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DR.

RAM MANOHAR LOHIYA NATIONAL


LAW UNIVERSITY, LUCKNOW.
Session: 2015-2016

Subject : PROPERTY LAW - I

FINAL DRAFT
On
RIGHT TO MAINTENACE CAN NOT BE TRANSFERRED BUT
ARREAR OF MAINTENANCE CAN BE TRANSFERRED

UNDER THE SUPERVISION OF:


Mr. RadheyShyam Prasad

SUBMITTED BY:
Shivam Kumar
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Assistant Professor (Law)

B.A. LL.B. (Hons.)

DR. RMLNLU, LUCKNOW

SECTION B Roll NO. 123

ACKNOWLEDGEMENT
I owe a great many thanks to a great many people who helped and supported me
during the writing of this project.
I would like to express my special thanks and gratitude to my teacher Mr.
RadheyShyam Prasad who gave me the golden opportunity to do this project
which also helped me in doing a lot of research work and I came to know about a
lot of new things.
I am really thankful to them.
Secondly I would also like to thank my friends who helped me a lot in finishing this
project within the limited time. I am making this project not only for marks but also
to increase my knowledge. Thanks again to all who helped me.

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- Shivam Kumar

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Table of Contents

The concept of Maintenance under Indian Law..............................................4

Conditions for claiming Maintenance.............................................................6

Persons entitled to receive Maintenance.........................................................7

Right of Maintenance under the Transfer of Property Act, 1882....................8

Transfer of Property: An Introduction.............................................................8

Sub-Section (Dd): Maintenance...........................................................................12

Bibliography.................................................................................................. 14

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The concept of Maintenance under Indian Law

Maintenance was regarded as a duty, a duty of a Hindu, Which he owed to his dependent
relations and by which both, the person and property were bound. There was a distinction
between legal and moral obligation to pay maintenance. When it was legal, it was binding even if
the person did not have any property, but when it was moral and optional; it was matter of
conscience and was unenforceable in the law of courts. However, on the death of a Hindu who
had the moral obligation to pay maintenance, the said moral obligation used to become
transformed, in majority of cases, into a legal obligation. It could then be enforced against the
property left by the deceased. Hindu the principle underlying such rule was that the heir of the
deceased takes the estate not for his own benefit, but also for the spiritual benefit of the person
whose property he inherited.
A male Hindu was under the obligation to maintain his aged parents, unmarried
daughters, legitimate sons and a wife who was chaste, whether he possessed any property or not.
Although a Hindu had no married daughter, whether window or otherwise was destitute was
unable to maintain herself from the sources of her husband or after the death of her father, such
moral right of the marriage destitute daughter used to convert in to a legal right which could be
enforced against the property whether separate or joint, left by her father. The widowed
daughter-in-law had the moral right to be maintained by her father-in-law, the moral right used t
ripen in to a legal right and was enforceable against the property left by her father-in- law. The
property of a Hindu in the hands of his heirs was also liable for the main enhance of his predeceased son's daughter until their marriage and also for providing reasonable marriage
expenses.

A Hindu, however, was under no legal obligation to maintain his sister and step-mother. If,
however, the Hindu male had inherited the property from his father of a Such Hindu male was
under the legal obligation to maintain him. The widow was entitled to maintenance in the same
degree of comfort and luxury as she had in her husband's lifetime. Even an Avaruddha stri {E.G}
a woman who was kept by a man as to maintenance from the separate property of her paramour
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if she was not entitle to maintenance, but if she had stayed with her paramour till his death and
the connection had become permanent then even the estate of that Hindu in the hands of his heirs
was liable. However the concubine, lose her right of Maintenance on her becoming unchaste. A
member of the family who was disqualified to have a share in the joint family property because
of his blindness, deafness, dumbness etc, which were considered as disqualifications under the
Hindu law of in heritance, was entitled to maintenance. The wife and children of such
disqualified heir were also entitled to Maintenance. The right of maintenance was not
ascertained, liquidated or specified then it was not heritable and transferable.
Thus Joint family property was also liable for the maintenance of
every coparcener and his dependants. The right of maintenance was a person and nontransferable. The right to future maintenance was Subject to debts which were payable out of the
property against which the right of maintenance was being enforced. There was no hard and fast
rule to determine the amount of maintenance to be awarded to a person entitled to it, but it
depended upon all the facts of the situation. The only procedure open to recover maintenance
was to institute a suit. The amount of maintenance could be altered depending upon the change
of circumstances. Refusal to maintain was considered to be an offence under Hindu law.

