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Affect of order of Charge of maintenance of wife

On the property of the husband

The court has ordered and created charge over the land of the husband. The charge is shown in the ROR.

Charge created as per section 100 of the Transfer of property act

Section 100 of the Transfer of property act is as under.

Section 100 Charges.-Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions herein before contained 3* [which apply to a simple mortgage shall, so far as may be, apply to such charge]. Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, 4*[and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge].

When charge created over the certain land, the land will subjected to charge and during the life of the person on whose favour the maintenance is granted, the owner of the land, his successors or purchaser or anybody coming in possession of the land subjected to charge is liable to pay the amount of maintenance and in case the amount is not paid the land will be attached and sold. The person in whose hand the land will be liable to pay or land will be sold.

There is no direct authority on the point. But the following judgments are indicative of the charge and its effect.

a. In the judgment reported in AIR Supreme Court 1979 page No.993 Bai Vijia Vs Thakorbhai Chelabhai the Hon’ble Supreme Court referred to the earlier judgment of Fazal Ali who held that if the land is sold the purchaser is legally bound to provide to her maintenance. It means that the land can be sold. Further the court referred to judgement of Bhagwati J wherein he had held that the when charge created on the property the same is enforceable against the joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. It also means that the land if sold the purchaser is liable to pay maintenance amount.

The purchaser is saddled with the responsibility of paying the maintenance or else his purchased land which is charged will be sold in execution of the decree.

b. In the judgement reported in ILR Kar 1985 page 470 Karnataka held that property charged is sold in the execution decree by the court and same property is once again can be sold in execution of the decree.

c.  In Judgment reported in Air 1951 Orissa page 306 Orissa High court in Tirthbasi Ghose Vs Buyani Trinayni Dasi. The husband sold out the lands charged. The court held that they are charged so the wife is entitled for recovery of maintenance amount from the said lands.

Conclusion

Charged property can be sold. The purchaser is to be notified or even not notified there is no escape as the same is entered in the ROR and deemed notified. Purchaser is liable to pay the amount of maintenance ordered or if not paid it can be sold and recovered amount and paid to the person who is entitled for maintenance. The land can be sold any number of times. The land is always subjected to the charge.

Rudrawar Narayanreddy

Advocate Sedam


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Category Civil Law, Other Articles by - Rudrawar Narayanreddy 



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