Section 39 of Transfer of Property Act, 1882

By Nabarun Chandra Ray, GNLU 

Editor’s Note: The Transfer of Property Act 1882 a legislation which regulates the transfer of property in India. It contains specific provisions regarding what constitutes a transfer and the conditions attached to it. According to the Act, ‘transfer of property’ means an act by which a person conveys the property to one or more persons, or himself and one or more other persons. The act of transfer may be done in present or for future. The person may include an individual, company or association or body of individuals, and any kind of property may be transferred. includes the transfer of Immovable Property.

INTRODUCTION

The Transfer of Property Act 1882 is an legislation which regulates the transfer of property in India. It contains specific provisions regarding what constitutes a transfer and the conditions attached to it. According to the Act, ‘transfer of property’ means an act by which a person conveys the property to one or more persons, or himself and one or more other persons. The act of transfer may be done in present or for the future. The person may include an individual, company or association or body of individuals, and any kind of property may be transferred. includes the transfer of Immovable Property.

It also 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 and one or more other 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 the transfer of property to or by companies, associations or bodies of individuals.

CASE 1

Radhabai Gopal Joshi vs Gopal Dhondo Joshi [(1943) 45 BOMLR 980; AIR 1914 Bom 59]

FACTS OF THE CASE:

The plaintiff was married to defendant No. 1 about the year 1913 or 1914 and they have been living apart since about the year 1920. The plaintiff was married to defendant No. 1 about the year 1913 or 1914 and they have been living apart since about the year 1920. The plaintiff claimed Rs. 3,300 for arrears of maintenance and future maintenance at Rs. 400 per annum and a charge for the amounts on the property described in the plaint.

At the date of suit, the plaintiff was living in Sangli and her husband was living in Miraj, but the suit was filed in the Court of the First Class Subordinate Judge at Belgaum as the property sought to be charged with the maintenance is situated in Belgaum district. 3. Defendant No. 1 contended that he had sold the whole of that property to his natural father Vinayak Krishna and had no interest left.

ISSUES RAISED:

Under Hindu law, the maintenance of the wife is a legal and imperative duty of the husband independently of his possession of any property. This does not mean that she has no right to be maintained out of her husband’s property, if he possesses any. Her right of maintenance during her husband’s lifetime is in a way higher than after his death, since in the latter case it depends on the property left by her husband.

During her husband’s lifetime the wife cannot claim separate maintenance from him unless she can make out sufficient reasons for not staying with him, whereas after his death she can claim separate maintenance from his co-parceners or heirs if he has left sufficient property, In either case, her claim to be maintained out of his property cannot be denied.

JUDGMENT:

Lokur, J.

1. The sale of the property to defendant No. 2 for the payment of the two mortgage debts cannot be impugned. But in order to defeat the plaintiff’s claim, he purchased nearly twice the property by fraudulently inflating the debts of her husband. The payment of the genuine debts of Rs. 9,518 cannot be questioned and it takes precedence over the plaintiff’s right of maintenance.

But having notice of that right, defendant No. 2 fraudulently purchased the entire property for a consideration, out of which Rs. 7,982 was not needed for the payment of debts, and that amount cannot have priority over the plaintiff’s right of maintenance. Hence, taking an equitable view of the case, we hold that 7,982/17,000 or roughly 16/37 part of the property in suit is liable to bear the burden of the plaintiff’s maintenance. This will be taken into consideration in determining the quantum of the maintenance payable to her.

2. “Thus on the second of the three issues sent down to the trial Court our finding is that the sale to defendant No. 2 is not wholly hollow, that he has acquired a title to the property in suit but subject to the burden of the plaintiff’s right of maintenance on 16/37 share in it and that defendant No. 1 is not the owner of that property. It follows that the finding on the third issue is in the affirmative. We, therefore, set aside the decree of the lower Court and remand the suit for further hearing and disposal according to law. Costs of the appeal will be costs in the suit. The costs of the Government, if any, will be paid by the respondents”.

CASE ANALYSIS:

1. This appeal arises out of a suit filed by the plaintiff against her husband for past and future maintenance and dismissed by the First Class Subordinate Judge at Belgaum on the ground that he had no jurisdiction to try it.

2. But the plaintiff is not satisfied with a bare personal decree against her husband but wants to have a charge on his property. Hence the second issue had to be framed, Her learned advocate Mr. Abhyankar has urged before us two new grounds for holding the property in suit, or at least some of it, liable for her maintenance even though its sale to defendant No. 2 be upheld, one based on Order XXI, Rule 63, of the Code of Civil Procedure, 1908, and the other on Section 39 of the Transfer of Property Act, 1882. He says that as they involve pure questions of law arising out of facts either proved or admitted, they should be considered though they were never urged before. It is true that if these grounds had been urged and upheld.