The concept of maintenance in India is covered both under Section


125 of the Code of Criminal Procedure, 1973 (Section 125) and the personal laws. This concept
further stems from Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (the
'Constitution'). Under Indian law, the term maintenance includes an entitlement to food,
clothing and shelter, being typically available to the wife, children and parents. It is a measure of
social justice and an outcome of the natural duty of a man to maintain his wife, children and
parents, when they are unable to maintain themselves.1 The object of maintenance is to prevent
immorality and destitution and ameliorate the economic condition of women and children.

1 Savitaben Somabhai Bhatiya v State of Gujarat and Others (2005)


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Maintenance can be claimed under the respective personal laws of people following different
faiths and proceedings under such personal laws are civil in nature. Proceedings initiated under
Section 125 however, are criminal proceedings and, unlike the personal laws, are of a summary
nature and apply to everyone regardless of caste, creed or religion 2. The object of such
proceedings however, is not to punish a person for his past neglect. The said provision has been
enacted to prevent vagrancy by compelling those who can provide support to those who are
unable to support themselves and have a moral claim to support 3. Maintenance can be claimed
either at the interim stage, ie, during the pendency of proceedings, or the final stage.

Conditions for claiming Maintenance

Under the provisions of Section 125, the burden lies upon the wife, ie, the claimant, to prove that
the husband, ie, the other party, has sufficient means and has neglected or refused to maintain
her and that she is unable to maintain herself.
If an individual is capable of earning, irrespective of whether he actually has the means or not, it
can be concluded that he has sufficient means. The onus then shifts onto the husband, to prove
that he does not have sufficient means to provide the maintenance.
The phrase unable to maintain herself is with reference to the means that were available to the
deserted wife while she was living with her husband. An abandoned wife or divorced woman
need not be reduced to a destitute state before filing for maintenance for herself and her children.
The test is whether the woman is in a position to maintain herself in a similar manner as in her
husbands home.

2 Mohd Ahmed Khan v Shah Bano Begum and Others (1985)


3 Chaturbhuj v Sita Bai (2008)
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Persons entitled to receive Maintenance

Maintenance may be granted to dependent children, parents and legally wedded wives, including
but not limited to a divorced spouse, mistress, illegitimate children, etc.
In certain cases under personal law, the Indian courts have adopted a lenient view and granted
the husband the right to receive maintenance. Such right however, is conditional and typically
conferred upon the husband, only if he is incapacitated due to some accident or disease and
rendered incapable of earning a livelihood. Such an entitlement is not available to an able person,
doing nothing for a living or a wastrel.
The remedy under Section 125 is speedy and inexpensive, as compared to personal laws. The
provision relating to maintenance under any personal law is however, distinct and separate from
Section 125. There is no conflict between both the legal provisions. A person is entitled to
maintenance under Section 125 despite having obtained an order under the applicable personal
law.

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Right of Maintenance under the Transfer of Property Act, 1882

The word property means the right and interest which a man has in lands and chattels to the
exclusion of others. The Legislature does not attempted to define the word property, but it is
used in this act in its widest and most generic legal sense. The definition in sec. 205, Law of
property Act (English), 1925 is Property includes anything in action and any interest in real or
personal property.
Transfer of Property whether moveable or immovable.
5. Transfer of property Defined. In the following sections transfer of property means an
act by which a living person conveys property, in present or in future, to one or more other living
persons, or to himself, or to himself4 and one or more living persons; and to transfer property is
to perform such act. In this section living person includes a company or association or body of
individuals, whether incorporated or not, but nothing herein contained shall affect any law for the
time being in force relating to transfer of property to or by companies, associations or bodies of
individuals5.

