IS MAINTANACE A CHARGE CREATED ON PROPERTY UNDER SECTION 39 OF TP ACT

IS MAINTANACE A CHARGE CREATED ON PROPERTY UNDER SECTION 39 OF TP ACT

Author: Riya, Jindal Global Law School

ABSTRACT

Section 39 of TP ACT says that:

Transfer where third person is entitled to maintenance: Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and as such property is transferred, the right maybe enforced against the transferee, if he is aware of it or if the transfer is voluntary; nevertheless, he cannot take action against property that is in his possession or against a transferee who is receiving compensation without being informed of their rights. 

However, this provision was amended by the amending act 20 of 1929, Prior to the change; it was essential to demonstrate that the transfer was made with the aim to thwart such a right. But the amendment does away with this. So, according to the current clause, if immovable property is transferred and someone has an entitlement to maintenance from the earnings of that property, that person can assert that claim from the transferee if he is informed of it.

Therefore, the plaintiffs did not need to demonstrate that the transfer was made with the purpose to violate their rights.

INTRODUCTION

This section aims to protect those who are dependent on the property for their maintenance and when these properties are sold, they are left with no or nil support to rely on. This section exclusively protects the dependents. The person entitled to claim maintenance can claim the same to whomsoever the property goes. Does that mean that maintenance run with the property or maintenance is the charge created on property? Let us analyze this section widely to look for the scope of maintenance and up to what extent the same can be claimed?

An instance, a Hindu father having a wife and a son leaves a property in favor of the son through a will and ask son that whatever usufructs are coming out from that property such a tenant rents, Rs 6000 should be paid to wife here the mother every month for her maintenance. After this, son went on to selling the property without making an alternative arrangement for mother on which she was dependent upon and also had claim of maintenance to XYZ person(transferee). Here the mother is entitled to claim her maintenance from XYZ. Against whom entitled is claim should be a gratuitous transferee or a transferee who had notice of the claim seeking maintenance. 

Section 6(dd): “right to future maintenance of TP ACT” says that:

Right to future maintenance in whatsoever manner cannot be transferred in any manner. This benefit is solely given to a person and hence nontransferable. Example, in the case of Dhupnath Upadhyay v. Ramacharit, it was held that a right of maintenance is a personal right and cannot be taken away. 

• Is maintenance a charge created on property?

Even for a Hindu widow, the right to maintenance is an unchangeable, perpetual entitlement. The widow must be in possession of the specific property designated for her maintenance in order for it to be considered a charge, or it must have been constituted one by decree or agreement.

In these situations, giving the transferee notice of the charge is sufficient to bind them. However, in other instances, it had been decided that a transferee was subject to a decree-created maintenance charge regardless of whether he had received notice of it. Those judgements were based on the theory that a charge had a similar impact to a mortgage in that it restricted who could own the property. However, such judgments were incorrect since the modified section 100 specifically states that a charge cannot be enforced against a transferee for consideration and that it was obvious even before the amending act of 1929 that a charge did not, like a mortgage, generate an interest in property. This section deals with the right of maintenance, if not by having been made by a decree or agreement falls short of charge. 

Section 28 of HINDU MAINTENANCE AND ADOPTION ACT and section 39 of TRANSFER OF PROPERTY ACT! Does it override?

A dependent who has right to receive maintenance from property or an estate and that property gets transferred, the obligation is upon the transferee to maintain the dependent if the transferee has received the notice regarding that right or if the transfer is without any reasonable ground. 

Section 28 of Hindu Adoption and Maintenance Act? 

It says that the transferee has to maintain the dependent out of the property he received if he has the notice of the right, or the transfer is gratuitous. 

This idea come from the section 39 of the TP Act, so it does not override section 39 of the TP Act.

A Hindu widow right to maintenance is a personal right and it cannot be transferred. Similarly, the interest of a Hindu widow in land as per her maintenance has been allotted to her is not property which she can transfer. Similarly, a Muslim widow who retains possession of property as her dower debt cannot transfer her property during her lifetime. Whenever a person has right to receive maintenance from a person who is legally bound to maintain him and that person has immovable property, the general law in section 39, T.P. Act would apply. Nothing in Hindu Adoptions and Maintenance Act, 1956 excludes the applicability of section 39 T.P. Act to such cases, the court cannot refuse to create charge for maintenance on the immovable property. Section 28 of the Hindu Adoptions and Maintenance Act, 1956 has not overridden the provisions of section 39 of T.P. Act. 

The right maybe created by act of parties or by law. Only three items are protected under this section namely, maintenance, advancement, and marriage expenses. The view taken in the case of Pavayammal v. Samiappa Gounder; was that taken under the old section, namely that the transferee was not bound, unless he had notice of the intention to defeat the right of the widow(since the words which was in older section i.e., “with the intention of defeating such right”, was omitted by (Act 20 of 1929) The old section of 39, which itself enacted to protect innocent purchases for value and required before a transferee could be made liable as;

• That the transferee must have intended to defeat the right of the third person. 
• The transferee should have notice of such intention and not merely the existence of such right. 