CASE 2

Jan Mahomed Abdulla Datu Vs. Datu Jaffar [AIR 1914 Bom 59, 1913(15) BOMLR 1044]

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 of money he relinquished his share in the family property. A had a son J at the time. After the release, A used to live separately but his son J and another son horn in 1893 were brought up, educated and married by D and I. In 1902, D conveyed his property to his son I by way of gift. J and his brother sued D and I in 1912 to recover their shares by the partition of the family property alleging that it was joint family property and that the release and the gift were in-operative and not binding on them.

JUDGMENT:

Beaman, J.

1. But in this case, it is quite clear that no question of succession or inheritance arises at all. It may in the future but it has not yet arisen. The most that the plaintiff I can say is that the release might operate to bar his claim when the time shall be ripe for bringing it. But if it does I say he is already time barred in that respect, and can obtain no relief of that limited kind in this suit.

Further, I am very clearly of opinion that he never will be entitled to any relief on the general ground, as a member of a joint undivided Hindu family. For I hold that the release of 1879 was a perfectly good family “arrangement” under which Abdulla and his strips went out of the family (if they were ever in it), and therefore that even were this a case of “succession or inheritance” within the meaning of the authorities, this plaintiff could not succeed.

2. “There can be no question on the evidence, what the understanding of the parties themselves has all along been. I think I have shown in my brief examination of the documentary evidence for the defendants, that it all points one way. It is only consistent with all parties concerned having fully accepted the release as a partition, and having acted upon that understanding for thirty years. That being so I find no ground upon which any part of the plaintiff’s claim could be awarded. I hold that it entirely fails and must now O.C.J. be dismissed with all costs”.

CASE ANALYSIS:

1. In this suit the plaintiffs, who are the sons of Abdulla Datu, a Khoja, pray that it be declared that the properties mentioned in the plaint and the business referred to therein are the properties and business of a joint and undivided family. That the rights of the plaintiffs and the other defendants therein, be ascertained and declared. That the said properties be partitioned between the plaintiffs and the defendants, in accordance with their interests so ascertained and declared.

That for these purposes all necessary directions be given, enquiries made, and accounts taken. That in the meantime a Receiver be appointed. That the defendants 1 and 2 be restrained by an order and injunction of this Court from alienating or otherwise disposing of the same. That it may be declared that the release referred to in the plaint is not valid and binding on the plaintiffs and defendant 3, or in the events that have happened, it is inoperative against the plaintiffs and defendant 3. That the deed of gift dated 8th October 1902, in favour of the defendant 2, is void and of no effect” as against the interests of the plaintiffs and the other members of the said joint family. And other, for the present immaterial, prayers.

2. The written statement of the defendant 1 sets up limitation, want of jurisdiction, and without prejudice to those defences pleads on the merits, adopting the written statement of the defendant 2, that the release was not obtained by fraud etc., but that it was a perfectly fair and valid transaction and has been acted on ever since. The defendant 2 in his written statement says that in or about 1878 the defendant 3 and plaintiff 1, who was then his only son, separated from the joint family. The separation was recorded in the release Ex. 1 in this case. At that time the joint family only owned a small shop wherein groceries and cloth were retailed. In or about 1887 this defendant began to deal in those commodities on his own account. The properties mentioned in Schedule A were all bought after the aforesaid partition, except a small house at Malad which came to the share of the defendant 1 on the partition, while the only other Immovable property of the family was allotted to the first plaintiff on the same. Most of the said properties belong exclusively to this defendant. Denies that since the death of Jaffir and the partition in 1878 the defendant 3 or the plaintiff 1 lived with the first defendant or himself as members of a joint and undivided family or as such acquired any Immovable property or carried on any business. At the date of the said partition, this defendant was a minor, and the family then owned no Immovable property in Bombay.

CASE 3

Mari v. Chinnammal (1884), I.L.R. 8 Mad. 107

FACTS OF THE CASE:

1. The plaintiffs are the stepsons of the stepsister of the deceased and claim to succeed to his estate. Their learned brother Kumaraswami Sastri J. dismissed the suit, holding that plaintiffs are not heirs. The plaintiffs appeal. The only point for decision in the appeal is whether the stepson of a stepsister is an heir under the Hindu Law (according to Mitakshara) as administered in the Madras Presidency.

