Urmila has right to maintenance out of an estate, a part of which has been transferred by way of gift to Kavita. What remedy, if any, Urmila has?

Question: Urmila has right to maintenance out of an estate, a part of which has been transferred by way of gift to Kavita. What remedy, if any, Urmila has? [Punj JS 2006]

Find the answer to the mains question of Property Law only on Legal Bites. [Urmila has right to maintenance out of an estate, a part of which has been transferred by way of gift to Kavita. What remedy, if any, Urmila has?]

Answer

Section 39 in the Transfer of Property Act, 1882 lays down a provision regarding transfer where the third person is entitled to maintenance. The provision states:

“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.”

Under Section 39 of The Transfer of Property Act, 1882, if a person (in this case, Urmila) has a right to receive maintenance or any provision for advancement or marriage from the profits of immovable property, and a part of that property has been transferred by way of gift to another person (in this case, Kavita), then Urmila's right to maintenance or provision can be enforced against Kavita if:

(A) Kavita had notice of Urmila's right to maintenance or provision.

Or

(B) The transfer to Kavita is gratuitous (meaning it was a gift or without consideration).

In these cases, Urmila can seek enforcement of her right to maintenance or provision from Kavita. However, if the transfer to Kavita was for consideration (meaning Kavita paid something in return for the property) and Kavita had no notice of Urmila's rights, then Urmila's rights cannot be enforced against Kavita.

In the present case at hand, transfer to Kavita was by way of gift i.e., without any consideration, thus Urmila can enforce her right against the property that has been transferred to Kavita.