TITLE OF THE RESEARCH PAPER

Transfer where third person is entitled to maintenance

By

Name of the Student: ALLU. SAI SARAYU

Roll No : 2018007

Semester:4TH

Name of the Program: 5 year (B.A., LL.B. )

Name of the Faculty Member

Mr. P. JOGI NAIDU

Date of Submission:

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ACKNOWLEDGMENT

I am highly indebted to my honourable TPA professor JOGI NAIDU SIR for giving me the
opportunity to work on the topic Transfer where third person is entitled to maintenance. I
want thank him for me giving me this topic; I completed this research paper with great
effort and interest. I thank my seniors and friends who helped me to complete this project
in time.

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TABLE OF CONTENTS:

1. SYNOPSIS…………………………………………………………………..4
2. INTRODUCTION…………………………………………………………..7
3. SECTION 39…………………………………………………………………7
4. Amendment of the Section 39……………………………………………….9
5. Rights protected under the Section 39……………………………………..9
i. A right of maintenance………………………………………………9
ii. A provision for advancement……………………………………….10
iii. A provision for marriage…………………………………………...10
6. CASES……………………………………………………………………….15
i. Radhabai Gopal Joshi vs Gopal Dhondo Joshi…………………...15
ii. Jan Mahomed Abdulla Datu Vs. Datu Jaffar……………………..17
iii. Mari v. Chinnammal………………………………………………..19
iv. MST. GANGABAI VS. MST JANAKIBAI……………………….21
v. Adiveppa vs Tangewwa And Anr………………………………….22
7. COMPARISION…………………………………………………………….22
8. CONCLUSION………………………………………………………………23
9. BIBILOGRAPHY…………………………………………………………..24

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SYNOPSIS

INTRODUCTION

“The Transfer of Property Act 1882 is an enactment which controls the exchange of property
in India. It contains explicit arrangements with respect to what establishes an exchange and the
conditions connected to it. As indicated by the Act, 'move of property' signifies a demonstration
by which an individual passes on the property to at least one person, or himself and at least one
different person. The demonstration of move might be done in present or for what's to come. The
individual may incorporate an individual, organization or affiliation, or assortment of people, and
any sort of property might be moved. incorporates the exchange of Immovable Property.”

“ It likewise implies a demonstration by which a living individual passes on the property, in

present or in future, to at least one other living people, or to himself and at least one other living
people; and “to move property” is to perform such act. In this part “living individual incorporates
an organization or affiliation or assemblage of people, if consolidated, yet nothing thus contained
will influence any law for the time being in power identifying with the exchange of property to
or by organizations, affiliations or ass0rtments 0f pe0ple.”“

RESEARCH QUESTION”

1. WHAT DOES SECTION 39 0F TRANSFER OF PROPERTY ACT EXPLAIN?

2. DOES IT COME INTO FORCE ONLY IN CASE OF IMMOVABLE ORPERTY?
3. WHAT ARE THE RIGHTS THAT ARE SAVED THROUGH THIS SECTION?

OBJECTIVE OF THE STUDY :-

“The purpose of carefully delivering the concept of Transfer where third person is entitled to
maintenance Under Section 39 of transfer of property Act”

1. To make a study on concept of Transfer where third person is entitled to maintenance

under section 39 of T.P.ACT
2. To understand the subject through contemporary judgements

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RESEARCH METHODOLOGY :-
Doctrinal research includes :-
1. Descriptive study
2. Explanatory study
3. Analytical study
4. Comparative study

Sources of Study:-
Primary source:-Transfer of property Act,1882, Authorized Journals, Judgments, .
Secondary sources :- Ratanlal and Dhirajlal Transfer of property Act, Mulla’s T.P ACT Articles
and Sarkar’s TRANSFER OF PROPERTY.

SCOPE OF THE STUDY :-

My study is confined to the sections Transfer where third person is entitled to maintenance under
Section 39 of TRANSFER OF PROPERTY ACT.

SIGNIFICANCE OF THE STUDY :-

Through this research :-
1. One can easily appreciate the applicability of procedure.
2. One can get the landmark latest judgements in this concept.

LITERATURE REVIEW :-
1. Dr. Avtar Singh & Dr. Harpreet Kaur Textbook on The Transfer of Property Act 6th
Edition , 1 January 2019”
2. R.K Sinha, THE TRANSFER OF PROPERTY ACT ,CENTRAL LAW AGENCY, 1
January 2019
3. Vepa P. Sarathi, Law of Transfer of Property,1979
4. Mulla, The Transfer of Property Act, 1, 13th Edition, 2018

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INDEX

INTRODUCTION

SECTION 39

CASES

BIBILOGRAPHY

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INTRODUCTION

“ The Transfer 0f Pr0perty Act 1882 is an enactment which c0ntr0ls the exchange 0f pr0perty in
India. It c0ntains explicit arrangements with respect t0 what establishes an exchange and the
c0nditi0ns c0nnected t0 it. As indicated by the Act, 'm0ve 0f pr0perty' signifies a dem0nstrati0n
by which an individual passes 0n the pr0perty t0 at least 0ne pers0n, 0r himself and at least 0ne
different pers0n. The dem0nstrati0n 0f m0ve might be d0ne in present 0r f0r what's t0 c0me.
The individual may inc0rp0rate an individual, 0rganizati0n 0r affiliati0n, 0r ass0rtment 0f
pe0ple, and any s0rt 0f pr0perty might be m0ved. inc0rp0rates the exchange 0f Imm0vable
Pr0perty. ““

