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Judgement Tpa
Judgement Tpa
Even if the learned Counsel is correct in their assertion that defendant No.
1 has breached the covenant, this does not help the plaintiff's case
because the condition would be null and void under Section 10 of the
Transfer of Property Act. "In order to see whether there is absolute
restraint or not, one must examine the effect of all the circumstances and
find if alienation is forbidden for all practical purposes," the Allahabad
High Court ruled in Gayashi Ram. The mere potential of alienation does
not automatically exempt a case from Section 10's prohibition." With
respect, I concur with the erudite Judges' observations. On all fours, the
ratio of this ruling applies to the situation before me. The District Court's
decision that the conditions inserted in the plaintiff's sale deed in favour
of defendant No. 1 are void under Section 10 ibid. must be upheld. Even
if the condition is deemed to be proven, a breach of the condition is
irrelevant.