An evolution of the concept of restriction against alienation under Transfer of Property Act

through various case laws?

In India there was no law as to real property and hence Courts followed either English Law or
regulations or acts wherein some points were covered. Rules of English Law were not acceptable
to Indian Society and the regulations were repealed and hence there was great difficulty and
there were hence conflicting case laws on some points. A Commission consisting of eminent
jurists was appointed in England to prepare a Code of Substantive Law of Transfer. The said
Commission drafted the Transfer of Property Act. The said draft with some modification was
placed before the Council in 1877. The Council thereafter referred it to a Select Committee and
the Select Committee revised the bill and then circulated it for public criticism. On circulation
the bill received very many suggestions and criticisms, and hence again it was revised with the
result that several provisions were added and some of them were omitted with a view to save
local law and usages. This redrafted bill was again referred to a Second Law Commission. The
Second Law Commission which also consisted of eminent jurists prepared the bill and finally the
bill was passed in 1882. It became Act IV of 1882 and came into effect from 1st July, 1882 and
since then it is in force. The object of passing the T.P. Act was two fold. First, to bring the rule
which regulate transmission of the property between living persons into harmony with the rules
effecting the devolution upon the death and thus to furnish the complement of the work
connected in framing the law of intestate and testamentary succession and secondly to complete
the Code of Contract Law so far as relating to immovable property.
Section 10 of the Act describes conditions restraining alienation. It read as: “10. Condition
restraining alienation 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 or limitation is void, except in the case of
a lease where the 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 a woman (not being a Hindu,
Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or
charge the same or her beneficial interest therein.”1
The principle underlying this section is that a right of transfer is incidental to, and inseparable
from, the beneficial ownership of property. An absolute restraint on that power is repugnant to
the nature of the estate, and an exception to the very essence of the grant.2
Ownership of property, be it private, collective, or common comes with certain rights and duties
over the property. Property may be objects, land or real estate, or intellectual property. The
complex juristic concept of Ownership, originating in the Ancient Roman Law denominated
Ownership as Dominium meaning absolute right to a thing and Possession as Possessio implying
only physical control over such thing. Various jurists have defined ownership in different ways
and it is accepted that right of ownership is a complete or supreme right that can be exercised

1
Section 10, Transfer of Property Act.
2
Mulla The Transfer of Property Act, 13th ed MullaDr Poonam Pradhan Saxena. Pg 2 of 11.
over anything. According to Hibbert, ownership involves four rights: Right of using the thing,
excluding others from using it, disposal of the thing and destruction of the thing.3
The section incorporates a rule of justice, equity and goods conscience, and governs transfers to
which the TP Act, 1882 does not apply.4
While tracing back the origin and evolution of the concept of restriction against alienation; we
come across an 1889 case, Metcalfe v Metcalfe5. In this case a testator by his will gave personal
estate to his children as tenants in common. He then gave to trustees real estate and personal
estate on trust to pay the rents and profits to his children as tenants in common during their lives,
with benefit of survivorship. He then gave certain reversions to the trustees on similar trusts. He
then provided that if by act or operation of law any interests given by his will in trust for his
children should be aliened whereby the same should vest in any other person, then his trustees
should apply the interest so aliened to and among the other persons entitled to the same by
survivorship, as in the case of the death of the person so aliening. One of his children was at the
time of his death a bankrupt. Within a year afterwards she became entitled to property which
when sold was sufficient to pay her debts and the costs, but the bankruptcy was not annulled
until more than two years after that. J. Kekewich observed that – “You cannot limit an estate to a
man and his heirs until he shall convey the land to a stranger, because it is of the essence of an
estate in fee that it confers free power of alienation, and it has long been settled that the same
principle is applicable to gifts of personality.”6
In the case of In re Parry and Daggs7, a testator devised real estate to his son and his heirs; and
then declared that in case his said son should die without leaving lawful issue, then and in such
case the estate should go to his son's next heir-at-law, to whom he gave and devised the same
accordingly:- Held, that the contingency of death without leaving issue was not confined to
death in the lifetime of the testator, but referred to death at any time; and that the gift over was
repugnant and void; and that the devisee took an absolute estate in fee simple. This was an
appeal from a decision of Vice-Chancellor Bacon on a question of title submitted to the Court
under the Vendor and Purchaser Act, 1874. The bench consisted of Sir J. Hannen, L.J. Fry, and
L.JJ. Bowen. L.J. fry remarked that – “From the earliest times the courts have always leant
against any device to render an estate inalienable. It is the policy of the law always to make
estates alienable, and it is immaterial by what device it is attempted to prevent an owner from
exercising the power of ownership.”8
Section 10 of the TP Act, 1882 or the Rule against Perpetuities does not apply to
government grants.
The Government Grants Act, 1895, explicitly mentions it in its preamble the purpose and extent
of its enactment. It reads as: “An Act to explain the Transfer of Property Act, 1882, so far as