Transfer of Property: An Introduction


The word transfer is defined with the reference to the word convey. This word
in English Law in its narrower and more usual sense refers to the transfer of an estate in land; but
it is sometimes used in a much wider sense to include any form of assurance inter vivos. The
4 Ins. by Act 20 of 1929, sec. 6.
5 Ibid.
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word conveys in Section 5 of the Indian Act is used in the wider sense referred to above.
Transferor must have an interest in the property. He cannot sever himself from it and yet convey
it.6 A lease comes within the meaning of the word transfer.7
The words living person exclude transfers by Wills and the Will only
operates after the death of the testator.8 In Ma Kyin Hone v. Ong Boon Hock, 9 a single Judge of
the Rangoon High Court said that the word transfer is a word of very wide meaning and
includes every whereby a party divests himself or is divested of a portion of his interest, that
portion subsequently vesting or being vested in another party. This meaning of transfer is
supported by the aforesaid definition in the Act. The Legislature has not attempted to define the
word property, but it is used in this Act in its widest and most generic legal sense. 10 Section 6
says that property of any kind may be transferred, etc. Thus an actionable claim is property; 11
and so is a right to a reconveyance of land. 12 Property is not only the thing which is the subject
matter of ownership, but includes the dominium or the right or ownership or of partial
ownership, and as Lord Langdale said it is the most comprehensive of all terms which can be
used inasmuch as it is indicative and descriptive of every possible interest which the party can
have.13 It may be noted that property is essentially a bundle of rights and interests. When a
property is transferred, there may be transfer of all the rights in that property or only some of it.
All the rights in the property signify ownership or absolute interest. Only some rights or interests
6 See Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004, p.
73
7 Krishna Kumar Khemka v. Grindlays Bank PLC, AIR 1991 SC 899.
8 See topic Living Persons at p. 3.
9 AIR 1937 Rang. 47
10 Bansigopal v. V.K. Banerji, AIR 1949 All. 433
11 Rudra Perkash v. Krishna, (1887) 14 Cal. 241, 244
12 Narasingarji v. Panaganti, AIR 1921 Mad. 498.
13 Jones v. Skinner, (1835) 5 LJ Ch. 87, 90.
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in a property would mean partial or limited interest. In Sunil Sidharthbai v. Commissioner of


Income Tax,14 the Supreme Court rightly observed that in general, transfer of property means
passing of a right in the property from one person to another. In one case there may be passing of
entire bundle of rights from transferor to transferee, but in another case there may be transfer
only some of such rights. This, if A makes a gift of his house to B, there is transfer of absolute
interest of the house. It is a transfer of property. On the other hand, if A transfers the right of
enjoyment of his house to B for a certain period it is called a lease. It is transfer of only partial
interest in the house but it is also a transfer of property.15

Therefore, it is clear that, the expression transfer of property as defined in section 5 is wide
enough to cover any transaction which has the effect of conveying property from one living
person to another. Since conveying of the property involves the creation of new title or interests
in favour of the transferee. That is to say, if new title or interest has not been created in favour of
the transferee, the property is not conveyed, hence no transfer of property.
To differentiate between the types of property that may be transferred from the non-transferable
type, it is essential to understand the connection that exists between the transfer of property on
one hand, and the S. 60 of the Civil Procedure Code, 1908 (hereinafter, the Code) in this regard,
with close reference to the relevant section of the Code, in trying to understand the nature of
property in general, thereby trying to answer the specific question of whether or not all property
is transferable.
Section 6 of the Act explains the nature of the property liable to be transferred under the said
provision.
In general "property of any kind may be transferred'. There is however, a series of exceptions to
this, as enumerated under sub-sections (a) to (i), explained hereafter. It is interesting to note the
distinct similarity between these sections and those made by Section 60 of the Civil Procedure
14 AIR 1986 SC 368.
15 Sinha, Dr.R.K., The Transfer of Property Act, 11th Ed., Central Law Agency,
Allahabad, 2010, p. 53.
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Code as to the property which cannot be attached in the execution of a decree. Although there is
this similarity yet there is a difference between the exceptions made in this section and
exceptions made in Section 60. Certain things such as tools of artisans and necessary cooking
vessels can be transferred, yet they, under Section 60 of the Code cannot be attached. Apart from
the exceptions made by the present section there are certain restrictions imposed by other laws
on the power of transfer. For e.g., restrictions in Hindu law against the transfer of coparcenary
property.
Section 6 of Transfer of Property Act, provides a list of cases wherein a property is not
transferable, which reads as
Property of any kind may be transferred, except as otherwise provided by this Act or by any
other law for the time being in force
Clause (a) Spes Successionis
Spes successionis means expectation of succession, it is a possibility of getting property in future
through succession. Under this clause the spes successionis includes :(i)

chance of an heir apparent succeeding to an estate,

(ii)

chance of a relation obtaining legacy on the death of a kinsman, or

(iii)

any other mere possibility of a like nature.Clause

Clause (b) a mere right to re -entry for the breach of a condition subsequent;Clause
Clause (c) an easement (apart from dominant heritage);
Clause (d) restricted interest i.e., when the interest in property is restricted in itsenjoyment only;
Clause (dd) a right to future maintenance;Clause
Clause (e) a mere right to sue;
Clause (f) a public office and salary of a public officer;
Clause (g) stipends allowed to military, naval, air force and civil pensioners of theGovernment
and political pensioners;