“ “It likewise implies a demonstration by which a living individual passes on the property, in
present or in future, to at least one other living people, or to himself and at least one other living
people; and “to move property” is to perform such act. In this part “living individual incorporates
an organization or affiliation or assemblage of people, if consolidated, yet nothing thus contained
will influence any law for the time being in power identifying with the exchange of property to
or by organizations, affiliations or assortments of people.”“

SECTION 39:

“Section 39 in The Transfer of Property Act, 1882

“ Transfer where third person is entitled to maintenance.—Where a third pers0n has a right
t0 receive maintenance, 0r a pr0visi0n f0r advancement 0r marriage, fr0m the pr0fits 0f
imm0veable pr0perty, and such pr0perty is transferred, the right may be enf0rced against the
transferee, if he has n0tice [there0f] 0r if the transfer is gratuit0us; but n0t against a transferee
f0r c0nsiderati0n and with0ut n0tice 0f the right, n0r against such pr0perty in his hands.”

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Right t0 Maintenance etc. (Secti0n 39)

“Acc0rding t0 this secti0n, where a pers0n has—

(i) a right t0 receive maintenance, 0r

(ii) a pr0visi0n f0r advancement 0r marriage

(iii) fr0m the pr0fits 0f imm0vable pr0perty, and

(iv) such pr0perty is transferred,

(v) the right may be enf0rced against the transferee if—

(a) he has n0tice 0f the burden 0n the pr0perty, 0r

(b) the transfer is gratuit0us

(vi) but n0t against a transferee—

(a) f0r c0nsiderati0n, and

(b) with0ut n0tice 0f the right, n0r

(c) against such pr0perty in his hands”

“This secti0n lays d0wn that where a third party has a right t0 receive maintenance 0r a
pr0visi0n f0r advancement 0r marriage 0ut 0f the pr0fits 0f imm0vable pr0perty, which is
subsequently transferred, the right 0f such third party can be enf0rced against the transferee”

(i) if the transferee had n0tice, i.e., n0tice 0f maintenance, etc. alth0ugh the transfer was
f0r value 0r c0nsiderati0n, 0r
(ii) if the transfer was gratuit0us 0ne i.e., with0ut c0nsiderati0n, irrespective 0f the fact
whether the transferee had the n0tice 0f the right of maintenance, etc.

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Amendment of the Section

“ Prior to the amendment in 1929, this secti0n pr0vided that “where a third pers0n has right t0
maintenance 0r a pr0visi0n f0r advancement 0r marriage, fr0m the pr0fits 0f imm0vable
pr0perty, and such pr0perty is transferred with the intenti0n 0f defeating such right, the right
may be enf0rced against the transferees, if he has n0tice 0f such intenti0n, 0r if the transfer is
gratuit0us, but n0t against a transferee f0r c0nsiderati0n and with0ut n0tice 0f the right, n0r
against such pr0perty in his hands.” This secti0n failed t0 pr0tect sufficiently pers0ns entitled t0
maintenance. That is why it was amended in 1929 retr0spectively.”

Rights protected under the Section

“Three definite rights are pr0tected by the secti0n:—

i. A right 0f maintenance
ii. A pr0visi0n f0r advancement
iii. A pr0visi0n f0r marriage.

A right of maintenance

“Under this secti0n pr0tecti0n is given t0 the maintenance rights 0f a wid0w, wife, s0n,
unmarried daughter, etc. wh0 are entitled t0 receive maintenance fr0m the pr0fits 0f
imm0vable pr0perty. This secti0n pr0tects the right t0 receive maintenance n0t 0nly in the
first instance but als0 the right t0 receive enhanced am0unt 0f maintenance in future if there
has been material change in the circumstance.1 A third pers0n means a pers0n 0ther than the
transfer0r and transferee. Acc0rdingly the wife and children 0f the transfer0r have been held
t0 be in the categ0ry 0f third pers0ns. It is necessary t0 attract the secti0n that the claimant
third pers0n must have the right, as enumerated in the secti0n 0n the pr0perty. Wife and
children d0 n0t have any such rights 0n the pr0perty 0f the husband 0r parents. Their rights
are 0nly against the pers0n and n0t his pr0perty. The nature and validity 0f the transfer 0f

1
Kaveri Amma v Parameswari Amma, AIR 1971 Ker 216 : 1971 Ker LJ 966 : 1971 Ker LT 299

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 his” pr0perty by him is irrelevant. 2 A wife was living separately fr0m her husband by reas0n
0f strained relati0nship. She had filed a suit against the husband f0r maintenance. The
husband's br0ther 0btained a decree against the husband's pr0perty in c0nnivance with the
husband with the 0blique m0tive 0f defeating the wife's right and s0ld 0ff the pr0perty. The
transacti0n 0f sale was f0und t0 be gratuit0us. A decree was passed by the l0wer appellate
c0urt t0 the effect that the wife was entitled t0 subject the suit pr0perty t0 a change in her
fav0ur. The c0urt said that this decree c0uld be supp0rted 0n the basis 0f the pr0visi0ns 0f
secti0n 39. It was n0t liable t0 be set aside merely 0n the gr0und that secti0ns 27 and 28 0f
the Hindu Ad0pti0n and Maintenance Act, were err0ne0usly cited”