3
V.D. Mahajan: Jurisprudence & Legal Theory (Fifth Edition) Pg. 288.
4
Ramchandraji Maharaj v Lalji Singh, (1959) ILR 38, LNIND 1958 RAJ 87.
5
Metcalf v. Metcalf, (1889) 43 Ch.D. 633
6
Id.
7
In re Parry and Daggs., (1885) 31 Ch.D. 130.
8
Id.
relates to grants from the [Government] and to remove certain doubts as to the powers of the
[Government] in relation to such grants. Whereas doubts have arisen as to the extent and
operation of the Transfer of Property Act, 1882, and as to the power of the [Government] to
impose limitations and restrictions upon grants and other transfers of land made by it or under
its authority, and it is expedient to remove such doubts”.9
Section 2 of the said Act of 1895 runs as follows:— “Transfer of Property Act, 1882 not
to apply to Government Grants.— Nothing contained in the Trasfer not Property Act,
1882 shall apply or be deemed ever to have applied, to any grant or other transfer of
land or of any interest therein hereto before made or hereafter to be made by or on
behalf of Government to, or in favour of any person whomsoever, but such grant and
transfer shall be construed and take effect if the said Act had not been passed.”10
Section 3 of the said Act of 1895 runs as follows:— “Government grants to take effect
according to their tenor.—All provisions, restrictions, conditions and limitations over
contained in any such grant or transfer, as aforesaid shall be valid and take effect
according to their tenor, any rule of law, statute, or enactment of the legislature to the
contrary notwithstanding…”11
The case which debunks this legal framework is Prabir Kumar Kar v. State of West Bengal &
Ors12. The court laid down in the case that, it is clear from a plain reading of the aforesaid
Sections of the said Act of 1895 that the provisions of the T.P. Act cannot be made applicable to
grant and transfer made by the Government and all prohibitions, restrictions, conditions and
limitations contained in any Government Grant or transfer shall be valid and take effect
according to their tenor. Looking to the preamble of the said Act of 1895 and reading the
Sections 2 and 3 of the said Act of 1895 and the Section 10 of the T.P. Act and from the
discussions made hereinabove there cannot be any doubt in one's mind that any restriction,
prohibition, condition and limitation contained in any Government Grant or transfer shall
continue to be effective so far as Government grants are concerned, inspite of Section 10 of the
T.P. Act which says that where a property is transferred subject to a condition or limitation
absolutely restraining the tranferor or any person claiming under him from parting with or
disposing of his interest in the property the condition or limitation is void subject to some
exception. In the courts view, Section 2 prohibits only the application of the T.P. Act so far
Government Grants and/or transfers are concerned and Section 3 of the said Act of 1895 only
says that all prohibitions, restrictions, conditions and limitations contained in any Government
Grant or transfer shall be valid and take effect according to their tenor, which means that the
Government grant which contains a clause prohibiting and/or restricting the lessee from
transferring the immovable property does not become a void one notwithstanding Section 10 of
the T.P. Act.13

