy cannot be claimed to be void ab initio. However, the transfer by gift is void and the interest of the transferee is not protected. Thus, in English law, there is no express prohibition of assigning an expectancy for value and it becomes contract as the heir apparent becomes legal heir.
In the case of re parsons – There is no dispute that no one can claim any interest in any property by any law, contingency, or equity of a living person who one hopes to succeed as an heir or by legacy as a kins.
Contingent Interest and Spes Successionis – In a transfer of the property where the vesting of interest depends on any contingency i.e. the uncertain future event, the interest is contingent. The vesting of interest depends upon an event that may or may not happen then the interest is contingent.
- They both are the future possible interests.
- There is no present fixed right in respect of the property
- There is a chance that it may become a title
Differences – the contingent interest has more chances to become a fixed right as it is dependent on something uncertain that have only two possibilities that the event may or may not happen but the spes susccessionis is dependant on several possibilities i.e.
- the heir apparent survives the propositus (deceased person).
- the property must not be transferred by the propositus during his lifetime.
- the propositus must not have made a will so spes successionis is a mere possible future interest
Spes successionis is a future possible interest so by Section 6(A) of the act that transfer is non-transferable interest whereas contingent is not future possible interest it is in the present that is uncertain therefore transfer of contingent interest is permissible by law.
In Ma Yait vs. The Official Assignee, the privy council has remarked about the difference in the two terms “the contingent interest which the children took was something quite different from a mere possibility of a like nature of an heir-apparent succeeding to an estate or obtaining a legacy. It is a well-ascertained form of property it certainly has been transferred in this country for generations through which money is raised and disposed of it in any way beneficiary chooses”
Thus, according to the general law, every kind of property is transferable unless there are some legal restrictions. S.6 makes every kind of property alienable with a few exceptions spes successionis being one of the major. Now through equity, it is well settled that arising out of consideration when the heir apparent gets the property has to follow the contract done when the property was not inexistent. The exception to Section 6 covers 8 exceptions in the clauses provided and under specs successionis it covers heir apparent succeeding an estate, chance of kins obtaining legacy by will, any other possibilities of a similar nature which is held to be void ab initio.
This Article has been written and submitted by Mr. Nikhil Punshi during his course of internship at B&B Associates LLP. Mr. Nikhil is a third-year law student at the Hidayatullah National Law University, Raipur.