Aligarh Muslim University

Malappuram Campus,
Kerala.
Session 2021-22

GCT- I

On
Transfer Of Property Act

Submitted by: Submitted to:

Akshun Agrawal Dr. Naseema P.K.

Roll NO -18BALLB60 Assistant Professor

Enroll No - GL0743 AMU Malapuram Centre

VIIth Semester Department Of Law

…………………………
(Signature)
 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.
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.

What Is The Transfer Of Property According To Law?

Section 5 of the Transfer of Property Act, 1882 has several conditions for
an act to be defined as a ‘transfer of property’-
A ‘living person’ must convey property. Conveying essentially means
giving a title of ownership on the property to the transferee. A living person has
been defined in the same section to include company, association or a body of
individuals whether it has been incorporated or not. The conveyance of the
property can be carried out in both the present and the future. This conveyance
may happen towards one or more other living persons, including himself.

What Can Be Transferred?

It is not explicitly stated in the Act regarding what is ‘property’ or what can
be transferred. Rather, the Act states that property of any kind may be transferred
subject to exceptions given under Section 6. The property that can be transferred
includes both movable and immovable property, as well as intangible property
like tenancy, copyrights etc.

Who Is Competent To Transfer?

Section 7 of the Transfer of Property Act categorizes persons competent to
transfer as-
 • Every person is competent to contract under the Indian Contract
Act, 1872 and entitled to the transferable property.
• A person who is authorised to dispose of transferable property that
he does not have the ownership to.
• This property can be transferred wholly or partly, absolutely or
conditionally, with regard to the extent of the law and circumstances.
The property, as stated above may be conveyed to any living person
including a company, association or a body of individuals whether
incorporated or not. Under Section 13, even an unborn child can be
the transferee of the property.

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 whether 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 or father can do so.
Can Alienation Of Property Be Restrained?
Section 10 to 18 of the Transfer of Property Act, 1882 state the rules for
alienation of property-
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 on 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’ are 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. Therefore, restraints can be classified into two categories.
 Types Of Restraints
• Absolute Restraints
An absolute restraint is such a restraint which completely takes
away the right of the transferee to alienate or dispose of the property.
The transferee can now no longer transfer his interest in the property
to another person and he has no freedom to do what he wants with the
property in his capacity as the owner of the property.
Section 10 stipulates that any condition imposed on the
transferee which would amount to an absolute restraint on the right of
the transferee to dispose of his interest in the property shall be void.
The property must be transferred to the transferee subject to the
condition.
• In Rosher v. Rosher1, A made a gift of a house to B, and gave
a condition that if B decides to sell the house during the lifetime of
A’s wife, she should have the option of purchasing it for Rs 10000,
while the market value of the house was set at Rs 10,00,000. This
condition was held to be an absolute restraint and was declared void.
• In Kannamal v. Rajeshwari2, (Mad), a life estate was to be
created in favour of ‘M’, but the transferor gave an absolute
restriction along with the property transfer to M, whilst divesting
himself of all his interests in the property. This restraint was held to
be void as there was an absolute transfer.

1
(1884) 26 Ch D 801
2
AIR 2004 NOC 8
 • In Mohd Raza v. Abbas BandiBibi, 3 (1932) 59 IA 236, a
condition imposing restriction for a particular time or transfer to a
specific person has been held to be void.
• Partial Restraints
A partial restraint is a condition which partially takes away the
right of the transferee to dispose of his interest in the property. Here,
the right is not taken away substantially. Section 10 does not
explicitly talk about partial restraints. A condition imposing partial
restriction is valid.
• In Mata Prasad v. Nageshwar Sahai (1927) 47 All 484, there
was a dispute regarding succession between nephew and widow. A
compromise was formed that the widow had possession of the
property while the title for the same was given to the nephew with the
condition that he was restricted from alienating the property during
the widow’s lifetime. It was held that the compromise and the
condition were valid and prudent in the present case.

Exceptions To The Restraints

• Lease
A lease is a transfer of property wherein the lessee only has the
right of enjoyment of the property, while the ownership right is still
with the lessor. Conditions imposing restrictions are valid in the case
of a lease, where the condition is for the benefit of the lessor or those
claiming under him. In Raja JagatRanvir v. Bagriden, AIR 1973 All
1, a condition in the lease that the lessee shall not sublet or assign was
held to be valid.

3
 • Married Woman
When the property is to be transferred to a married woman, who
is not a Hindu, Mohammedan or Buddhist, then the condition
restricting alienation can be valid.
• Repugnant conditions
Section 11 of the Transfer of Property Act contains conditions
which are inconsistent with the nature of the interest transferred are
repugnant conditions. These conditions come with the transfer when
the transfer confers to the transferee, absolute interests in the
property. Any condition with a transfer of absolute interests in the
property will be void.
When a property is transferred absolutely, it must be transferred
along with all its legal incidents. In Manjusha Devi v. Sunil Chandra,
AIR 1972 Cal 310, the parties entered into a sale for a piece of land.
In the sale deed, it was mentioned that the buyer could only use the
land for setting up a factory for jute textile manufacturing. It was held
that this condition was invalid as the absolute interests in the land had
been transferred to the buyer and he could use it as he pleased.
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