9
The Government Grants Act, 1895.
10
Section 2, The Government Grants Act, 1895.
11
Section 3, The Government Grants Act, 1895.
12
Prabir Kumar Kar v. State of West Bengal & Ors, 1992 SCC OnLine Cal 204 : (1992) 2 CHN 289 : (1992) 2 Cal
LJ 260.
13
Id.
Absolute Restraint and Partial Restraint.
Since alienation of property is the sole prerogative of the owner of the property, he is empowered
to sell it at any point of time, for any consideration, to any person, and for any purpose. There are
certain integral components of the very term “alienation” and include selection purely at the
discretion of the transferor or the transferee and the time or consideration for the transfer. A
restraint on alienation thus would include a condition that dictates to him when to sell it, to sell it
at how much consideration, or how to utilize the consideration; to whom to sell or for what
purpose he should sell. These restraints can appear in the following ways.14
Section 10 relieves a transferee of immovable property from an absolute restraint placed on his
right to deal with the property in his capacity as an owner thereof. As per section 10, a condition
restraining alienation would be void. Section applies to a case where property is transferred
subject to a condition or limitation absolutely restraining the transferee from parting with his
interest in the property. For making such a condition invalid the restraint must be an absolute
restraint. Condition imposing absolute restraint on the right of disposal is a void condition and
has no effect. For example, a person makes a gift of a property to another person (transferee)
with a condition that he will not sell it. This condition imposes an absolute restraint. If the
transferee sells that property, the sale will be valid because conditions imposing absolute
restraint are void.
Absolute:
In the case of In Re Macleay, Sir G. Jessel, M.R., remarked that whether the condition took
away the whole power of alienation substantially, was a question of substance, not of form. 15 He
said, “Now, you may restrict alienation in many ways. You may restrict alienation by prohibiting
a particular class of alienation, or you may restrict alienation by prohibiting it to a particular
class of individuals, or you may restrict alienation by restricting it to a particular time. In all
those ways you may limit it, and it appears to me that in two ways, at all events, this condition is
limited.”16 First, it is limited as to the mode of alienation, because the only prohibition is against
selling. There are various modes of alienation besides sale; a person may lease, or he may
mortgage, or he may settle; therefore it is a mere limited restriction on alienation in that way.
Then, again, it is limited as regards class; he is never to sell it out of the family, but he may sell it
to any one member of the family. He had referred to Coke upon Littleton and said that, “that this
is strictly a limited restraint on alienation, and unless Coke upon Littleton has been overruled or
is not good law, this is a good condition.”17 Similarly in Rosher v. Rosher18, a condition not to
sell during the lifetime of the transferee was held to be void.
In Mudara v. Muthu Hengsu, the high court of Judicature at Madras, in 1934, held that A
provision in a partition deed prohibiting alienation of the property allotted absolutely to each

