Section 10, 11 and 12 of Transfer of Property Act, 1882 deals the concept of
conditions that restrict the transfer and enjoyment of property. It explores the
implications of such conditions in the context of property law, considering
their validity and exceptions.
Condition restraining alienation
Section 10 of the Transfer of property lays down that where a property is
transferred subject to the condition or a limitation putting an absolute
restrain to transfer of property then such condition should be void. The
important factor in this section is that the condition is void but the transfer
X transfers a property to Z, with a condition that Z can not sell the property.
Here z becomes the owner of the property and he is taking the property as if no
conditions were imposed and he is free to transfer the property to any person.
This section laid down two exceptions as enumerated below:
- Married Females
In lease there is a transfer of possession but here the lessor can impose an
absolute restraint upon lessee from making any transfer. Lessor can put an
limitation that lessee can not sub let or transfer his possession to any other
person. This is an exception to section 10 with the purpose to protect the
interest of the landlord.
This is the second exception of section 10 of the Transfer of Property Act.
Sometimes certain properties are transferred to a married female to give a sense
of security and respect that she had some property in her name but she is not
allowed to transfer the property to some other person. On surface it looks like
a disadvantage to a female but it is for her benefit.
The restraint to transfer
the property is there to protect her from the pressure of relatives to transfer
it to some other person. Sometimes to prevent abuse, the law takes back the
right itself. Hence there would be no right and there will be no abuse.
Section 10 of the transfer of property act uses the word that the female should
be other than Hindu, Muslim and Buddhist. This would again give us a meaning
that the women belonging to this religion would not be covered but such
interpretation is not correct as their personal laws already put same
restrictions during her marriage as provided under section 10 of Transfer of
Section 10 bards absolute restraint on transfer of property but partial
restraint are allowed. Partial restraint means that certain conditions while
transfer of property is allowed and certain conditions are not allowed.
In the case of Mohd. Raza v. Abbas Bibi
[[i] ] , it was held that restraint not
to transfer the property outside the family, is only a partial restraint and
In the case of Zoroastrian Cooperative Housing Society v. District Registrar
Cooperative Society [[ii]], it was held the restrain that the flat would not be
sold to non-Parsis is a partial restraint and it is allowed.
Condition restraining enjoyment
Section 11 of Transfer of Property Act, laid down that if there is transfer of
an absolute interest then no condition can be imposed as to how the interest
would be utilized. In simple word, if an absolute transfer is made then
transferor have no right to dictate as to how to use or enjoy the property.
Example- If B transfers a land to A with a condition that he would only be
sowing rice and nothing else. Section 11 of Transfer of Property Act would not
allow such condition and A is free to sow anything which he wants.
But in section 11 of Transfer of Property Act lays down an exception. If in
transfer a part of property is transferred then restriction as to enjoyment can
be imposed if it is for the benefit or enjoyment of other part of the same
If a house has been sold with four independent floors each belonging to
different individual. In such a case restriction can be imposed upon the owner
of the respective floors so that they don't create an obstacle to access the use
of easement foe enjoying their own floors.
Condition making interest determinable on insolvency or attempted alienation
Section 12 of Transfer of Property Act mention about transfer imposing certain
condition. The condition under section 12 are insolvency and attempted
Insolvency means that the person has greater liabilities than asset. Section 12
laid down that if there is a condition that if the transferee becomes insolvent
the property will revert back then such condition would be void. The basic
objective of this section is to protect the creditor as a person would be more
in need of a property when he becomes insolvent
If a condition is that the person interest would come to an end if he attempts
to sell the property then such condition is void.
Section 10 of the Transfer of Property Act establishes that conditions
restraining the alienation of property are considered void. This means that a
transfer of property cannot be subject to an absolute restraint on its
transferability. However, certain exceptions exist for lease agreements and
transfers to married females, which serve specific purposes related to the
interests of landlords and the protection of women.
Furthermore, Section 11 of
the Act clarifies that when an absolute interest is transferred, no condition
can be imposed on how the property should be utilized or enjoyed. Additionally,
Section 12 addresses conditions related to insolvency and attempted alienation,
aiming to safeguard the interests of creditors. These provisions collectively
ensure a fair and balanced approach to property transfers, protecting the rights
of both transferors and transferees.
- AIR 1932 PC 158
- AIR 2005 SC 2306