RESTRAINT ON ALIENATIONS (PROPERTY LAW)

Submitted in partial fulfillment of the requirement for the

Degree of
BA LLB

By – PRAGYA SHARMA
Enrollment number:
35725503819

Submitted To – MS. MANISHA MADHAV

Department of Law
JIMS Engineering Management Technical Campus, Greater
Noida

(affiliated to Guru Gobind Singh Indraprastha University

Dwarka
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.

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.

What is Alienation?
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.

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.

The rules regarding the alienation of property are provided under Sections 10 to 18 of the
Transfer of Property Act, 1882. These sections put various restrictions on alienation.   

Conditions Restraining Alienation

Section 10 of the Act provides: “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
women (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.”
 This is generally refereed as ‘rule against alienability’. The Act is based on principle of free
transfer of property and free transfer will be prohibited if conditions restraining further
transfer are imposed. This can be better understood with the help of an illustration. Suppose,
A while selling a property to B and imposes a condition that he cannot sell the property
further, the conditions restraining alienation is void.

Types of Restraint
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. Tourangeaon[1], a condition restraining alienation for a time of

twenty years was considered as an absolute restraint and hence void.

In the case of Rosher v. Rosher[2], a person ‘X’ gifted a house to another person ‘Y’ having a
value of Fifteen Thousand pounds. A condition was made that if ‘Y’ sells the house during
the lifetime of ‘X’s’ wife, she could have an option to purchase the same for Three Thousand
pounds. The condition was considered as complete restraint and hence void.    
In the case of Md. Raza & Ors. v. Abbas Bandi Bibi[3], a condition in which a transfer of
property was restricted to a particular person for a certain period of time was considered as
void.

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.
In the case of Zoroastrian Co-operative Housing Society Ltd v. District Registrar Co-
operative Societies[4], 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 Sahai[5], 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.

Exceptions of Restraint
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.

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 Den, 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 Thimappa, a
condition in which the lessee had to return the property when the lessor needed to sell the
property was considered as valid.

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.  
Repugnant Conditions
Section 11 of the Act details the conditions which are inconsistent with the nature of the
interest transferred. These are referred to as repugnant conditions. This section is a corollary
to Section 10. Section 11 prohibits the transfer in which the transferee is restricted to use the
property only in any particular manner and if the absolute interest of the transferor is passed
on. Such kind of conditions is void and the transferee is entitled to receive the property as if
no such condition existed.

In the case of Smt. Manjusha Devi v. Suinit Chandra Mukherejee[8], it was held that if any
limitation or the condition is imposed on the deed of conveyance, it will be considered
objectionable as under Section 11 of the Act.

The exception to this section is any condition imposed restraining the enjoyment of land by
the transferor for benefit of his/ her adjoining land.

Insolvency Condition
Section 12 of the Act provides that if any person turns to be insolvent, the interest which he
had in any property would remain to him. Any condition, which restrains the interest in the
property when a person turns insolvent, is void. This section does not apply to the conditions
of the lease.

Conclusion
The object behind the Transfer of Property Act, 1882 was of the free transfer of the property.
Section 10 of the Act lays down the conditions that when a property is transferred imposing a
condition of absolute restraint of alienation on the transferee, the same is void.

The right to ownership of property includes all the rights like enjoyment and alienation of the
property though it is subject to certain exceptions like lease or a transfer made to a married
woman.

Constitution of India, 1950 provides us with Article 300A i.e, right to property and every
citizen should not be deprived of any such right except in accordance with the law. Even,
Article 19 (1)(e), provides a fundamental right to settle and reside in any part of the territory
of India subject to certain restrictions. The right to proper enjoyment and disposal of the
property has been considered by the legislature and thus, absolute restraint on alienation has
been considered as void.