14
Mulla The Transfer of Property Act, 13th ed MullaDr Poonam Pradhan Saxena. Pg 3 of 11.
15
In re Macleay., (1875) L.R. 20 Eq. 186.
16
Id.
17
Id.
18
Rosher v. Rosher, [1884] 26 ChD 81.
coparcener without the consent of the other sharers is invalid as an absolute restraint. 19 In a
recent judgement of S. Ramasamy v. Raman20, the Madras high court, in 2000, had referred to
the Mudara case. The issue at hand was that under the terms of the settlement deed, the settlees
are to enjoy the properties set out in the schedule during their life time, without powers of
alienation and after their life time their male issue have to take the properties. The settlement
deed also directs the settless to discharge certain liabilities of the settlor. The question raised on
behalf of the appellant in this Second Appeal was whether as per Section 10 of the Transfer of
Property Act, 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 or limitation is void? It was held that life interest could be
alienated, but that would be subject to the right of the ultimate owner, who would be entitled to
possession after the life time of the life interest holder.
Partial:
Section 10 has only provided for absolute restraints. It is silent about the partial restraints. Where
the restraint does not take away the power of alienation absolutely but only restricts it to certain
extent, it is a partial restraint. Partial restraint is valid and enforceable. While an absolute
restraint is void, a partial restraint may not be. For instance, a partial restraint that restricts
transfers only to a class of persons is not invalid. However, if the transfer is restricted to being
allowed only to specific individuals, then it is an absolute restraint and hence, void.
In the case of Jagan Nailk v. Cheddi Dholr21, it was laid down that in case of partial restraint
Section 10 is not attracted. The privy council in the case of Muhammad Raza v. Abbas Bandi
Bibi,22 held that a condition restraining the transferee from transferring to a stranger, i.e., outside
the family, was not an absolute restriction, and was valid. Cases in which a condition against
alienation to a stranger have been held to be an absolute restraint can no longer be regarded as
good law. In the Privy Council case above referred to, their Lordships said that after the passing
of the TP Act, 1882, a partial restriction upon the power of disposition would not, in the case of a
transfer inter vivos, be regarded as repugnant, and that there was no authority to suggest that a
different principle was applied by the courts in India before that Act. A condition in a deed of
partition that if any coparcener wished to sell his share in a residential house or if his share were
sold in any other way, the other coparcener would be entitled to buy it was held to be valid. An
agreement of this sort is proper and is enforceable against the promisor’s representatives, and is
not hit by section 14. This was reiterated in the case of Aulad Ali v. Ali Athar23.
In the case of K Naina Mohamed v. A M Vasudevan Chettiar,24 respondent and her son inherit
and enjoy house properties during lifetime. After death, it was decided that, property shall go to
male heirs. Property be sale to other sharers only and not to strangers. The issue was whether,
respondent acquire independent right to sell property to strangers. It was held, Appellant did not
19
Mudara v. Muthu Hengsu, AIR 1935 Mad 33.
20
S. Ramasamy v. Raman, 2000 SCC OnLine Mad 488 : (2003) 1 LW 468.
21
Jagan Nailk v. Cheddi Dholr, AIR 1973 All 307.
22
Muhammad Raza v. Abbas Bandi Bibi, 59 IA 236.
23
Aulad Ali v. Ali Athar, (1927) ILR 49 All 527.
24
K Naina Mohamed v. A M Vasudevan Chettiar, (2010) 7 SCC 603.
produce copy of comprise decree before Trial Court. It was not possible to go without that,
Respondent acquired independent right to sell suit property and the Appeal dismissed. Thus a
restriction on alienation of property to strangers aimed at ensuring that property bequeathed did
not go into hands of third party is valid and does not violate the rule of perpetuity.25
In the famous case of Zoroastrian Co-operative Housing Society Ltd. v. District Registrar, Co-
operative Societies (Urban),26 a society with the object of constructing houses for residential
purposes had a bye law which stated that only Parsis can be members of the society. There was
also a condition that no member could alienate the house to non-parsis. The Supreme Court held
that when a person accepts the membership of a co-operative society by submitting himself to its
by laws and places on himself a qualified restriction on his right to transfer property by
stipulating that same would be transferred with prior consent of society to a person qualified to
be a member of the society it could not be held to be an absolute restraint on alienation offending
Section 10 of the Transfer of Property Act.
It is very important to decipher what amounts to absolute restrain and what amount to partial
restrain. In order to determine whether a restriction is absolute or partial, one must look at the
substance of the restraint and not its mere form. Ordinarily, if alienation is restricted to only
family members, the restriction is valid. However, where in addition to that restriction, a price is
also fixed which is far below market value and no condition is imposed on the family members
to purchase, then the restraint is an absolute one and hence, void, although in form, it is a partial
restraint. Even if such a substantially absolute restriction is limited by a time period that is, it
applies for a specific time period only, it remains void.
Restraints with respect to sale for particular purposes or use of Property:
In the case of Bhavani Amma Kanakadevi v. C.S.I., Dakshina Kerala Maha Idavaka 27, the
issue at the courts hand was whether a provision in a sale deed that in the event of failure to
construct a private college in the property sold thereunder, the property shall be reconveyed by
the vendee to the vendor for the same sale consideration is barred under the provisions of
Sections 10 or 11 of Transfer of Property Act? This is the question to be decided in the appeal.
If an absolute estate is created and after the creation of such estate, a condition which brings a
diminution of that absolute estate is imposed on the person in whose favour the absolute estate is
created the said condition being repugnant to the very nature of the estate which was created is
void and unenforceable. The principle is founded on the principle of public policy allowing free
disposition of property. Section 11 of Transfer of property Act embodies principles of universal
application that when the main object of transferor is to make an absolute transfer, an
inconsistent provision therein cannot be given effect to.28