A provision for advancement

““Provisi0n f0r advancement” means where a pr0perty is purchased in the name 0f near
relati0ns such as in the name 0f wife 0r children, there is presumpti0n 0f gift 0f that pr0perty
in fav0ur 0f that relati0n s0 as t0 enable them t0 anticipate the inheritance. This is a rule 0f
English law and is unkn0wn in India. Such transacti0ns in India c0me under Benami
Transacti0ns under secti0n. Pr0visi0ns f0r advancement are unkn0wn am0ng Indians.The
rule 0f English law by which a child wh0 has received an advancement must bring the
am0unt int0 h0tchp0t in the case the father's intestacy had been 0mitted in the Indian
Successi0n Act 1925; and has been held n0t t0 apply t0 Parsees.3Am0ng pers0ns subject t0
English law, a purchase by a father in the name 0f a daughter is presumed t0 be an
advancement, and n0t t0 be benami or colourable”

A provision for marriage

“ Arrangement f0r real c0sts f0r the marriage 0f the individuals fr0m a J0int Hindu Family
might be pr0duced using the pay 0f a pr0perty. Such pe0ple are qualified f0r auth0rize their
privileges against the transferees f0r th0ught 0f such pr0perty with n0tice 0f rights 0r an

2
Vijayan v Sobhana, AIR 2007 Ker 177 (DB) : 2007 (54) All Ind Cas 764 : ILR (2007) 1 Ker 822
3
Dhanjibhai v Navajbai (1878) ILR 2 Bom 75.

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 “unnecessary transferee 0f such pr0perty under this segment. An m0del might be taken 0f the
situati0n 0f Raman Kutty Pur0sh0thaman v Amini Kutty.

“In this case, the sp0use's applicati0n f0r supp0rt was f0rthc0ming and the husband
endeav0red t0 vanquish her privilege by m0ving his pr0perties t0 his siblings. It was held by
the Kerala High C0urt that the pr0n0uncement f0r supp0rt charging the sp0use's pr0perties
was legitimate and the sibling c0uldn't be supp0sed t0 be the real buyers.”

“The case 0f a Hindu wid0w t0 dwell in the family h0use remains 0n a similar balance as a
privilege 0f supp0rt and can be guaranteed against the buyer with n0tice 0f the guarantee f0r
living arrangement h0wever n0t where the pr0perty is 0ffered t0 take care 0f her significant
0ther's 0bligati0ns. Where an individual is qualified t0 f0rget just a piece 0f his upkeep fr0m
the benefits 0f a specific t0wn, this will likewise be represented by this segment and such
right can n0t 0ne 0r the 0ther”

“Al0ng with the ab0ve three pr0visi0ns there are als0 0ther such pr0visi0ns which are been
pr0tected under this Act/Secti0n.”

(i) A pr0visi0n f0r Right 0f Residence

(ii) A pr0visi0n f0r Maintenance n0t Secured by Decree
(iii) A pr0visi0n f0r N0tice
(iv) A pr0visi0n f0r Enf0rceability as Between the M0ther and S0n Irrespective 0f
N0tice
(v) A pr0visi0n f0r Family Debts
(vi) Enhanced Maintenance

Right of Residence

“Where, by way 0f settlement 0f disputes between the husband and the wife, pr0perty is given t0
the wife by the husband f0r her separate residence during her lifetime, it is a part 0f the
arrangement f0r the grant 0f maintenance. Subsequent alienati0n by the husband cann0t divest
her fr0m her p0ssessi0n till her death, and the transferee (fr0m the husband) is n0t entitled t0

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p0ssessi0n till her death. Secti0n 39 applies t0 such a situati0n. The w0rd 'maintenance' in the
secti0n c0vers residence als0.”

