ASSIGNMENT

TOPIC: - CONDITION RESTRAINING ALIENATION:

Submitted By

MOHAMMAD ZIYA ANSARI

BALLB (HONS)
SEMESTER-VII
ENROLLMENT NO- GI- 6492
FACULTY NO- 17BALLB- 72
PROJECT

SUBJECT- TRANSFER OF PROPERTY

Submitted To

Dr TABASSUM CHOUDHARY MAM

Professor, Faculty of Law

Aligarh Muslim University

ALIGARH-202002 (INDIA)

2019-20
 ACKNOWLEDGEMENT

I WOULD LIKE TO EXPRESS A DEEP SENSE OF

THANKS & GRATITUDE TO MY PROJECT GUDIE Dr TABASSUM

CHOUDHARY MAM FOR GUIDING ME IMMENSELY

THROUGH THE COURSE OF THE PROJECT.

I ALSO THANKS TO MY SENIORS FOR THEIR MOTIVATION & SUPPORT. I

MUST THANKS TO MY CLASSMATES FOR THEIR TIMELY HELP & SUPPORT
FOR COMPLETION OF THIS PROJECT.

LAST BUT NOT THE LEAST, I WOULD LIKE TO THANKS TO ALL THOSE
WHO HELPED ME DIRECTLY OR INDIRECTLY TOWARDS THE
COMPLETION OF THIS PROJECT.

THANKING YOU

MOHAMMAD ZIYA ANSARI

BALLB-4th Year GI-6492

17BALLB-72
 SYNOPSIS

I-INTRODUCTION

II-DEFINITION OF SECTION 10 OF TPA.

III- WHAT IS ALIENATION.

IV- CAN ALIENATION OF PROPERTY BE RESTRAINED?

V- TYPES OF RESTRAINT.

VI- EXCEPTIONS OF RESTRAINT.

VII- DIFFRENCE BETWEEN SETION 10 AND SECTION 11 OF

TPA.

VIII-CONCLUSION.

IX-BIBLIOGRAPHY.
I-INTRODUCTION: -

The right to ownership of property includes some applied rights like the right to have title over
the property, right to the enjoyment of the property, and the right to the alienation of it keeping
in mind the provisions of law. Austin has defined ownership as the right to indefinite uses,
unlimited duration, and unrestricted disposition of the property. Fredrick Pollock has defined
ownership as a complete allowance of power of usage and disposal.1

The Transfer of the Property Act, 1882 provides the laws regarding the transfer of property in
India. It also provides the conditions under which transfer needs to be carried out and when the
transfer of property is completed. The Transfer of Property Act, 1882 is an Act laying down
the rules and regulations regarding the transfer of property among persons in India. It explains
how a transfer of property is completed and the conditions under which transfer may be carried
out. An understanding of the basic terms of this Act along with exploring alienation and its
history would be important in understanding the conditions and exceptions involved in the
restraint of alienation.2

II-DEFINITION OF SECTION-10 OF TPA: -

Section 10, condition restraining alienation3 — “Where property is transferred subject to a

condition or limitation absolutely restraining the transferee or any person claiming under him
from parting with or disposing of his interest in the property, the condition of limitation is void.
Except in the case of lease where this condition is for the benefit of the lessor or those claiming
under him: provided that property may be transferred to or for the benefit of woman (not being
a Hindu, Mohammedan or Buddhist) so that she shall not have p transfer or charge the same
for her beneficial interest therein”.

This is based on the general rule of jurisprudence “alienatio rei prae fertur juri
accrescendi”4 that is to say that alienation is favoured by law rather than accumulation. This is
general economic principal that there should be free circulation and disposition of property. An
absolute restart is repugnant to the nature of the estate and is an exception to the very essence
of the grant.

1-Shekhar Prashoon, Restraint on Alienation under TPA, 1882, indianlegalsolution.com, visited

on-12:35pm,5oct,2020.
2- Subodh Asthana, Conditions restraining Alienation under the Transfer of Property Act,
1882, https://blog.ipleaders.in/alienation-restraint/, visited on- 1:05pm,5oct,2020.
3- Mayank Shekhar, Restraint on transfer-sec 10, https://www.legalbites.in/restraints-transfer-
section-10/, visited on-1:25pm, 5oct,2020.
4-ibid.
This section lays down that where property is transferred subject to a condition absolutely
restraining the transferee from parting with his interest in the property, the condition is void.
Thus, if A transfers his property to B with a condition that B shall never sell it, or shall sell it
only to a particular person, the condition is void, and B any sell or not as he pleases. Here the
sections say that only the condition (restraining alienation) is void and not the transfer itself.