25
Id.
26
Zoroastrian Co-operative Housing Society Ltd. v. District Registrar, Co-operative Societies (Urban), (2005) 5
SCC 632.
27
Bhavani Amma Kanakadevi v. C.S.I., Dakshina Kerala Maha Idavaka, LNIND 2007 KER 622.
28
Id.
A Division Bench of High Court of Allahabad had occasion to consider a similar clause in
Gayasi Ram and Others v. Shahabuddin and Others.29 In that case the sale deed contained a
clause that the vendee shall not transfer the house by mortgage, gift or sell to any one except the
vendor or his heirs and if in contravention of the clause, the property is sold the vendor or his
heir would have a right to get back the house by paying Rs.175/- and if the property is to be sold
in court auction sale, the sale would be invalid. The sale consideration for the house was
Rs.150/-. Relying on decision of the Single Judge of that court in Dal Singh v. Khub Chand30,
Asghari Begam v. Maula Bakhsh31, and Gomti Singh v. Anari Kuar32 the Division Bench held
that the sale deed in question was between strangers and the clause is an absolute restraint on
alienation to anyone except the vendor or his heirs and therefore void in view of Section 10 of
Transfer of Property Act. The Division Bench held: "The condition in restraint of alienation in
the present case is contrary to Section 10 of Transfer of Property Act and therefore void".33
Restriction Against Alienation in Compromise:
A compromise is not a transfer to which this section applies. In the case of Basanowda v
Irgodatti,34 under a compromise between a widow and a reversioner, the widow was held to have
a limited interest such as is referred to in section 6(d) — now section 6(dd)—which she could
not alienate. A compromise operates, therefore, not as a transfer, but as an admission that the
party has no right to alienate. The title so admitted may be a restricted interest which under
section 6 is not transferable.
In the case of Mata Prasad v Nageshar Sahai,35 there was a dispute as to succession between a
widow and a nephew. This was compromised on terms that the widow was to retain possession
for life while the title of the nephew was admitted with a provision restraining him from
alienating during the widow’s lifetime. The Privy Council upheld this as a family settlement,
prudent and reasonable in the circumstances of the case.
Restraints on transferee and transferor:
A restriction directing the owner that the property should be transferred only after obtaining prior
permission or consent would be totally void, but in some cases it can be partial restrain also, in
such cases, depending on facts and circumstances, it may be held valid. It was held in
Mahamudali Majumdar v. Brikondar Nath,36 it was held that transferor himself selling the
property to an outsider, cannot put a condition that binds the latter to sell the property only to
members of transferor’s family.
The section only refers to restraint on alienation by the transferee or those claiming under him. It
has no bearing on cases where on a transfer a restraint is put on alienation by the transferor. This