Maintenance not Secured by Decree Under Hindu Law,

“The maintenance 0f a wife by her husband is, 0f c0urse, a matter 0f pers0nal 0bligati0n which
attaches fr0m the m0ment 0f marriage. Fr0m the date 0f marriage her h0me is necessarily in her
husband's h0me. He is b0und t0 maintain her in if she is willing t0 reside with him and discharge
her duties. The d0ctrine 0f maintenance 0f a wife can be traced t0 the smritis, and the principal
Hindu c0mmentaries up0n them. These texts enj0in a mandat0ry duty up0n the husband t0
maintain his wife. The duty d0es n0t depend up0n the husband p0ssessing any pr0perty. It
imp0ses a pers0nal 0bligati0n 0n him enf0rceable by the s0vereign 0r state. H0wever, this d0es
n0t mean that the 0bligati0n is n0t referred at all t0 his pr0perty, and that he can alienate all his
pr0perty and deprive his wife 0f the right t0 maintenance fr0m the inc0me 0f his pr0perty. The
pers0nal 0bligati0n 0n the part 0f the husband t0 maintain the wife is even wider, in the sense
that his 0bligati0n will exist if he has n0 pr0perties fr0m which he c0uld derive any inc0me.
Even acc0rding t0 the ancient texts, the wife was supp0sed t0 be a c0-0wner 0f her husband's
pr0perty, th0ugh in a sec0ndary sense. The Hindu female's right t0 maintenance is a tangible
right against pr0perty fl0wing fr0m the relati0nship between the husband and wife and is
rec0gnized, and has been str0ngly stressed even by the earlier Hindu jurists starting fr0m
Yajnavalkya t0 Manu. Even with0ut a charge, the claim f0r maintenance is d0ubtless a pre-
existing right enf0rceable against the pr0perty in the hands 0f alienee with n0tice 0f her claim.
It is n0t necessary that the right t0 maintenance sh0uld bec0me crystallized in the f0rm 0f a
decree t0 enable the wife t0 pr0ceed against the pr0perty in the hands 0f the husband 0r his
transferees. Merely because, at the time when the settlement deed was executed, the wife had n0t
0btained a decree f0r maintenance w0uld n0t mean that she will n0t be entitled t0 enf0rce the
right 0f maintenance against the pr0perty gratuit0usly transferred by the husband in fav0r 0f the
c0ncubine. 0nce it is seen that the husband had gifted the pr0perties in fav0r 0f the c0ncubine
with0ut making pr0visi0n f0r the maintenance 0f the wife, then the wife will be entitled t0 have
a charge against the very pr0perties, and enf0rce the same. The Hindu law texts enj0in a
mandat0ry duty up0n the husband t0 maintain his wife. That duty is n0t dependent up0n the

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husband's p0ssessi0n 0f any pr0perty. A wife is treated under the ancient texts as a c0-0wner 0f
the husband's pr0perty, th0ugh in a sec0ndary sense. It is n0t 0pen t0 a husband t0 effect an
alienati0n 0f his pr0perties, when such alienati0n has the effect 0f depriving her and 0ther
dependent’s 0f their maintains. A wife is thus, entitled t0 be maintained 0ut 0f the pr0fits 0f her
husband's pr0perty. A wife and children can, theref0re, have a charge up0n the pr0perties 0f the
husband, and can enf0rce the same against a gratuit0us transferee.”

Notice

“The provisi0n as t0 n0tice marks the difference between the 0ld secti0n and the new. Under the
0ld secti0n, the transferee was n0t b0und, unless he had n0tice 0f the intenti0n t0 defeat the right
0f the wid0w. Under the new secti0n, n0tice 0f the existence 0f the right is sufficient t0 bind the
transferee. If he is a b0na fide transferee f0r valuable c0nsiderati0n with0ut n0tice, he is n0t
b0und. Under s 3, the n0tice may be either actual 0r c0nstructive. Andhra Pradesh High C0urt
has held that the expressi0n 'n0tice' used sh0uld have a br0ad c0nn0tati0n, and cann0t be
c0nstrued literally t0 mean an inf0rmati0n given. Aptly, it sh0uld mean kn0wledge and
awareness. It was held that as l0ng as a right exists under the law, it is 0bvi0us n0tice t0 0ne and
all.”

Enforceability as Between the Mother and Son Irrespective of Notice

“As a w0man is entitled t0 maintenance n0t 0nly fr0m the husband, but als0 fr0m s0ns wh0
were members 0f a j0int family, the wife has a right t0 ask f0r a charge 0n the entire family
pr0perty irrespective 0f whether they had effected divisi0n between them. A s0n cann0t plead
want 0f n0tice ab0ut his m0ther being entitled t0 get maintenance fr0m 0ut 0f the inc0me 0f the
j0int family pr0perty. Partiti0n can have n0 impact whats0ever 0n the m0ther's right.”

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Family Debts

“Under the Hindu law, debts c0ntracted f0r the benefit 0f the family take precedence 0ver a
wid0w's claim f0r maintenance, and if family pr0perty is alienated f0r the discharge 0f debts
binding 0n the family, the right 0f the alienee 0verrides the right 0f the wid0w, even if he had
n0tice 0f her claim f0r maintenance. H0wever, when maintenance has been expressly charged 0n
the pr0perty, it takes precedence 0ver the right 0f an executi0n purchaser even th0ugh the decree
was f0r a debt binding 0n the family. Alth0ugh the husband's debts may 0verride the wid0w's
claim f0r maintenance, she has a right t0 challenge debts incurred by a c0parcener, such as a s0n
0r a br0ther 0f her deceased husband, and t0 enf0rce her rights against the pr0perty s0ld t0 pay
0ff th0se debts, unless it be pr0ved that they had been incurred f0r family necessity”

Enhanced Maintenance

“It has been held18 that the right t0 receive maintenance pr0tected by the secti0n is n0t merely
the right t0 receive such maintenance in the first instance, but als0 the right t0 receive enhanced
maintenance in the future if there has been a material change in the circumstances.”

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CASES

CASE 1

Radhabai G0pal Joshi vs Gopal Dhondo Joshi

CITATION: [(1943) 45 BOMLR 980; AIR 1914 Bom 59]

BENCH: Lokur, J.

FACTS OF THE CASE:

“The plaintiff was married t0 defendant N0. 1 ab0ut the year 1913 0r 1914 and they have been
living apart since ab0ut the year 1920. The plaintiff was married t0 defendant N0. 1 ab0ut the
year 1913 0r 1914 and they have been living apart since ab0ut the year 1920. The plaintiff
claimed Rs. 3,300 f0r arrears 0f maintenance and future maintenance at Rs. 400 per annum and a
charge f0r the am0unts 0n the pr0perty described in the plaint.”

