RULE AGAINST ALIENABILITY AND EXCEPTIONS

The property is transferred from one person to other on some of the terms and conditions. These may vary depending on the case and circumstances. However, there are also some of the restraints attached to the sale or transfer of the property. According to section 10 of Transfer of Property Act, 1882, if the sale of property includes a condition of absolute restrain on transfer of property further, the condition will be void. This rules is knowns as rule against alienability. The transfer of property has to be free and cannot hamper the rights of the buyer. The rights of the buyer as stated in section 55 states that the buyer has absolute authority over the property once transferred. The condition of restriction can be either absolute or partial. The conditions of absolute restrictions are void.

In the case of Rosher v Rosher (1884) 26 Ch D 801, it was held that the condition of absolute restraint on selling or transferring the property further by any mode will be void. Also, in the case of Kannamal v Rajeshwari, AIR 2004 NOC 8 (Mad), it was held that the restraint from further transfer of the property is void.

The restraint can be either absolute or partial. Partial restraint is the one which does not take away the right of alienation. It just imposes some of the terms and conditions in relation to the property sold. These can be restrain on enjoyment etc. this can only stop the buyer from some of the benefits that too depending on the conditions mentioned. Some of the restrains can be considered to be valid depending on the reliability to the provisions of the act.

The restraint is void in order to protect the rights of buyers. If the restraint of non-selling of the property would have been accepted this would have led to non-performance of the transfer of rights. Selling a property is also like transferring every possible right attached to it. However, there are also some of the exceptions to the restraints. They’re necessary to protect the rights of the buyers or leasers. The exceptions have been mentioned below.

As section 10 of the act states that the restraints on property is invalid. However, there are some exceptions to the rule against alienability. One of the major exceptions is related to lease. Lease does not lead to absolute transfer of ownership of the property to lessee. Once the lease deed is signed and lessee starts living in the property, then also the owner is the lessor of the property. Hence, the rights are vested upon lessor and not lessee.

Conditions that impose restrictions are valid in the case of lease deed. In the case of Raja JagatRanvir v Bagriden, AIR 1973 All 1, if a condition related to not subletting or assigning the property is mentioned in the lease deed, it will be valid. A lessee is bound to follow the condition. Also, the restraint from preventing the subletting does come under the criteria of restrain of enjoyment.

The next exception is the married woman. This means that when a property is transferred to a married woman, conditions to restraint can be attached. In this case, the restriction can be imposed of non-alienating the property. The concept of restrain is necessary for the transfer of property as it defines some of the rights of both the buyer and seller. Both have some duties and rights towards each other. The concept of stating the absolute restrain is necessary for keeping the rights of the buyer safe and secure. Thus, it is plays a vital role.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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