29
Gayasi Ram and Others v. Shahabuddin and Others, 1935 SCC OnLine All 41: AIR 1935 All 493.
30
Dal Singh v. Khub Chand, AIR 1921 All 97.
31
Asghari Begam v. Maula Bakhsh, AIR 1929 All 381.
32
Gomti Singh v. Anari Kuar AIR 1929 All 492.
33
Supra note 17. Gayasi Ram and Others v. Shahabuddin and Others, 1935 SCC OnLine All 41: AIR 1935 All 493.
34
Basanowda v Irgodatti, (1923) ILR 47 Bom 597.
35
Mata Prasad v Nageshar Sahai, 1931 SCC OnLine Cal 137 : ILR (1932) 59 Cal 636.
36
Mahamudali Majumdar v. Brikondar Nath, AIR 1960 Assam 178.
may occur where the transfer is of a partial interest as in a mortgage. In such cases, it may be a
clog on the equity of redemption.37
Restraint against Alienation in Gift:
In the case of Ramasamy v Wilson Machine Works,38 Tamil Nadu Land Encroachment Act (III
of 1905), Secs.5 to 7 Requirements of a valid notice Petitioners carrying on business in the site
belonging to the Government Petitioners invested considerable money Obtained licence for
running the business Demolition of the shops by the Government by using bulldozer No prior
notice given Stock in trade was thrown in the streets Writ of mandamus by the shop owner
Direction to restore the building and structure that stood prior to demolition sought Action of the
Government held arbitrary, high handed and contrary to the established procedure.
Under section 126 of the TP Act, 1882, a gift may be made on an agreed condition that it may be
revoked on the happening of an event which does not depend upon the will of the donor.
However, the condition contemplated by section 126 which is in a chapter dealing with “gifts”
should not be repugnant to the provisions of sections 10 & 12 which deal with all “transfers of
property by act of parties”. Thus, where a deed of gift provided that the donee or his successor
had no right to transfer the property and that if they did transfer, the same would be invalid and
the donor or his successor would have a right to revoke the gift, the condition was held to be
invalid.39
The last paragraph of the section enacts that the condition of revocation does not affect the rights
of transferees for consideration without notice. This makes it clear that the condition of
revocation operates only as a personal covenant. It does not restrict the interest of the donee, and
is not repugnant to the gift under section 10. It has, therefore, been held that if A makes a gift of
his property to B, with a condition that A should be at liberty to revoke the gift if B transferred
the property without A’s consent, the condition does not contravene the provisions of section 10,
and is valid.40
Exceptions:
Section 10 provides two exceptions to the rule against inalienability. First, Section 10 does not
prohibit conditions or limitations in the case of a lease, which are beneficial to the lessor or those
claiming under him. Second, property may be transferred for the benefit of a woman who is not a
Hindu, a Muslim, or a Buddhist, such that she shall not have the power to transfer the property or
change her interest therein during her marriage.
Lease:
A lease is an exception to the rule against an absolute restraint on alienation. This exception
arises from the very nature of a lease which is a transfer of property for a time, or in perpetuity,
but in which the lessor necessarily retains an interest. Thus, a condition in a lease that the lessee

37
Mulla The Transfer of Property Act, 13th ed MullaDr Poonam Pradhan Saxena. Pg 6 of 11.
38
Ramasamy v Wilson Machine Works, AIR 1994 Mad 222.
39
Id.
40
Mulla The Transfer of Property Act, 13th ed MullaDr Poonam Pradhan Saxena. Pg 5 of 11.
shall not sublet or assign is valid— section 108(j) read with the words “in the absence of a
contract to the contrary.” It is also immaterial that the lease is a permanent lease. This was laid
down in the case of Abhiram v Shyama.41
In an nother case in Udipi Seshagiri v. Seshamma,42 it was laid that the words in this section
“when the condition is for the benefit of the lessor or those claiming under him” seem to be
merely explanatory of the reason for the exception. They have been construed to mean that the
restriction is invalid, unless accompanied with a right of re-entry.
Effect of Involuntary Alienation on Conditions Against Alienation in Leases:
An involuntary alienation does not constitute a breach of a condition against alienation in
a lease. An assignment by the operation of law, such as a sale in execution, or a sale of
the property of a company by an official liquidator, or a sale by the official assignee, is
not a breach of the condition.43 In the case of Golak Nath v. Mathura Nath44, the court
remarked “We take it to be clear law in India, as in England, that a general restriction
on assignment does not apply to an assignment by operation of law taking effect in
invitum as a sale under an execution.”