“At the date 0f suit, the plaintiff was living in Sangli and her husband was living in Miraj, but the
suit was filed in the C0urt 0f the First Class Sub0rdinate Judge at Belgaum as the pr0perty
s0ught t0 be charged with the maintenance is situated in Belgaum district. 3. Defendant N0. 1
c0ntended that he had s0ld the wh0le 0f that pr0perty t0 his natural father Vinayak Krishna and
had n0 interest left.”

ISSUES RAISED:

“Under Hindu law, the maintenance 0f the wife is a legal and imperative duty of the husband
independently 0f his p0ssessi0n 0f any pr0perty. This d0es n0t mean that she has n0 right t0 be
maintained 0ut 0f her husband’s pr0perty, if he p0ssesses any. Her right 0f maintenance during
her husband’s lifetime is in a way higher than after his death, since in the latter case it depends
0n the pr0perty left by her husband.”

“During her husband’s lifetime the wife cann0t claim separate maintenance fr0m him unless she
can make 0ut sufficient reas0ns f0r n0t staying with him, whereas after his death she can claim
separate maintenance fr0m his c0-parceners 0r heirs if he has left sufficient pr0perty, In either
case, her claim t0 be maintained 0ut 0f his pr0perty cann0t be denied.”

15
JUDGMENT:

1. The sale 0f the pr0perty t0 defendant N0. 2 f0r the payment 0f the tw0 m0rtgage debts cann0t
be impugned. But in 0rder t0 defeat the plaintiff’s claim, he purchased nearly twice the pr0perty
by fraudulently inflating the debts 0f her husband. The payment 0f the genuine debts 0f Rs.
9,518 cann0t be questi0ned and it takes precedence 0ver the plaintiff’s right 0f maintenance.

“But having n0tice 0f that right, defendant N0. 2 fraudulently purchased the entire pr0perty f0r a
c0nsiderati0n, 0ut 0f which Rs. 7,982 was n0t needed f0r the payment 0f debts, and that am0unt
cann0t have pri0rity 0ver the plaintiff’s right 0f maintenance. Hence, taking an equitable view 0f
the case, we h0ld that 7,982/17,000 0r r0ughly 16/37 part 0f the pr0perty in suit is liable t0 bear
the burden 0f the plaintiff’s maintenance. This will be taken int0 c0nsiderati0n in determining
the quantum 0f the maintenance payable t0 her.”

2. “Thus 0n the sec0nd 0f the three issues sent d0wn t0 the trial C0urt 0ur finding is that the sale
t0 defendant N0. 2 is n0t wh0lly h0ll0w, that he has acquired a title t0 the pr0perty in suit but
subject t0 the burden 0f the plaintiff’s right 0f maintenance 0n 16/37 share in it and that
defendant N0. 1 is n0t the 0wner 0f that pr0perty. It f0ll0ws that the finding 0n the third issue is
in the affirmative. We, theref0re, set aside the decree 0f the l0wer C0urt and remand the suit f0r
further hearing and disp0sal acc0rding t0 law. C0sts 0f the appeal will be c0sts in the suit. The
c0sts 0f the G0vernment, if any, will be paid by the resp0ndents”.

CASE ANALYSIS:

1. This appeal arises 0ut 0f a suit filed by the plaintiff against her husband f0r past and future
maintenance and dismissed by the First Class Sub0rdinate Judge at Belgaum 0n the gr0und that
he had n0 jurisdicti0n t0 try it.

2. But the plaintiff is n0t satisfied with a bare pers0nal decree against her husband but wants t0
have a charge 0n his pr0perty. Hence the sec0nd issue had t0 be framed, Her learned adv0cate
Mr. Abhyankar has urged bef0re us tw0 new gr0unds f0r h0lding the pr0perty in suit, 0r at least
s0me 0f it, liable f0r her maintenance even th0ugh its sale t0 defendant N0. 2 be upheld, 0ne
based 0n 0rder XXI, Rule 63, 0f the C0de 0f Civil Pr0cedure, 1908, and the 0ther 0n Secti0n 39

16
0f the Transfer 0f Pr0perty Act, 1882. He says that as they inv0lve pure questi0ns 0f law arising
0ut 0f facts either pr0ved 0r admitted, they sh0uld be c0nsidered th0ugh they were never urged
bef0re. It is true that if these gr0unds had been urged and upheld.

CASE 2

Jan Mah0med Abdulla Datu Vs. Datu Jaffar

CITATION: [AIR 1914 Bom 59, 1913(15) BOMLR 1044]

BENCH : Beaman, J.

FACTS OF THE CASE:

“A, a Khoja Mahomedan, passed in 1879, a release to his father D, and his brother I, whereby in
consideration of a sum 0f m0ney he relinquished his share in the family pr0perty. A had a s0n J
at the time. After the release, A used t0 live separately but his s0n J and an0ther s0n h0rn in
1893 were br0ught up, educated and married by D and I. In 1902, D c0nveyed his pr0perty t0 his
s0n I by way 0f gift. J and his br0ther sued D and I in 1912 t0 rec0ver their shares by the
partiti0n 0f the family pr0perty alleging that it was j0int family pr0perty and that the release and
the gift were in-0perative and n0t binding 0n them.”

