School of legal studies department of law

COURSE TITLE: TRANSFER OF PROPERTY

LAW
COURSE CODE: IL-C-505

ASSIGNMENT ON: CONDITION RESTRAINING

ALIENATION

SUBMITTED BY:
NAME : MOHD FAIZ AHMED

ENROLL NO.: 2007CUKMR16

SEMESETER: 5th

COURSE : BALLB (5YEARS)

EMAIL ID : FAIZGTA1@GMAIL.COM

SUBMITTED WITH REGARDS ,

TO,
DR. INSHA YASIN

DEPARTMENT OF LAW SCHOOL OF LEGAL STUDIES, CENTRAL UNIVERSITY OF

KASHMIR.
 Table of Contents

Introduction ......................................................................................................................................... 1

Definition Section 10 of TPA.......................................................................................................... 1-2

What is Alienation……………………………………..................................................................... 2

Can Alienation of property Be Restrained?.............................................................................. 2-3

Types of Restraint.......................................................................................................................... 3

Exceptions of Restraint..................................................................................................................4

Conclusion ............................................................................................................................................ 4

Refrences .............................................................................................................................................. 5
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 Pallock 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. 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.

Let us first understand about conditional transfers

Conditions may be:-
i. Condition Precedent
ii. Condition Subsequent
Condition precedent is that condition which is prior to the transfer of property and whether the
transfer would take place or not is itself dependent on that condition. For e.g. A transfer Rs. 500
to B on Condition that she shall murder C. The transfer is void i.e. the transfer of property will not
take place.

And condition subsequent is a condition which is required to be fulfilled after the Transfer of
Property has already taken place, If a condition subsequent is void, the condition fails, but the
interest created by the transfer is not affected, while if a condition precedent is void, the transfer
fails.

For example- A makes a gift of his field to B on condition that he sets fire to C’s haystack. This is
a void condition precedent, and the gift fails. A makes a gift of his field to B with a proviso that if
he does not within a year’s time set fire to C’s haystack the gift shall be void. This is a void
condition subsequent. The gift is a good gift and is not affected by the void condition.

Definition of Section-10 of TPA

Section 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 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 women (not being a Hindu,
Mohammedan or Buddhist) so that she shall not have transfer or charge the same for her beneficial
interest therein”.

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This is based in the general rule of jurisprudence “alienation rei prae fertur juri accrescendi” 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.

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, 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.

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
wether it comes under Dayabhaga or Mitakshara school. This power is absolute.

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 of 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.

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, absolute power has been given in Mitakshara
and Dayabhaga schools to alienate his property.

Can Alienation of property Be Reatraint?

Section 10 to 18 of the Transfer of Property Act, 1882 state the rules for alienation of property-

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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’. The Transfer of Property Act is based
of 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’ 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.

Types of Restraint

1. 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 this case of Renand v. Tourangeaon, a condition restraining alienation for a time of twenty
years was considered as an absolute restraint and hence void.

2. 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, 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 Prasad vs Nageshar Sahai, 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.

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Exceptions of Restraint

Section 10 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 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.

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.

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 Constitution of India the citizen has a fundamental right to reside and settle down in
any part of the Indian Territory. If there is 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.

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References
Subodh Asthana, conditions restraining Alienation under the Transfer of Property Act, 1882,
https://blog.ipleaders.in/alienation-restraint/,

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

Dr. Avtar Singh, The Transfer of Property Act, 1882

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