Transfer of Property Act, 1882 | Rights affecting immovable property

Section 39 of the Transfer of Property Act, 1882 - Transfer Where a Third Person Is Entitled to Maintenance

Section 39 explains when a right to maintenance, advancement or marriage provision payable from the profits of immovable property remains enforceable after that property is transferred. The outcome depends on whether the transferee had notice of the right and whether the transfer was for consideration or gratuitous.

Section 39 - Full statutory text

39. 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.

Meaning of Section 39

The section concerns a third person who is entitled to receive maintenance or provision for advancement or marriage from the profits of particular immovable property. When the property is transferred, the entitlement may remain enforceable against the new owner in the circumstances stated in the Act.

Maintenance generally refers to legally recognized support for a person entitled to it. A provision for advancement or marriage is a benefit intended for the relevant purpose and payable from the profits of the property. The section does not itself create every such entitlement: the underlying right must first be established under the applicable law or instrument.

When can the right be enforced after transfer?

1. Transferee with notice

If the transferee has notice of the third person's right, Section 39 permits enforcement against the transferee. Notice is important because the purchaser cannot necessarily defeat an existing entitlement merely by acquiring title to the property while aware of that entitlement.

2. Gratuitous transfer

Where the property is transferred without consideration, such as by gift, the right may be enforced against the transferee even where notice has not been established. The statutory exception for a purchaser for value without notice does not protect a gratuitous transferee.

3. Purchaser for consideration without notice

A transferee who acquires the property for consideration and without notice is protected by the express wording of Section 39: the third person's right is not enforceable against that transferee or against the property in that transferee's hands under this section.

4. Meaning of notice

Section 3 of the Transfer of Property Act defines notice. It includes actual knowledge and, in specified circumstances, knowledge that a person would have obtained but for wilful abstention from an enquiry or search that ought to have been made, or gross negligence. Whether notice exists depends on the facts, documents, possession, records and relevant legal requirements.

Practical illustrations

Sale with notice: A person's enforceable maintenance entitlement is payable from the profits of land. The owner sells the land to a buyer who knows of that right. Section 39 allows the right to be enforced against that buyer, subject to proof of the underlying entitlement.

Gift of property: The owner gifts the land to a relative. Because the transfer is gratuitous, the recipient cannot invoke the protection expressly given to a transferee for consideration without notice.

Purchase without notice: A buyer pays consideration and takes the property without notice of the maintenance entitlement. Section 39 protects the buyer and the property in the buyer's hands from enforcement of that right under the section.

These are explanatory examples, not statutory illustrations or judicial findings.

Section 3, Transfer of Property Act, 1882: Defines terms including notice, which is central to determining whether a purchaser is protected under Section 39.

Section 40, Transfer of Property Act, 1882: Addresses certain obligations annexed to ownership of immovable property that do not amount to an interest in the property and their enforceability against transferees. Section 39 deals specifically with the described maintenance, advancement and marriage entitlements.

Hindu Adoptions and Maintenance Act, 1956: Where applicable, Sections 18 to 22 address specified maintenance entitlements and Section 27 concerns when a dependant's claim for maintenance is a charge on the deceased's estate. These provisions may be relevant to establishing the underlying right; they should not be treated as replacing Section 39's notice and consideration rules.

In a particular case, the source and enforceability of the maintenance right, any decree or charge, the transfer instrument, and the applicable personal law must be examined separately.

Official legal sources

Consult India Code (Government of India) for the authoritative published versions of the Transfer of Property Act, 1882 (Sections 3, 39 and 40) and the Hindu Adoptions and Maintenance Act, 1956 (where applicable). Relevant state amendments and the law in force on the date of the transaction should also be verified.

This article is a general explanation of the statutory provision; application to a dispute depends on the underlying right and evidence of notice and consideration.