Transfer of Property Act (TPA)
Right to Future Maintenance under Section 6(dd): Why It Cannot Be Transferred However It Arises or Is Secured
Maintenance is money given so that a particular person may live. That is the whole reason the law protects it, and the whole reason section 6(dd) forbids its transfer. The clause was inserted in 1929 to settle a conflict among the High Courts about whether securing the maintenance on property, or having it fixed by a decree, turned it into an ordinary asset. The answer the legislature gave was emphatic: in whatsoever manner arising, secured or determined, the right to future maintenance cannot be transferred. What has already fallen due is a different matter altogether.
Figure 1: Instalments already accrued and instalments still to fall due, and the sources that make no difference
1. The Clause
Section 6(dd), TPA 'A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.' Inserted by the Transfer of Property (Amendment) Act, 1929. Before it, the courts had differed on whether maintenance charged on immoveable property, or decreed by a court, became an assignable interest. The words 'in whatsoever manner arising, secured or determined' were chosen to close each of those arguments. |
2. The Three Expressions
Expression | What it covers |
|---|---|
'In whatsoever manner arising' | The source is irrelevant — the personal law, a decree of court, an agreement, a family arrangement, a will, or a provision in a deed of settlement |
'Secured' | A charge on immoveable property in favour of the person entitled does not convert the right into transferable property; the security follows the right and shares its character |
'Determined' | Quantification by a decree, an award or an agreement fixes the amount but does not change the nature of the right |
3. Future Maintenance and Accrued Arrears
This is the distinction on which almost every problem turns.
Future maintenance | Arrears already accrued | |
|---|---|---|
Nature | A right to be supported in time to come | A sum of money already due and payable |
Character in law | A personal right, protected for the holder's subsistence | A debt — and therefore an actionable claim under section 3 |
Transferable? | No — section 6(dd) | Yes — assignable under sections 130 to 137 |
Attachable in execution? | No — exempt under section 60 of the Code of Civil Procedure | Attachable like any other debt due to the judgment-debtor |
Can it be relinquished? | It may be given up in a bona fide family arrangement, which is not a transfer | It may be released or compromised like any other debt |
4. Where the Right Comes From
- Personal law. Under the Hindu Adoptions and Maintenance Act, 1956, a wife, a widowed daughter-in-law, children and aged parents are entitled to maintenance in the circumstances the Act sets out; Muslim law and the other personal laws make their own provision.
- Statute, in the criminal jurisdiction. An order for maintenance of wives, children and parents, now under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in place of section 125 of the Code of Criminal Procedure, 1973.
- A decree in a civil suit. Where maintenance is claimed and decreed, with or without a charge on property.
- An agreement or family arrangement. A settlement providing an allowance for a dependant.
- An instrument of transfer or a will. A provision creating a right of maintenance in favour of a named person out of the property disposed of.
Each of these produces a right within clause (dd); none of them produces a transferable one.
5. Section 39: The Right Against a Transferee of the Property
Section 39, TPA Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immoveable property, and that property is transferred, the right may be enforced against the transferee if he has notice of it, or if the transfer is gratuitous — but not against a transferee for consideration and without notice. |
The two provisions work together. Section 6(dd) stops the person entitled from selling the right; section 39 stops the owner of the property from defeating it by selling the property to someone who knows about it. The maintenance holder is protected on both flanks, while a purchaser who pays value in good faith and without notice is protected on his.
6. Why the Law Protects the Right
- It exists for personal subsistence. Maintenance is awarded so that the holder may eat and live; a right that could be sold or pledged would be spent at once and the purpose defeated.
- The holder is usually the weaker party. The classes entitled to maintenance — a deserted wife, a widowed daughter-in-law, aged parents, minor children — are precisely those most likely to be pressed into assigning their future allowance at a discount.
- It is consistent with the exemption from attachment. The Code of Civil Procedure keeps a right to future maintenance beyond the reach of a decree-holder; it would be incoherent to let the holder do voluntarily what his creditors cannot do to him.
- Securing it should improve the holder's position, not endanger it. Charging maintenance on land is meant to make the payment certain. If the charge turned the right into a marketable asset, the very step taken for the dependant's protection would expose her to pressure to sell.
7. Points That Are Often Missed
Question | Answer |
|---|---|
Can the right be surrendered or relinquished? | Yes, in a genuine family arrangement or on a bona fide settlement of disputes; a relinquishment is not a transfer, and the courts have upheld such arrangements |
Can a charge securing maintenance be transferred by the person entitled? | No. The charge is an incident of the right and cannot have a larger transferability than the right it secures |
Can the person liable transfer the property charged? | Yes, but subject to section 39: the transferee with notice, and the gratuitous transferee, take subject to the maintenance |
Is an assignment of arrears valid? | Yes — what has accrued is a debt and an actionable claim |
Can maintenance be attached in execution of a decree against the holder? | No — a right to future maintenance is exempt from attachment under section 60 of the Code of Civil Procedure |
Does the clause apply to maintenance payable to a person who is not a dependant — an annuity, say? | An annuity granted as an ordinary property interest, and not for personal support, is not within the clause; the enquiry is into the purpose of the grant |
Retention aid Past is property, future is personal. The instalments that have already fallen due are a debt and may be sold like any debt. Everything still to come belongs to the person and to nobody else, however it arises, however it is secured, and however precisely it has been fixed. |
8. Related Topics and Provisions
- What May Be Transferred, Section 6 — the general rule and the other exceptions
- Restricted Interest, Section 6(d) — the neighbouring clause resting on the same personal-benefit policy
- Section 39, TPA — the right to maintenance as against a transferee of the property
- Sections 130 to 137, TPA — actionable claims, and the assignment of accrued arrears
- Hindu Adoptions and Maintenance Act, 1956, sections 18 to 22 — the principal source of the right
- Section 60, Code of Civil Procedure, 1908 — exemption of a right to future maintenance from attachment