RESTRAINTS ON THE ALIENATION OF PROPERTY (S. 10)
Introduction
• Property Alienation Restriction: Section 10 of the Transfer of Property Act, 1882,
voids conditions that absolutely restrict the transferee’s ability to transfer their
property interest.
• Purpose of the Section: The section aims to protect the essential feature of
ownership rights, which is the right of disposal.
• Types of Conditions: The section deals with condition subsequent, which aHects
the transferee’s interest after the transfer of property.
Conditions restraining Alienation
Section 10 of the law voids absolute restraints on property transfer, except in leases and for
married women. Partial restraints are not void.
Absolute restraint
• Absolute Restraint Definition: An absolute restraint on alienation is a condition that
completely prevents the transfer of property, whether by time, person, or any other
means.
• Impact of Absolute Restraint: Section 10 of the law declares that an absolute
restraint on alienation renders a condition void and relieves the transferee from the
restriction.
• Determining Absoluteness: The determination of whether a restraint is absolute or
partial depends on the specific terms and conditions outlined in the deed.
Illustrations:
- A sells his house to B with a Condition that B can not transfer the house to anyone
except C. The condition here is void because C may be chosen as a person who may
never purchase the property.
- A husband settles his properties on his wives subject to a condition that they can
not transfer the property without his consent. The condition is void as it takes away
the power of alienation of the wives absolutely.
In a will, an adopted son’s absolute right to inherited property cannot be restricted by the
testator. Section 138 of the Succession Act overrides any such restrictions.
Partial restraint
Partial restraints on alienation are valid and enforceable, limiting the transferee’s power to
alienate the property to some extent.
• In Renand v. Tourangeaon it was held that a condition that transferee shall not
transfer the property for a period of twenty years is an absolute restriction and thus
void. If it were a condition that transferee shall not transfer the property for a period
of 3 years, it would be a partial restraint and thus valid.
