Issue

The issue raised in the above case was whether the condition put in the sale deed executed by the
plaintiff in favour of the defendants is hit by section 10 of transfer of property act or not?

The above issue was answered or was concluded by the Allahabad high court in Gayashi ram vs
Shahbuddin. In that case, the sale deed included a clause providing that the vendee would
not transfer the subject matter of sale, namely a house by mortgage, gift or sale to any one
excepting the vendor or his heirs, and that if the house was transferred in contravention of
that term the vendor or his heirs would have a right to get back the house.

The Allahabad high court said in order to check whether there is absolute restraint or not,
one has to examine the effect of all the conditions and find whether for all practical
purposes alienation is prohibited. The mere fact that there may be remote contingency in
which there may be a possibility of an alienation taking place would not necessarily take the
case out of the prohibition contained in section 10 thus such restraint is an absolute one and
it is invalid under section 10 of the transfer of property act.