Condition Restraining Alienation
Condition Restraining Alienation
I. Concept
Section 10, TPA, 1882 provides that any condition or limitation absolutely restraining the transferee from alienating (selling, gifting, mortgaging, leasing, or otherwise transferring) his interest in property is void.
Alienation = transfer of ownership or interest.
👉 Rule: Ownership necessarily carries with it the right to transfer. Any clause that completely prohibits transfer goes against public policy.
II. Exceptions
Lease (Partial Restraint Valid):
A condition in a lease restraining the lessee from subletting is valid.
Married Woman’s Benefit (Sec. 10 Proviso):
When property is transferred to a woman (not being a Hindu, Muslim, or Buddhist) with a condition against alienation, such restraint is valid.
III. Case Laws
Rosher vs. Rosher (1884, English case often cited in India)
A property was transferred with a condition that it could be sold only to the seller at a fixed price.
Held: Such a condition was an absolute restraint on alienation and hence void.
Smt. Shantibai vs. State of Bombay (1959)
A transfer with a condition prohibiting alienation was held void, reaffirming the principle of Sec. 10 TPA.
K. Rangaswami vs. K. Venkatachalam (1995)
Court held that a restraint which makes transfer practically impossible amounts to absolute restraint and is void.
Vishweshwar vs. Tukaram (1993)
Partial restrictions (like taking prior consent before transfer) were considered permissible as long as they do not amount to total prohibition.
IV. Distinction: Absolute vs. Partial Restraint
Absolute Restraint: “The transferee shall not transfer the property at all.” → Void.
Partial Restraint: “The transferee cannot transfer to X person” or “cannot transfer without consent.” → Valid, if reasonable.
V. Importance
Encourages free circulation of property in society.
Prevents deadlock in property ownership.
Balances transferee’s ownership rights with transferor’s limited control.
VI. Conclusion
General Rule (Sec. 10, TPA): Absolute restraints on alienation are void.
Exceptions: Certain leases and transfers for the benefit of women.
Judicial Approach: Courts uphold only reasonable and partial restrictions, striking down absolute prohibitions.
⚖️ Exam Answer Tip:
Begin with definition + Section 10.
Mention the general rule + exceptions.
Use at least 3–4 case laws (Rosher, Shantibai, Rangaswami).
Conclude that free transferability of property is the rule; restraint is the exception.
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