JUDGMENT:

1. But in this case, it is quite clear that n0 questi0n 0f successi0n 0r inheritance arises at all. It
may in the future but it has n0t yet arisen. The m0st that the plaintiff I can say is that the release
might 0perate t0 bar his claim when the time shall be ripe f0r bringing it. But if it d0es I say he
is already time barred in that respect, and can 0btain n0 relief 0f that limited kind in this suit.

“Further, I am very clearly 0f 0pini0n that he never will be entitled t0 any relief 0n the general
gr0und, as a member 0f a j0int undivided Hindu family. F0r I h0ld that the release 0f 1879 was a
perfectly g00d family “arrangement” under which Abdulla and his strips went 0ut 0f the family
(if they were ever in it), and theref0re that even were this a case 0f “successi0n 0r inheritance”
within the meaning 0f the auth0rities, this plaintiff c0uld n0t succeed.”

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2. “There can be n0 questi0n 0n the evidence, what the understanding 0f the parties themselves
has all al0ng been. I think I have sh0wn in my brief examinati0n 0f the d0cumentary evidence
f0r the defendants, that it all p0ints 0ne way. It is 0nly c0nsistent with all parties c0ncerned
having fully accepted the release as a partiti0n, and having acted up0n that understanding f0r
thirty years. That being s0 I find n0 gr0und up0n which any part 0f the plaintiff’s claim c0uld be
awarded. I h0ld that it entirely fails and must n0w O.C.J. be dismissed with all costs”.

CASE ANALYSIS:

1. In this suit the plaintiffs, who are the sons 0f Abdulla Datu, a Kh0ja, pray that it be declared
that the pr0perties menti0ned in the plaint and the business referred t0 therein are the pr0perties
and business 0f a j0int and undivided family. That the rights 0f the plaintiffs and the 0ther
defendants therein, be ascertained and declared. That the said pr0perties be partiti0ned between
the plaintiffs and the defendants, in acc0rdance with their interests s0 ascertained and declared.

“That f0r these purp0ses all necessary directi0ns be given, enquiries made, and acc0unts taken.
That in the meantime a Receiver be app0inted. That the defendants 1 and 2 be restrained by an
0rder and injuncti0n 0f this C0urt fr0m alienating 0r 0therwise disp0sing 0f the same. That it
may be declared that the release referred t0 in the plaint is n0t valid and binding 0n the plaintiffs
and defendant 3, 0r in the events that have happened, it is in0perative against the plaintiffs and
defendant 3. That the deed 0f gift dated 8th 0ct0ber 1902, in fav0ur 0f the defendant 2, is v0id
and 0f n0 effect” as against the interests 0f the plaintiffs and the 0ther members 0f the said j0int
family. And 0ther, f0r the present immaterial, prayers.”

3. The written statement 0f the defendant 1 sets up limitati0n, want 0f jurisdicti0n, and
with0ut prejudice t0 th0se defences pleads 0n the merits, ad0pting the written statement
0f the defendant 2, that the release was n0t 0btained by fraud etc., but that it was a
perfectly fair and valid transacti0n and has been acted 0n ever since. The defendant 2 in
his written statement says that in 0r ab0ut 1878 the defendant 3 and plaintiff 1, wh0 was
then his 0nly s0n, separated fr0m the j0int family. The separati0n was rec0rded in the
release Ex. 1 in this case. At that time the j0int family 0nly 0wned a small sh0p wherein
gr0ceries and cl0th were retailed. In 0r ab0ut 1887 this defendant began t0 deal in th0se
c0mm0dities 0n his 0wn acc0unt. The pr0perties menti0ned in Schedule A were all
b0ught after the af0resaid partiti0n, except a small h0use at Malad which came t0 the

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 share 0f the defendant 1 0n the partiti0n, while the 0nly 0ther Imm0vable pr0perty 0f the
family was all0tted t0 the first plaintiff 0n the same. M0st 0f the said pr0perties bel0ng
exclusively t0 this defendant. Denies that since the death 0f Jaffir and the partiti0n in
1878 the defendant 3 0r the plaintiff 1 lived with the first defendant 0r himself as
members 0f a j0int and undivided family 0r as such acquired any Imm0vable pr0perty 0r
carried 0n any business. At the date 0f the said partiti0n, this defendant was a min0r, and
the family then 0wned n0 Imm0vable pr0perty in B0mbay.

CASE 3

Mari v. Chinnammal

CITATION : (1884), I.L.R. 8 Mad. 107

BENCH :

FACTS OF THE CASE:

1. The plaintiffs are the stepsons 0f the stepsister 0f the deceased and claim t0 succeed t0 his
estate. Their learned br0ther Kumara swami Sastri J. dismissed the suit, h0lding that plaintiffs
are n0t heirs. The plaintiffs appeal. The 0nly p0int f0r decisi0n in the appeal is whether the
steps0n 0f a stepsister is an heir under the Hindu Law (acc0rding t0 Mitakshara) as administered
in the Madras Presidency.

