10/30/23, 4:29 PM Restriction Repugnant to Interest Created Under Transfer of Property Act

Restriction Repugnant to Interest Created Under Transfer of Property Act

Legal Studies Introduction To Law

Section 11 of the Transfer of Property Act covers repugnant conditions. Repugnant conditions
are those that are inconsistent with the nature of the transferred interest.

This provision prohibits the imposition of any condition ordering the transferee to apply or
enjoy any interest that is transferred absolutely in a particular manner. Such conditions or
directions are null and void, and the transferee is entitled to receive property as if such a
condition had never existed. Until now, the transfer was not null and void. These terms are
inconsistent with the nature of the transferred interest. As a result, they are regarded as
repugnant situations.

If a property is transferred absolutely in favor of the transferee, then any condition or terms of
transfer restricting the full enjoyment of the property (i.e., repugnant to the interest created)
allow the transferee under Section 11 of the TP Act to receive and dispose of the property as if
there were no such condition.

Essential Elements
This section comes into effect when the following conditions are fulfilled −

The transfer creates an absolute interest in favor of the transferee.

The transfer terms provide that the interest in the property must be enjoyed or applied
in the manner specified by the transferor.

Interest must be Created Absolutely

Section 11 specifies that the interest created in favor of the transferee be absolute in order for
it to apply. This Section does not apply when the created interest is not absolute, such as a
lease. A lease transfers only a limited interest, and the lease is bound by the conditions and
mode of enjoyment. The transfer of an absolute interest in property is not the same as the

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transfer of an absolute estate in property. Any interest, such as a life estate, may be created
without any conditions or restrictions qualifying its legal incidents.

Interest shall be Applied or Enjoyed in the Manner Prescribed by

the Transferor
The term "enjoyment of property" refers to several rights, including the right of alienation, the
right to partition property, the right to use the property for the purpose of residence, a
provision for payment, and so on. Property alienation rights are an essential element of
property enjoyment. A restriction on such rights is thus a restriction on the enjoyment of
property, and such restrictions should be disregarded.

A condition in a transfer deed compelling the donee of property and his heir to remain in the
property on pain of forfeiture of the gift is a restraint on the enjoyment of property and would
be void for repugnancy if the donor's primary intention was to make an absolute gift.

Object − The purpose of Section 11 is to make it easier for the transferee to enjoy the
property transferred by sale or gift, in which full ownership is transferred.

Exception
Nothing in this section shall be deemed to effect any right which the transfer may have to
enforce such a direction or any remedy which he may have in respect of a breach thereof
where such a direction is made in respect of one piece of immovable property for the purpose
of securing the beneficial enjoyment of another piece of such property.

Insolvency Condition
Section 12 of the Act states that Where property is transferred subject to a condition or
limitation making any interest therein,reserved or given to or for the benefit of any person, to
cease on his becoming insolvent or endeavouring to transfer or dispose of the same, such
condition or limitation is void. But nothing in this section applies to a condition in a lease for
the benefit of the lessor or those claiming under him.

Conclusion
The Transfer of Property Act, 1882, was created to govern the free transfer of property in
India. This transfer may occur in the present or in the future, but it must happen among live
people. This also addresses the restrictions and conditions that are imposed on transferring

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10/30/23, 4:29 PM Restriction Repugnant to Interest Created Under Transfer of Property Act

property, either entirely or in part. Sections 10, 11, and 12 contain certain conditions that
make the transferor's alienation of property void.

Frequently Asked Questions (FAQ)

Q1. What is the exception to Section 11 of the Transfer of Property Act?

Ans. If the transferor owns another piece of immovable property, he may put constraints or
restrictions on the transferee's right of enjoyment for the benefit of that property.

Q2. What is the difference between Sections 10 and 11 of the Transfer of Property
Act?

Ans. The difference between Sections 10 and 11 is that the former covers an absolute
prohibition on alienation of an interest created by a transfer, whereas the latter covers an
absolute transfer of an interest followed by a restriction on its free enjoyment.

Q3. What is "restricted interest" under the Transfer of Property Act?

Ans. It says that an interest in property that is restricted to the owner's personal enjoyment
cannot be transferred. This means that a person's right or interest that is only for his own
enjoyment cannot be transferred.

Q4. What are Sections 10, 11, and 12 of the Transfer of Property Act?

Ans. Sections 10, 11, and 12 of the Transfer of Property Act address the imposition of
restrictions or limitations on property transfers. They contemplate situations in which the
transferor may set limitations on the transferee in the instrument based on the interest thus
transferred.

Related Articles
Fraudulent Transfer Under Transfer of Property Act

Transfer by Co-Owner Under Transfer of Property Act

Principles of Apportionment Under Transfer of Property Act

Doctrine of Priority Under Transfer of Property Act

Doctrine of Subrogation Under Transfer of Property Act

Condition Restraining Alienation Under Transfer of Property Act

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10/30/23, 4:29 PM Restriction Repugnant to Interest Created Under Transfer of Property Act

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