Transfer of Property Act (TPA)
Transfer Where a Third Person Has a Right to Maintenance: Section 39 and the Right Enforceable Against a Transferee
A widow, a dependent relative or a child may be entitled to maintenance out of the profits of a piece of land. If the owner sells that land, does the right survive against the purchaser? Section 39 answers by drawing the line where the Act usually draws it: the right may be enforced against a transferee with notice of it, and against a transferee who paid nothing, but not against a purchaser who gave value and knew nothing. Before 1929 the section turned on the transferor's intention to defeat the right; the amendment replaced that with notice, and made the section workable.
Figure 1: The right attached to the property, the transferees it follows, and the purchaser it does not
1. The Section
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 such property is transferred, the right may be enforced against the transferee if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.' |
2. The Essentials
- A third person has a right to receive maintenance, or a provision for advancement or marriage. The right is that of somebody other than the transferor and the transferee.
- The right is out of the profits of immoveable property. It must be a claim upon the income of identified immoveable property, not a merely personal claim against the owner.
- That property is transferred. The section is engaged by the transfer, and it decides the position of the person to whom the property has gone.
3. Against Whom the Right May Be Enforced
The transferee | Position |
|---|---|
A transferee with notice of the right | The right may be enforced against him, and against the property in his hands |
A gratuitous transferee, whether or not he had notice | The right may be enforced against him — he has given nothing, and has no equity to set up against the dependant |
A transferee for consideration and without notice | The right cannot be enforced against him, nor against the property in his hands |
A transferee for consideration who wilfully abstained from enquiry, or was grossly negligent | He is fixed with constructive notice under section 3, and the right may be enforced against him |
A purchaser who saw the dependant in possession | Explanation II to section 3 deems him to have notice of her title, and he takes subject to it |
4. Where the Right Comes From
- The personal law — principally the Hindu Adoptions and Maintenance Act, 1956, under which a wife, a widowed daughter-in-law, children and aged parents may be entitled; and the corresponding rules of the other personal laws.
- A decree of a civil court, whether or not it creates a charge on the property.
- An agreement or a family arrangement, or a provision in a deed of settlement.
- A will, where a testator charges maintenance on property he devises.
Note that the section does not itself create a charge. The right to maintenance is in the ordinary case a personal right; where a decree or an instrument has charged it on property, the charge is enforced on its own terms. What section 39 does is to allow the right, however it arose, to be pursued into the hands of particular classes of transferee.
5. The Amendment of 1929
What changed, and why it matters Before 1929 the section applied only where the transfer had been made with intent to defeat the right. The dependant had to prove the transferor's state of mind, which was usually impossible. After 1929 the enquiry is into the transferee's position instead: did he have notice, and did he pay? The dependant no longer has to prove a fraudulent design, and the purchaser knows exactly what protects him — value and honest ignorance. |
6. Section 39 and Section 6(dd) Together
The two provisions protect the same right from opposite directions. Section 6(dd) prevents the person entitled from transferring her right to future maintenance, so that she cannot be induced to sell her own security. Section 39 prevents the owner of the property from defeating the right by selling the property to someone who knows about it. Between them, the maintenance holder can neither give the right away nor have it taken away behind her back — while a purchaser who paid value in good faith is left undisturbed.
7. Worked Examples
The facts | Result |
|---|---|
A is bound to maintain his widowed daughter-in-law out of the profits of a house, and sells the house to B, who knows of the arrangement | The right may be enforced against B and against the house in his hands |
A gifts the same house to his son C | A gratuitous transfer — the right may be enforced against C, whether or not he knew |
A sells to D, who pays the market price and knows nothing of the arrangement, the dependant not being in possession | The right cannot be enforced against D or against the property in his hands |
D bought without enquiry although the dependant was living in a portion of the house | Possession is notice under Explanation II to section 3; D takes subject to the right |
A decree has charged the maintenance on the house, and D buys with notice of the decree | The charge is enforced according to its terms; section 39 confirms the position against him |
Retention aid Notice or no consideration — bound. Consideration and no notice — free. And remember what the 1929 amendment did: the question is no longer what the seller intended, but what the buyer knew. |
8. Related Topics and Provisions
- Transferee With Notice vs Transferee for Consideration Without Notice — the distinction this section turns on
- Right to Future Maintenance, Section 6(dd) — the companion protection
- Notice under Section 3 — actual, constructive and imputed notice, and the three Explanations
- Section 40, TPA — the neighbouring provision on obligations annexed to ownership
- Hindu Adoptions and Maintenance Act, 1956, sections 18 to 22 — the principal source of the right
- Transfers in Special Circumstances, Sections 38 to 53A — the chapter scheme