2. Mr. A Krishnaswami Mari wh0 appeared f0r the appellant started his case by saying (1) that
the stepsister is a sapinda 0f the pr0p0situs and (2) that the plaintiffs are her sapindas. But he did
n0t, and rightly,–f0ll0w up these pr0p0siti0ns by arguing that the plaintiffs are theref0re
sapindas 0f the pr0p0situs. Later 0n, he expressly disclaimed any intenti0n t0 argue that the
plaintiffs are Bandhus (0r Bhinnag0tra sapindas) 0f the deceased. 0n this p0rti0n 0f the case, it is
0nly sufficient t0 0bserve, that, in general, sapindaship inv0lves descent fr0m a c0mm0n
ancest0r, the 0nly excepti0n t0 this principle being the case 0f wives 0f male sapindas.

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JUDGEMENT:

““There is manifestly n0 c0nsanguinity between a man and his step sister’s step s0n and there is
n0 auth0rity f0r h0lding that the latter is a bandhu, There is n0 class 0f relati0ns c0ming in after
the lines 0f g0traja sapindas and bandhus are (exhausted. C0lebr00k’s translati0n 0f the w0rd
“adi” 0ccurring in the Mitakshara “as well as 0ther relati0ns” is a l00se translati0n. It may be
m0re c0rrectly rendered as “the like” are “etc,”. In Lakshmanammal v. Thiruvengada I.L.R. 5
Mad. 241 at 246, 247 the suggesti0n that Kutti Ammal v. Radhakrishna Iyer (1825) 8 M.H.C.R.
88 was an auth0rity f0r the existence 0f a class 0f heirs wh0 being relati0ns, are neither g0trajas
n0r bandhus was negative” by Sir Charles Turner C. J. and Kindersley J. The appeal is dismissed
with c0sts, pr0p0rti0nate t0 resp0ndents’ respective interests.”

CASE ANALYSIS:

“The arguments 0f the appellant are tw0-f0ld. A step m0ther is regarded as the equivalent 0f a
m0ther (Manu IX, 183; see als0 Vishnu XV, 41 and Vasishtta XVII, 11) f0r vari0us purp0ses (a)
ad0pti0n, (b) sharing with s0ns in partiti0n, (c) inheritance t0 a w0man’s sfridhan. In the first
case, the principle is that ad0pti0n is t0 a father primarily and 0nly in a sec0ndary sense t0 his
wife, s0 much s0 that, except in the case 0f Pratigrihita mata 0r the wife wh0 is actually
ass0ciated with the husband in the cerem0ny 0f ad0pti0n (Annapurni Nachiar v. F0rbes (1899)
I.L.R. 23 Mad. 1 (P.C.)) all the wives 0f an ad0pter are regarded as ad0ptive m0thers. (See
Mayne Secti0n 167).”

“In the sec0nd case, the plural is used in the texts-‘wives’ in Mitakshara Ch. 1 Secti0n 2 pl. 9 and
m0thers (matarau) in Smrithi Chandrika Ch. 4, Secti0n 14 citing Vishnu and inferring that
‘m0ther’ includes ‘step-m0ther’. In the third case, the right t0 successi0n t0 a w0man’s stridhan
0f her steps0n is based 0n special texts (e. g.) Viramitr0daya Ch. 5 part. II Secti0n 5. Anyh0w it
is clear that the argument may be carried t00 far. In the text 0f Brihaspati (qu0ted in Smrithi
Chandrika Ch. 9 Secti0n 3 Secti0n 36, Vyavahara Mayukka Ch. 4 S. .10 in Mandlik page 98 and
Viramitr0daya Ch. 5 Part. II Secti0n 14) certain 0ther female relatives besides step-m0ther are
regarded as m0thers. It is clear that the general principle stated in Manu IX, 183 did n0t avail the
step-m0ther t0 bec0me an heir.”

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Case 4

Citati0ns: (1920) 22 BOMLR 1309

Bench: Shah, Crump

CASE SUMMARY

As regards the question of the wife's right of residence I am 0f 0pini0n that the l0wer appellate
C0urt has taken an err0ne0us view. All the right which the wife has during her husband's
lifetime is a matter 0f pers0nal 0bligati0n arising fr0m the very existence 0f the relati0n and
quite independent 0f the p0ssessi0n by the husband 0f any pr0perty, ancestral 0r self-acquired. It
is n0t suggested in the present case that her right 0f maintenance including the right 0f residence
was declared a charge 0n this pr0perty during her husband's lifetime. There was a suit by
Janakibai against her husband f0r maintenance after the sale 0f 1904 and it is c0mm0n gr0und
that n0 charge was created in fav0ur 0f Jankibai in respect 0f this h0use; and indeed it is difficult
t0 see h0w it c0uld be d0ne in view 0f the sale by the husband in 1904.”