In Rosher v. Rosher,5 a person A made a gift of house to B with a condition that if B sold
during the life-time of A’s wife, she should have an option to purchase it for Its. 10,000. The
value of the house was Rs. 10,00,000. This was held to be a effect an absolute restraint and
void.

When a property is transferred absolutely it must be transferred with all its legal incidents.
Section 8 of the set also provides that unless different intention is expressed (or implied), a
transfer of property passes forthwith to the transferee all the interest which the transferor is
then capable of passing in the property and in the legal incidents thereof.

III-WHAT IS ALIENATION: -

Alienation means transferring of property. This transfer of property can be through gifts, sales
and mortgages. Under Hindu Law, no person of the Joint Hindu family, not even the Karta, has
the full power to alienate the joint family property or his own interest in the joint family
property without the consent of all coparceners. In the case of separate property, a Hindu can
alienate that property whether it comes under Dayabhaga or Mitakshara school. This power is
absolute.6

Earlier, under the classical law, the father or the Karta had the power to alienate the whole joint
family property without the consent of the other coparceners, and that is why there have been
certain conditions added for the situation where a Karta or father can do so. Alienation is
defined as a voluntary and complete transfer of title of property from one person to the other.
The right to alienation is considered an essential part of ownership. A person having ownership
of the property has a right to sell it for an amount of consideration or give it for free as a gift
or for charitable purposes. Even the property can be put on lease or mortgages.7

In the earlier days, the Karta had the absolute right to alienate the property without due
permission of coparceners under Hindu Law. But with the judicial and legislative
developments, now even the Karta does have the right to alienate the property or even his part
without the approval of all the coparceners. If it is separate property, absolute power has been
given in Mitakshara and Dayabhaga schools to alienate his property.8

5- (1884) 26 Ch D 801.
6-Supra note-2.
7-ibid.
8-Supra note-1.
IV-CAN ALIENATION OF PROPERTY BE RESTRAINED?
Section 10 to 18 of the Transfer of Property Act, 1882 state the rules for alienation of property-

• Section 10 lays down that where the transferee is absolutely restrained from
transferring his interest in his property to another person because of a condition
which came along when the property was transferred to the transferee, then this
condition will be made void. The transfer, from the transferor to the transferee would
remain valid.
• For example, A transfers some property to B as a gift but with the condition that
while A is alive, B must not transfer the property to any other person. This condition
will be held void as it absolutely restrains B from transferring his interest in the
property to another person.

This is commonly known as the ‘rule against alienability’9. The Transfer of Property Act is
based on the principle that there can be a free transfer of property and has been specifically
made with regard to free transfer. If conditions restraining transfer are imposed, then the free
transfer would be restricted and there would be no use for the Transfer of Property Act.

However, only conditions mandating ‘absolute restriction’10 is void. There are conditions
which call for partial restraint to be observed with regard to the transfer of property. If we are
to determine whether a condition is absolute or partial, then one must look at the substance of
the condition, and not merely the words.

V- TYPES OF RESTRAINT11: -

a-Absolute Restraint: It is a type of restraint in which the right of alienation of transferee is

completely taken away. He has no right to transfer the property even being the owner of the
property. As provided under this section, these types of restraints are considered void. To fall
under this particular category, the property must have been transferred by the transferee subject
to the condition of absolute restraint.

In the case of Renand v. Tourangeaon12, a condition restraining alienation for a time of twenty
years was considered as an absolute restraint and hence void.

b-Partial Restraint: It is a condition in which the right of the transferee to alienate a property
is not completely taken away, but it is taken away to a partial extent. There is no as such
provision related to partial restraints. It is valid in the eyes of law.

9-Supra note-2.
10-ibid.
11-Spra note-1.
12- (1867) LR 2 PC 4.
In the case of Zoroastrian Co-operative Housing Society Ltd v. District Registrar Co-operative
Societies, bye-laws for the society had conditions that only Parsis could be the member of the
society and also, no member could alienate his property to non-Parsis. The Apex Court did
consider the same as absolute restraint and it was considered valid.
In the case of Mata Parsad vs Nageshar Sahai13, a dispute related to succession arose between
widow and nephew. A compromise was made in which the title of the property was given to
the nephew and possession of the property was given to the widow. There was a condition that
the nephew could not alienate the property before the death of the widow. The condition was
held as valid.

