Report No. 70
On the above reasoning, we recommend that clause (f) should be followed by a proviso somewhat on the following lines:- "Provided that nothing in this clause shall prohibit the transfer of so much of the salary of the public officer as is not exempt from attachment under the Code of Civil Procedure, 1908, where the transfer is intended to provide for the maintenance of the spouse or child of the transferor whom the transferor is bound to maintain by virtue of the provisions of any law for the time being in force or under a decree or order of a court or an agreement."1
Further, a suitable definition of "public officer" (applying the definition in the Code of Civil Procedure) be added.2
1. Para. 12.49, supra.
2. Para. 12.50, supra.
12.52. Section 6(g).-
Under section 6(g), stipends allowed to military, naval, air force and civil pensioners of the Government and political pensions cannot be transferred.
12.53. Provision in the Code.-
It may be noted that the corresponding provision in the Code of Civil Procedure1 reads thus:
"(g) stipends and gratuities allowed to pensioners of the Government, or payable out of any service family pension fund notified in the Official Gazette by the Central Government or the State Government in this behalf, and political pensions."
It has been held that the gratuity, referred to in this provision of the Code of Civil Procedure, is a bonus allowed by Government to its servants in consideration of past service. It may be allowed to a pensioner in addition to his pension or it may be allowed to a person who is not a pensioner. It is exempt in both cases.2
1. Section 60(g), Code of Civil Procedure, 1908.
2. Bawan Das v. Mut Chand, 1884 ILR 6 All 173.
In the case of political pensions, two considerations are operative, namely, they were granted in view of considerations of a political nature and those considerations were peculiar to the grantee. In the case of Government servants, the primary consideration of public policy is also two-fold, namely, the pension is granted in order that the pensioner may not have to live in penury or discomfort, and secondly, the ultimate object is that the prestige of the Government should also remain untarnished.
Considerations similar to the above have led to the enactment of provisions for exemption frdm attachment in the Code of Civil Procedure and also appropriate provisions in the Pensions Act. Some points relating thereto will be discussed at the appropriate place.
12.55. Pensions Act.-
The same policy that justifies the prohibition enacted in section 6(g) equally renders invalid any assignment of all pensions-whether political, Civil or military-under the Pensions Act.1 The policy of prohibiting the transfer of a pension is to insure its enjoyment by the pensioner in comfort. Being an offering made to the recipient in gratitude for his past services, and being almost always less than the salary which the pensioner was accustomed to draw, it is considered right, that its enjoyment shall be assured to the recipient.2
But, being a limitation on the rights of the creditor, the term should be construed strictly so as to include only a periodical allowance or stipend granted not in respect of a right, privilege, perquisite or office, but on account of past services or particular merits, or as compensation to dethroned princes, their facilities and dependants.3
1. Sections 11 and 12, Pensions Act (23 of 1871).
3. (a) Secretary of State v. Khemchand, ILR 4 Born 432;
(b)Lachmi Narain v. Mokund Singh, ILR 26 AlI 617.
12.56. Pensions Act.-
Sections 11-12 of the Pensions Act, 1871, practically cover the same ground as section 6(g), but there are certain differences. Both deal with pensions of all kinds, but while section 6(g) prohibits their assignment generally, section 12 of the Pensions Act prohibits only their assignment before they are "payable"-a term understood1 to mean "due and demandable by the person entitled".
The leading case is a Madras one,2 in which the Zamorin of Calicut, who was entitled to a political pension of Rs. 6,000 a month payable quarterly, devised to the plaintiff whatever might be in arrears at the time of his death. The Zamorin died on the 6th August, 1892 before the quarterly instalment became payable. The plaintiff sued for its recovery. It was contended that section 12 was not contravened since the transfer was after accrual of a right to receive payment, though not after the payment was actually due.
The Court overruled the contention and held that the word "payable" referred to the time when the payment was ripe and demandable. It then went on to add that even if section 12 of the Pensions Act did not authorise that construction, section 6(g) of the Transfer of Property Act was in point, as it was more positively worded and prohibited all transfers of political pensions. The Court applied the law in section 6 to the will, since wills amongst Hindus had been treated as developments of gifts.
2. Sridevi v. Krishnan, ILR 21 Mad 105 (108).
12.57. Meaning of pension.-
The term "pension" is a relative term and while it is true that the character of non-transferability is not indelibly impressed upon it even after it reaches the hands of the pensioner, still it undoubtedly retains that character so long as it remains unpaid in the hands of the Government, irrespective of whether the intended beneficiary is alive or dead.1
1. Valia Thamburatti v. Anjani, ILR 26 Mad 67 (91).
It appears to us that the phraseology of section 60(g), Code of Civil Procedure, which is wider, is also more precise and should be adopted. We recommend accordingly1.
1. Para. 12.53.
12.59. Section 6(h).-
Under section 6(h), there is a prohibition against three kinds of transfers, namely, no transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872, or (3) to a person legally disqualified to be the transferee.
The first sub-clause in clause (h), as is often pointed out, is really an example of circumlocution, because all that it means is that if the nature of the interest sought to be transferred is such that the interest is not transferable, then it may not be transferred. In this sense this clause tells us nothing new. In any case it cannot be applied without an understanding of the nature of the interest. Recourse, therefore, has necessarily to be had to the nature of the interest, which is determined by the rules of law recognising or creating the particular interest.
In illustration of this prohibition, mention is usually made of things which are nobody's property and to the use of which all are equally entitled, such as air, light and water. How far water can be appropriated-for example, water in a pool or tank is a matter dealt with not in the Transfer of Property Act, but by the relevant rules of other branches of law.1 In particular, the owner of an artificial watercourse might come to have proprietary rights to the water, and in such a case the water may be the subject-matter of private dominion2.
1. Dorumal v. Ramaswami, ILR 11 Mad 16.
2. (a) Inderjit v. Lachme, 14 WR 349;
(b) Debi Prasad v. Joynath, ILR 24 Cal 865 (PC).
12.60. Section 6(h)(2)-Unlawful object or consideration.-
The second sub-clause of clause (h) deals with an entirely different topic. The prohibition here does not depend on the nature of the interest, but on the unlawfulness of the object or consideration pertaining to the transfer. What ever be the nature of the interest, this prohibition applies and in this sense this prohibition is sui generis, unlike clauses (a) and (g).
The expression "object" implies the purpose or intention in an overt act. For example, a person hires a house for a lawful consideration, but with the unlawful object of using it as a gambling house.1 Here the object is unlawful. Similarly, where money is borrowed for the purpose of marriage of a minor which is prohibited by the Child Marriage Restraint Act, 19292 the consideration may not be illegal-the consideration being the loan. But the object is to defeat the provisions of the Child Marriage Restraint Act.
2. Chandrasrinivas Rao v. K. Rajaram Mohan Roy, AIR Mad 579.