Hindu and Mahomedan Law:

The prohibition of a condition in absolute restraint on alienation enacted in this section conforms
to Hindu and Mahomedan law. Under Hindu law, such a condition either in a gift inter vivos or
in a will, is void. It was laid down by the Supreme Court in the case of Jagtar Singh v. State of
Punjab,45 where the person gets the property under a Will, with absolute powers to enjoy it, any
condition restraining alienation would be void. Even before the amending Act which makes the
section directly applicable to Hindus, many cases affecting Hindus were decided with reference
to this section.46
In Mahomedan law also, a condition in restraint of alienation attached to a gift is void. It was laid
down in the case of Babu Lal v Ghansham Das.47 However, when a Mahomedan widow was
restrained from alienating to a stranger as the result of a compromise, the Chief Court of Oudh
applied the rule that a compromise is in no sense an alienation, and held that the restraint was
valid. This happened in the case of Abbas Bandi Bibi v Saiyed Mohammad Raza.48

Married Women:
The second exception provided under Section 10 relates to a non – Hindu, Mohammedan or
Buddhist married women. The section provides that property may be either transferred to or for
the benefit of such women, with a condition that she would not have power during her marriage
to transfer or even charge the same or her beneficial interest therein. Thus, the two main
conditions are that the woman should be married and she should not be Hindu, Mohammedan or
Buddhist. This exception is based on the doctrine of coverture that operated in England in the
nineteenth century. There, women could be given property for their enjoyment without the right
to alienate the property during her marriage. The rule protected women from being forced to

41
Abhiram v Shyama, (1909) ILR 36 Cal 1003.
42
Udipi Seshagiri v Seshamma, (1920) ILR 43 Mad 503.
43
Mulla The Transfer of Property Act, 13th ed MullaDr Poonam Pradhan Saxena. Pg 7 of 11.
44
Golak Nath v. Mathura Nath, (1893) ILR 20 Cal 273, p 278.
45
Jagtar Singh v. State of Punjab, LNIND 2012 PNH 41.
46
Mulla The Transfer of Property Act, 13th ed MullaDr Poonam Pradhan Saxena. Pg 7 of 11.
47
Babu Lal v Ghansham Das, (1922) ILR 44 All 633.
48
Abbas Bandi Bibi v Saiyed Mohammad Raza, (1929) ILR 4 Luck 452.
alienate their property in favour of their husbands. However, despite the abolition of the doctrine
of coverture in England, this exception continues to remain on the statute books in India. Under
English Common Law, a woman’s property, on marriage, automatically became the property of
her husband. This rule was expressly abolished in India under Section 4 of the Indian Succession
Act, 1865.
In 1885, in the case of Hippolite v. Stuart49, the High Court of Calcutta held that these provisions
enabled a creditor to enforce his claim also against property which a married woman is restrained
from alienating. However the Madras High Court in Re Mantel and Mantel,50 and Goudoin v.
Venkatesa,51 held that full meaning can be given to section 8 of the Married Women’s Property
Act without imputing to the legislature an intention to ignore conditions in restraint of alienation
distinctly recognized in a later Act. Statutory effect has been given to the Madras view by the
amended proviso to section 8 of the Married Women’s Property Act, substituted by section 2 of
the Transfer of Property (Amendment) Supplement Act, 1929. This expressly provides that
decrees passed against a married woman under section 8 cannot be executed by the attachment or
sale of property she is restrained from alienating during marriage.52

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 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
ones 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.

49
Hippolite v Stuart, (1885) ILR 12 Cal 522.
50
Re Mantel and Mantel, (1885) ILR 18 Mad 19.
51
Goudoin v Venkatesa, (1907) ILR 30 Mad 378.
52
Mulla The Transfer of Property Act, 13th ed MullaDr Poonam Pradhan Saxena. Pg 7 of 11.