VI- EXCEPTIONS OF RESTRAINT14: -

Section10 provides two conditions against the ‘rule against alienability’. Firstly, In the
condition of the lease when the condition is for the profit of lessor or the ones claiming under
him. Secondly, transfer for the benefit of a woman who is not a Hindu, Muhammadan, or
Buddhist so that she does not have the power to transfer of changing her interest during her
marriage.

a-Lease: A lease is a condition in which the ownership or title of the property lies with the
lessor and only the right of enjoyment is transferred to the lessee. In the case of Raja Jagat
Ranvir v Bagri Den15, it was held that a condition that the lessee will not sublease his property
or will not assign his interest was considered as valid. In the case of Rama Rao v Thimappa16,
a condition in which the lessee had to return the property when the lessor needed to sell the
property was considered as valid.

b-Married Women: The essentials to fall under this exception are that women should be
married and she must not be a Hindu, Muhammadan or Buddhist. The exception is established
from ‘doctrine of coverture’, where the women were given the right to enjoy the property
without the power to alienate it.

13- (1927) 47 ALL 484.

14-Supra note-1.
15- AIR 1973, ALL 1
16- AIR 1925, Mad 732.
VII-DIFFRENCE BETWEEN SETION 10 AND SECTION 11 OF
TPA: -

Section 11 talks about restriction repugnant to interest created. The difference between
Section 10 and Section 11 is that the former deals with a case of an absolute prohibition
against alienation of an interest created by a transfer and the latter deals with the
absolute transfer of an interest followed by a restriction on its free enjoyment. That is,
under Section 10, whatever interest was conveyed, large or small, limited or unlimited,
such interest cannot be made absolutely inalienable by the transferee. Under Section 11,
when once an interest has been created absolutely in favour of a person, no fetters can
be imposed on its full and free enjoyment. Where, however, the interest created is itself
limited, its enjoyment must also be limited; for example, when a widow’s interest under
Hindu Law is granted to a woman, a direction that she should enjoy only the usufruct
without either encumbering the corpus or committing acts of waste would be valid. But
a condition in a deed depriving a co-owner of his or her claim to partition in respect of
the common property would be bad, because, the right to partition is an essential
ingredient of co-ownership17.

VIII-CONCLUSION: -
Section 10 lays down that where property is transferred subject to a condition absolutely

restraining the transferee from parting with his interest in the property, the condition is

void. The principle underlying this section is that a right of transfer is incidental to, and

inseparable from, the ownership of the property. The rule that a condition of absolute

restraint is void, is founded also on the principle of public policy allowing free circulation

and disposition of property. It is only a condition which absolutely restrains the transferee

from disposing of the interest that is rendered void. A condition imposing partial restraint

may be valid. The test is whether the condition takes away the whole power of alienation

substantially; it is a question of substance and not of mere form. The section provides two

exceptions; one in case of married women and other in favour of lessor. Moreover, every

citizen has a right, under Article 300A of the Constitution of India, to property and such a

17- Pratik Purswani, ‘RESTRAINS ON ALIENATION OF PROPERTY UNDER SECTION 10 OF TRANSFER OF

PROPERTY ACT’, https://www.academia.edu, visited on – 7:20pm, 5oct,2020.

right is not to be deprived except in accordance with law. Even under Article 19 of the

Constitution of India the citizen has a fundamental right to reside and settle down in any

part of the Indian Territory. If there is a law made by the appropriate legislature, the same

should be examined from the stand point of whether it is reasonable restriction or otherwise.

Thus, considering the importance of property and assets in one’s life today, it is important

that there is free disposition and circulation of property with no absolute restriction. In some

cases, partial restrain is permissible depending on facts and circumstances of case keeping

in mind the principles of Justice, Equity and Good Conscience.

IX-BIBLIOGRAPHY: -

a- Mayank Shekhar, Restraint on transfer-sec 10, https://www.legalbites.in/restraints-

transfer-section-10/

b- Pratik Purswani, ‘RESTRAINS ON ALIENATION OF PROPERTY UNDER SECTION 10 OF TRANSFER

OF PROPERTY ACT’, https://www.academia.edu

c- Shekhar Prashoon, Restraint on Alienation under TPA, 1882, indianlegalsolution.com

d- Subodh Asthana, Conditions restraining Alienation under the Transfer of Property

Act, 1882, https://blog.ipleaders.in/alienation-restraint/,