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Clause (h) Nature of interest, unlawful object, disqualification of transferee. Thisclause deals
with three cases. It says no transfer can be made:
(i) in so far as it is opposed to the nature of the interest affected thereby; or
(ii) for an unlawful object or consideration within meaning of section 23of Indian Contract Act,
1872; or
(iii)to a person legally disqualified to be transferee.
Clause (i) Untransferable interests
This clause removes doubts regarding the non-transferability of occupancy rights. Under
this clause, any tenant having an transferable right of occupancy cannot transfer his
interest as such tenant. The farmer of an estate in respect of which default thas been
made in paying revenue cannot transfer his interest as such farmer and the lessee of an
estate under the management of the Court of Wards cannot assign his interest as such
lessee to any other person.

Sub-Section (Dd): Maintenance


A right to future maintenance is solely for the personal benefit of the person to whom it is
granted and, therefore, cannot be transferred. Before the insertion of this Sub-section in 1929,
there was a conflict of opinion whether the right to future maintenance when it was fixed by a
decree was transferable. It was held in Madras that it was,16 and in Calcutta that it was not.17 The
amendment supersedes the Madras decision. The result is that the assignment of a decree for
maintenance is valid if the maintenance has already become due but as to future maintenance it is
not valid. Arrears of maintenance, therefore, can be assigned.
The effect of this clause is that the assignment of a decree for maintenance would be valid as to
maintenance already accrued due but not as to future maintenance.

16 Ranee Annapurni v. Swaminatha (1911) 34 Mad. 7, 6 I.C., 439


17 Asad Ali v. Haidar Ali (1910) 38 Cal. 13, 6 I.C. 826
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The right of a Hindu widow to maintenance is a personal right and from its nature incapable of
assignment18; but arrears of maintenance can be attached and sold like any other debt 19. The
interest of a Hindu widow in land which has been allotted to her for her maintenance is not
property which can be attached20. But if land is assigned to a Hindu widow in lieu of
maintenance, the transfer of such land is not a transfer of a right of maintenance and is valid
during the widows lifetime21. When villages were allotted to a person, under a compromise, for
his maintenance and without power of transfer during his brothers lifetime, the Privy Council
held that his interest was a right of future maintenance and could not be attached 22, but allowed a
receiver to be appointed to realize the rents and pay thereout what was sufficient for the
maintenance of the judgememt-debtor and the balance to his creditors.
Where, however, a Mahomeden widow retains possession of property in lieu of her dower
debt, she cannot transfer the property even during her lifetime.
A hereditary grant of an allowance of paddy out of the melwaram of land is not a right of
future maintenance23. Grants out of the revenue of an impartible estate for the cadets of the
family are alieanable with a reversion to the grantor on the death of the last male heir24 .

18 Nanak Chand v. Kishan Chand (1900) P.L.R. 209


19 Kasheeshuree v. Greesh Chunder (1866) 6 W.R. Misc. 64
20 Diwali v. Apaji (1886) 10 Bom. 342
21 Dhup Nath v. Ram Charritra (1932) 54 All. 366
22 Rajindra v. Sundara BiBi (1925) 47 All. 385,52
23 Vaidyanatha v. Eggia (1907) 30 Mad. 279
24 Durgadut v. Rameshwar (1909) 36 Cal. 943
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Bibliography

Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004.
Nandi, N., The Transfer of Property Act, 1882, 2 nd Ed., Dwivedi Law Agency,Allahabad,
2010.

Row, Sanjiva, The Transfer of Property Act, 4th Ed., Vol. 1, The Law Book Company(P)
Ltd., Allahabad, 1989.

Sinha, Dr.R.K., The Transfer of Property Act, 11th Ed., Central Law Agency,Allahabad,
2010.

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