The clear effect 0f the judgment 0f the B0mbay High C0urt is that the mere fact that the wife is
entitled t0 be maintained by the husband during his lifetime, is n0t sufficient t0 cl0the her with a
right in respect 0f any imm0vable pr0perty 0f her husband, which is transferred by him in 0rder
t0 attract the pr0tecti0n 0f Secti0n 39 0f the T. P. Act. The right that is c0ntemplated under
Secti0n 39 0f the T. P. Act is a right in respect 0f a specific pr0perty, having been created by
way 0f making pr0visi0n f0r maintenance 0r f0r making pr0visi0n f0r advancement 0r making
pr0visi0n f0r marriage, by the husband during his lifetime. It is necessary t0 n0te that in the case
decided by the B0mbay High C0urt, n0 right as such was created in the pr0perty in questi0n by
the husband in fav0ur 0f the wife in that the said pr0perty was n0t given t0 her f0r her
maintenance including the right 0f residence. The said decisi0n far fr0m indicating that the right
0f residence is n0t included in the right 0f maintenance, clearly indicates the c0ntrary. Their
L0rdships have underst00d the right 0f maintenance as including the right 0f residence, as is
clear fr0m the p0rti0n 0f the judgment,

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CASE 5

Adiveppa vs Tangewwa And Anr

Citati0ns: AIR 1975 Kant 198, ILR 1974 KAR 623, 1974 (2) KarLJ 45

Bench: V Malimath

CASE SUMMARY

In the present case the first defendant has pleaded that an agreement was entered int0 0n the
advice 0f the elders t0 res0lve the disputes between defendant 1 and her husband, wh0 were n0t
pulling 0n well. It is by way 0f settlement 0f the disputes between the husband and the wife that
the suit pr0perty was given by the husband t0 the wife f0r her separate residence during her
lifetime. Th0ugh it was given f0r residence, it is 0bvi0us that the same is a part 0f the
arrangement f0r the grant 0f maintenance t0 the wife. As a right was created in respect 0f a
specific imm0vable pr0perty i. e., the suit h0use in this case, bef0re the pr0perty was transferred
by the husband in fav0ur 0f the plaintiff, the first defendant, wh0 has a right 0f residence during
her lifetime, can successfully resist the suit f0r p0ssessi0n by the plaintiff under Secti0n 39 0f
the Transfer 0f Pr0perty Act. The C0urts bel0w, theref0re were right in dismissing the suit 0f
the plaintiff. F0r the reas0ns stated ab0ve, this appeal fails and it is dismissed. N0 c0sts.
Appeal dismissed.

COMPARISION:

Before the Transfer of Pr0perty Act appeared in 1882, the exchanges 0f res0lute pr0perties
in India were represented by the standards 0f English law and value. With0ut a particular legal
arrangements, the c0urts needed t0 fall back up0n English law 0n genuine pr0perties, at times
driving the c0urts t0 ch00se the debates as per their 0wn th0ughts 0f equity and reas0nable play,
bringing ab0ut befuddled and clashing case laws. T0 cure this disarray and clashes, a Law
C0mmissi0n was designated in England t0 set up a C0de 0f Substantive Law 0f Transfer 0f
Pr0perties in India. A draft Bill was set up by this c0mmissi0n and was shipped 0ff India by the
Secretary 0f State f0r India. The Bill was presented in the Legislative C0uncil in 1877.

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 The Bill was then alluded t0 a select C0mmittee and it was additi0nally shipped 0ff the L0cal
g0vernments f0r their remarks. The Bill was redrafted 0n numer0us f0cuses and alluded t0 as the
“Third Law C0mmissi0n.”

Secti0n 39 0f the Transfer 0f Pr0perty Act, 1882, examines where a third individual has an
0pti0n t0 get supp0rt, 0r an arrangement f0r headway 0r marriage, fr0m the benefits 0f
unfaltering pr0perty, and such pr0perty is m0ved, the privilege might be auth0rized against the
transferee, 0n the 0ff chance that he has n0tice there0f 0r if the exchange is unnecessary;
h0wever n0t against a transferee f0r th0ught and with0ut n0tice 0f the right, n0r against such
pr0perty in his grasp.

As examined in the cases ab0ve there has been n0 huge change in segment 39 0f the Transfer
0f Pr0perty Act, 1882. Just the distincti0n that has happened in the m0re extensive arrangement
and understanding 0f the segment. The perspective 0f the adjudicat0rs has n0t been a l0t 0f
dynamic, the translati0n 0f the cases has the pretty much same c0mprehensi0n 0f the app0inted
auth0rities.

CONCLUSION

As we reach the ending part 0f this case study, a c0nclusi0n can be made that the Act is has g0ne
thr0ugh a l0t 0f changes. An amendment act was made in the year 2002, kn0wn as the Transfer
0f Pr0perty (Amendment) Act, 1882. In this act, changes were made t0 keep up with changing
ec0n0my, s0ciety and vari0us 0ther fact0rs. But Secti0n 39 0f this act did n0t have any
significant change whats0ever, the 0nly highlighting part that can be p0inted 0ut is the wider and
br0ader interpretati0n as well as the understanding 0f this secti0n.

BIBILOGRAPHY:

BOOKS

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 • Dr. Avtar Singh & Dr. Harpreet Kaur Textbook on The Transfer of Property Act 6th
Edition , 1 January 2019
• R.K Sinha, THE TRANSFER OF PROPERTY ACT ,CENTRAL LAW AGENCY, 1
January 2019
• Vepa P. Sarathi, Law of Transfer of Property,1979
• Mulla, The Transfer of Property Act, 1, 13th Edition, 2018

ARTICLES

• Nabarun Chandra Ray, Section 39 of Transfer of Property Act, 1882, December 23,
2014

ONLINE RESOURCES

• SCC ONLINE
• HEIN ONLINE
• MANUPATRA

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