Report No. 70
Maintenance and Other Rights to Receive Money out of Profits
35.1. Section 39.-
The enforceability of certain rights connected with immovable property, though not directly amounting to an interest therein, is a topic which may arise in a number of situations. Of these, two are dealt with in the Act, namely, (i) right of maintenance and (ii) restrictive covenants on the use of land or obligations annexed to ownership, not amounting to interest or easement.
These are contained in sections 39 and 40, respectively. They both speak of a "third person", but the third is not necessarily a person other than the transferor and the transferee. He could well be the transferor himself, at least in a case falling under section 401. In fact, even under section 39, one can well imagine a case where a person transferring property reserves the right to receive maintenance out of profits.
1. Mulla, (1973), p. 185, para. (2), third para.
35.2. Coming to the text of section 39, it provides that where a third person has a right to receive maintenance, or a right to provision for advancement, or marriage, from the profits of immovable property, and such property is transferred, the right (to receive maintenance or to such advancement or provision for marriage) may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against the transferee for consideration without notice of the right, nor against such property in his hands.
35.3. Amendment of 1929.-
Section 39 has been radically altered by the amendment of 1929. Under the old law, emphasis was laid upon the intention of defeating the right of maintenance etc., while under the present law, emphasis is laid on the element of notice. The mental element of the parties is irrelevant, except that the person against whom the right is sought to be enforced must have notice, or the transfer must be gratuitous. In short, the amendment renders it unnecessary for the maintenance holder to prove that the transfer was made with the intention of defeating the right1.
There is a similar provision in the Hindu Adoptions and Maintenance Act, 1956, section 28 of which is modelled on section 39 of the Transfer of Property Act2.
1. Ramamurthy v. Kanakarathnam, AIR 1948 Mad 205.
2. Kavari v. Parmeshwar, AIR 1971 Ker 216 (217), para. 3.
35.4. Rights created by decree and rights amounting to charges-Scope of the section.-
There appears to be some incompleteness in the language of the section on two questions which are of considerable practical importance, namely-
(a) is it under the section, necessary that the right must be one in the form of a change ?
(b) is the section applicable to a charge created by decree?
On the second question, we do not see any reason why the provisions legislature that the right should assume the form of a charge. In fact, it is a correct view-as was taken in a Nagpur case1-that section 39 is meant for rights which fall short of a charge. This is for the reason that enforcement of charges is a matter specifically dealt with in section 100.
On the second question, we do not see any reason why the provisions of section 39 should not apply to a right created by a decree not amounting to a charge enforceable under section 100. It is true that the Act, in general, does not apply to transfer by decree, but there are two weighty reasons why, in this particular case, a different approach could be adopted. In the first place, section 39 is not concerned with enforceability against a transferee by operation of law.
The proposed amendment will not disturb that position, but will merely bring within the fold of the section rights of maintenance created by decree. Enforcement of the right will still be limited to a transferee by act of parties and, of course, will be subject to the other requirements of the section. Secondly, as a matter of policy, it is desirable that the beneficial provisions of this section should be extended to a transfer of a right created by a decree even if, in general, there may be any theoretical difficulty in extending a provision of the Act to transfers by decree.
We may incidentally mention that the question how far section 100 applies to decretal charges is one which we propose to examine2 under section 100.
For this reason, we recommend that the following Explanation should be inserted below the section by way of making an amendment or clarification on both the points raised above:
"Explanation.-This section applies also to a right created by a decree or order of a court, but not to a right enforceable as a charge under section 100."
1. Ghasi Ram v. Kundan Lal, AIR 1940 Nag 163 (165) (Stone, C.J. & Vivian Bose, J.).
2. To be considered under section 100.