Report No. 70

12.41. Section 6(f).-

To revert to section 6, under clause (f), a public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable. Public offices are made non-transferable for reasons of public policy. As regards salary of public officers also, the provision is based on obvious considerations of public policy, namely,

(i) the salary of public officers is paid in order that the may discharge their public functions efficiently and maintain their dignity, and

(ii) public functions, in contrast, with private functions, deserve special treatment. Though salary is the property of the person entitled thereto and therefore that person may, in general, have the freedom of disposition thereof, yet, in the case of public servants, other considerations are material.

12.42. Rationale.-

A rule that anyone may renounce and assign his own benefits, applies only to private rights and benefits, and not to a right created on the ground of public policy. An individual cannot waive a matter in which the public have interest.1 That is the rationale of the prohibition. As the law stands now, this rationale has been considered sufficient to invalidate the transfer of any part of the salary-and this irrespective of the circumstances which might have impelled the transfer.

1. AIR 1941 Born 389.

12.43. Limitation.-

Though the above discussion shows the width of the prohibition, it should, at the same time, be noted that the clause does not prohibit the incurring of any monetary obligation by a public servant. An obligation undertaken by a public servant is not necessarily void merely because it may result in a pecuniary liability. If it is not framed in terms of assignment of salary, it can still be valid.

12.44. Madras case.-

A Madra1 cases must be taken note of at this stage. A was the youngest brother and B the eldest brother. After their father's death, A who was only 10 or 11 years old was educated and brought up by B out of his meagre income. When A had almost completed his college career, he executed an agreement in favour of B.

In consideration of the moneys spent by B from B's earnings on account of A and in consideration of the moneys that would be spent by B in future and out of natural love and affection, A relinquished in favour of B, his interest in the joint family properties and further agreed that A would pay B, on account of the maintenance of B himself and the members of his family after A began to earn a salary or income, sums which would represent a percentage of his monthly income. When A was appointed to a public office in the Public Works Department, he brought a suit for a declaration that the agreement was void and unenforceable.

It was held-(i) that the agreement did not purport to assign the salary of a public officer. It related to the income which A might earn after completing his education. The income might be earned either as salary attached to a public office, or as salary in private employment, or as income in independent practice of the profession. The agreement by itself had nothing directly to do with any public office. Further. A was not bound to pay the amount payable under the agreement out of the salary or income that he earned every month.

He could may it out of his savings or out of any dowry that he might get or out of gifts of any other kind. The agreement, therefore, did not of its own force assign, or effect a transfer of any part of A's salary and therefore it was not void under section 6(f), Transfer of Property Act or on any ground of public policy, (ii) that the payment provided in the agreement was not in the nature of penalty, nor was there anything unconscionable or inequitable in the terms of the agreement so as to grant equitable relief. Nor was it a case for the application of section 74, Contract Act. It appears that at the time when the agreement was made, A was not yet in service.

We need not comment on this decision of the Madras High Court. We may, however, observe that the assignment of monthly income may, in certain circumstances, operate practically as an assignment of the salary. On the contrary view, the prohibition incorporated in section 6(f) might, in practice, be defeated in a large number of cases. It is not in every case that a provision for assignment of "income" can be saved. Since the problem is one of correct application of the law and not of any defect in its formulation, we leave the matter at that.

1. Ananthayya v. subba Rao, AIR 1960 Mad 188 (Subrahmanyan, J.

12.45. Question of maintenance.-

The principle underlying section 6(f) is sound, and it is not our intention to recommend any modification of a radical nature. But it is necessary to consider one question which, while preserving the principle, suggests itself, having regard to the need to take into account certain realities of life.

The precise question to be considered is whether the present prohibition against the transfer of a salary of a public officer should be retained in toto, or whether the law should be amended so as to allow the transfer of a part of the salary in certain special situations. The concrete situation which we have in mind is a transfer of salary made by a public officer in favour of his wife or children in order to provide for their maintenance, where the amount or percentage transferred does not exceed the attachable portion of the salary.

The attachable portion of the salary is dealt with in section 60(1)(i) of the Civil Procedure Code. Necessity for recognising such a transfer as is posed above might arise where there has been a separation between the spouses, or where there have arisen other special circumstances, necessitating the entering into of an agreement of maintenance. As a part of such an agreement, it might become expedient to make provision for the assignment of a portion of the salary, so as to secure to the transferee payment of the amount promised thereunder.

12.46. At this stage, a question may be raised whether the rules relating to maintenance of spouses have purely legal origin, or whether they have also a sociological importance. In this connection, it is to be pointed out that while, historically speaking, in the common law, these rules might have been the inevitable consequence of the doctrine of unity of legal personality of the spouses,1 it is not to be forgotten that in modern times their sociological justification is the necessity to sustain life, coupled, of course, with the obligation undertaken by the spouses.

The obligation to maintain spouses is, so far as England is concerned, now given statutory force.2 The statutory framework in which that provision is placed- the National Assistance Act-is enough to indicate its sociological importance and we may state that it is for the same sociological consideration that there is contained in the Code of Criminal Procedure3 a special procedure regarding proceedings for the maintenance of wife and legitimate and illegitimate children.

1. Bromley Family Law, (1971), p. 401.

2. Section 22(1), National Assistance Act, 1948.

3. Section 125, Code of Criminal Procedure, 1973.

12.47. Need for change.-

As the law now stands in India, not only is an agreement for attachment and deduction of the non-attachable portion illegal in case of a public servant, but also an agreement assigning the attachable portion becomes ineffective by virtue of section 6(f). There seems to be some justification for permitting the transfer of so much of the salary of a public officer as is attachable in execution of a decree where the assignment is bona fide for maintenance as stated above of the spouse or child.

In such cases, in the first place, there is no serious objection on the ground of public policy-since the proposed amendment would relate only to the attachable portion-and, in the second place, because we should take into account the claims of the spouse as a particular overriding consideration as against the general aspect of public policy, assuming that such aspect can have much importance for the attachable portion.

12.48. Provision in Civil Procedure Code.-

Under the Code of Civil procedure, 1908, section 60(i), as amended, four hundred rupees of the salary of an employee and two-thirds of the remainder is exempt. In addition, there is the following further proviso:-

"Provided that where any part of such portion of the salary as is liable to attachment has been under attachment whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree."

It is not our intention that the restriction imposed by the Code on the duration of the attachment should be applied to restrict the duration of the assignment. Attachment is an immediate sanction and exerts a certain amount of psychological pressure, which is absent in the case of an assignment. In any case, the proposed provision is intended to benefit the spouse or child, and for that reason, should be unrestricted as regards duration.

12.49. Recommendation.-

Having regard to the considerations mentioned above, we recommend that in section 6(f), an exception should be carved out-say, by adding a proviso1-permitting the assignment of the attachable portion of the salary of a public officer for the maintenance of his spouse or children or both.

1. This is not a draft.

12.50. Verbal point.-

Finally, a verbal point. The expression "public office" is defined in section 2(17) of the Code of Civil Procedure, 1908, and the expression "public servant" in section 21 of the Indian Penal Code. There is no definition in the Transfer of Property Act of the expression "public office". It may be presumed that for the purposes of the Transfer of Property Act, it is legitimate to apply the definition in the Code of Civil Procedure. This could be usefully provided for.