However, this clause was changed because it did not provide enough maintenance or other protection against fraudulent transfers, and because it was sometimes very difficult to prove that the transferee knew the transferor had intended to make a false transfer. Courts have to rely on presumptions of fact to mitigate against the hardship. As a result, the section was changed to reflect the current language in the Transfer of Property Act (Amendment) Bill, 1929 report. Therefore, notice of the right’s existence is now sufficient within the new section for binding the transferee.

Principle of section 39: The fundamental principles of justice, equity, and moral conscience form the foundation of section 39. Allowing a party to transfer its land—which is probably needed to carry out a maintenance decree—would be incredibly unjust. The decree holder would suffer great unfairness as a result of such a method.

According to section 39, if a husband’s property is alienated while the wife is aware of her maintenance rights, the alienation does not affect her rights in any way. She is still able to pursue legal action against the alienated property, and the court may establish charge over it.

A wife’s right to maintenance, regardless of her husband’s property, stems from her marital connection; this ethical obligation, documented in Hindu Texts and Commentaries, was made into a legal requirement. Hindu law prohibits a husband, or Karta, from alienating property if doing so would render it impossible for him to provide maintenance for his wife and other dependents. The woman, notwithstanding being a member of the joint family, is not entitled to any part of the assets of the joint family; rather, she is entitled to maintenance from them, even if her husband obtained them independently. Thus, she can use section 39 of the T.P. Act, 1882 to enforce her husband’s personal obligation to support her by putting a charge on his assets. Although the wife’s right to separate maintenance is not a charge on her husband’s privately acquired or inherited property, under certain circumstances it may be converted into a specific charge in order to safeguard or successfully enforce the right.

If the husband’s activities jeopardize or undermine his right to maintenance with respect to his goods, the court may place a charge on a suitable property to assure the payment of maintenance to the wife or children. It is possible to establish a charge for assets that are not only under the control of the husband or father, but also for assets that are voluntarily transferred or given to others who are aware of his maintenance rights. While living an immoral life, an ungenerous widow’s rights have been suspended and she forfeits her right to maintenance; if she regains her chastity, she can be eligible for a small amount of maintenance. The right to maintenance is forfeited with remarriage, but not upon excommunicated. The clause would apply to maintenance arrears that are within the prescribed time frame. A maintenance provision from the entire family property is entitled to the mother of the coparcener. 

Although a Hindu who follows the Bengal school of thought has only a moral obligation to support his deceased son’s widow, this obligation also becomes legal when it is passed on to his surviving sons upon his death. The extent of this obligation is, however, limited to the portion of the estate that they have inherited from their father. The widow does not lose her claim to maintenance by moving away from her husband’s family, unless it is for unethical or improper reasons, even when her husband, while sui juris, was a party to a deed that unlawfully adopted him from his biological father’s family. 

• What is the “advancement” mean in this section? Analysis. 

Its usage is restricted to those who are covered by English law because it is an outcome of English law. There is no indication of a premeditated “advancement” in preference for a wife, kid, or mistress because Mahomedans and Hindus, both in India and England, widely make and transfer benami. There is a rebuttable assumption of an intended progress in the instance of the parties who were born in India to English parents and who now dwell there permanently. The proof required to refute such an assumption of a planned advancement. The party objecting to the advancement must present the proof required to refute such an assumption. It is not enough to say that he did not grant any beneficial interest to the person making the advancement claim; he must demonstrate, with reasonable clarity, that he had another and distinct reason for the action he took, regardless of whether the property is owned by his wife or child. (Paschand V. Paschand, AIR 1930).

NOTE: This clause does not apply where the courts must uphold the Mohamedan Law. Section 39 of the T.P. Act and the regulations governing Mohamedan law, however, are largely similar and do not differ much from one another.

CONCLUSION

For the benefit of society as a whole, maintenance ought to be gender-neutral and apply to both husband and wife, yet many women are still denied the opportunity to pursue this entitlement especially when it comes to pardanashin women (Although personal Mohamandan law does not get affected by this section). As far as this section is concerned and as per my analysis of this section women, legitimate and illegitimate children should be protected. Act has undergone numerous modifications. In 2002, an act dubbed the Transfer of Property (Amendment) Act, 1882 was made. 

This act was modified to reflect changes in the economy, society, and other spheres of influence. However, there have been no notable changes made to Section 39 within this act; instead, the only noteworthy aspect is the expanded interpretation and comprehension of this section. This section needs wide interpretation to implement it for the rights of dependent section of the society. Although in my view this section should be gender neutral. 

But there is one argument attached with this section as per my understanding that if the property is being transferred which is attached with maintenance for an instance if the property A is transferred to B and it goes on being transferred to many hands until it reaches to person X. If X know that this property encumbers a charge of maintenance on it, then also why would anyone be bind by it. I mean in today’s world property is not easy to buy, you need to have a huge capital for the same. Why anyone oblige to maintain other when he paid the amount for it. This section was enacted in order to protect the rights of a dependent individual. Think of it if they don’t have any source of income and let’s say their close one sells the property then how come they be maintained since they were completely dependent on those usufructs of the property. This would betray the very human rights and their right to get maintained. Up to what time limit they should get maintenance is not specified by the court yet. There is no proximity bar yet.