2. Mr. A Krishnaswami Mari who appeared for the appellant started his case by saying (1) that the stepsister is a sapinda of the propositus and (2) that the plaintiffs are her sapindas. But he did not, and rightly,–follow up these propositions by arguing that the plaintiffs are therefore sapindas of the propositus. Later on, he expressly disclaimed any intention to argue that the plaintiffs are Bandhus (or Bhinnagotra sapindas) of the deceased. On this portion of the case, it is only sufficient to observe, that, in general, sapindaship involves descent from a common ancestor, the only exception to this principle being the case of wives of male sapindas.

JUDGEMENT:

There is manifestly no consanguinity between a man and his step sister’s step son and there is no authority for holding that the latter is a bandhu, There is no class of relations coming in after the lines of gotraja sapindas and bandhus are (exhausted. Colebrooke’s translation of the word “adi” occurring in the Mitakshara “as well as other relations” is a loose translation. It may be more correctly rendered as “the like” are “etc,”. In Lakshmanammal v. Thiruvengada I.L.R. 5 Mad. 241 at 246, 247 the suggestion that Kutti Ammal v. Radhakrishna Iyer (1825) 8 M.H.C.R. 88 was an authority for the existence of a class of heirs who being relations, are neither gotrajas nor bandhus was negative” by Sir Charles Turner C. J. and Kindersley J. The appeal is dismissed with costs, proportionate to respondents’ respective interests.

CASE ANALYSIS:

The arguments of the appellant are two-fold. A step mother is regarded as the equivalent of a mother (Manu IX, 183; see also Vishnu XV, 41 and Vasishtta XVII, 11) for various purposes (a) adoption, (b) sharing with sons in partition, (c) inheritance to a woman’s sfridhan. In the first case, the principle is that adoption is to a father primarily and only in a secondary sense to his wife, so much so that, except in the case of Pratigrihita mata or the wife who is actually associated with the husband in the ceremony of adoption (Annapurni Nachiar v. Forbes (1899) I.L.R. 23 Mad. 1 (P.C.)) all the wives of an adopter are regarded as adoptive mothers. (See Mayne Section 167).

In the second case, the plural is used in the texts-‘wives’ in Mitakshara Ch. 1 Section 2 pl. 9 and mothers (matarau) in Smrithi Chandrika Ch. 4, Section 14 citing Vishnu and inferring that ‘mother’ includes ‘step-mother’. In the third case, the right to succession to a woman’s stridhan of her stepson is based on special texts (e. g.) Viramitrodaya Ch. 5 part. II Section 5. Anyhow it is clear that the argument may be carried too far. In the text of Brihaspati (quoted in Smrithi Chandrika Ch. 9 Section 3 Section 36, Vyavahara Mayukka Ch. 4 S. .10 in Mandlik page 98 and Viramitrodaya Ch. 5 Part. II Section 14) certain other female relatives besides step-mother are regarded as mothers. It is clear that the general principle stated in Manu IX, 183 did not avail the step-mother to become an heir.

COMPARISON

Before the Transfer of Property Act came into existence in 1882, the transfers of immoveable properties in India were governed by the principles of English law and equity. In the absence of any specific statutory provisions, the courts had to fall back upon English law on real properties, sometimes forcing the courts to decide the disputes according to their own notions of justice and fair play, resulting in confused and conflicting case laws. To remedy these confusion and conflicts, a Law Commission was appointed in England to prepare a Code of Substantive Law of Transfer of Properties in India. A draft Bill was prepared by this commission and was sent to India by the Secretary of State for India. The Bill was introduced in the Legislative Council in 1877.

The Bill was then referred to a select Committee and it was also sent to the Local governments for their comments. The Bill was redrafted on many points and referred to as  the “Third Law Commission.”

Section 39 of the Transfer of Property Act, 1882, discusses where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable 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.

As discussed in the cases above there has been any significant change in the section 39 of the Transfer of Property Act, 1882. Only the difference that has occurred is the wider understanding and interpretation of the section. The view point of the judges has not been much dynamic, the interpretation of the cases have the more or less same understanding of the judges.

CONCLUSION

As we reach the ending part of this case study, a conclusion can be made that the Act is has gone through a lot of changes. An amendment act was made in the year 2002, known as the Transfer of Property (Amendment) Act, 1882. In this act, changes were made to keep up with changing economy, society and various other factors. But Section 39 of this act did not have any significant change whatsoever, the only highlighting part that can be pointed out is the wider and broader interpretation as well as the understanding of this section.

Formatted on February 28th, 2019.

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