TPA - Section 10
Section 10
"10. Condition restraining alienation.-Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him:
Provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein."
Any condition restraining the transferee the right of alienation is void.
Transfer of Property Act, 1882 (IV of 1882) - Section 10 – Expressly provides that where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void - Any condition restraining the transferee the right of alienation is void. #2020 SCeJ 60
Held, gift deed categorically states: "donor doth hereby grant, convey, makeover and transfer by way of gift to the donee above named the immovable property described in the schedule hereunder". The gift deed in favour of the donor was absolute and who was to exercise rights of ownership subject to the conditions detailed in the gift deed. One of the conditions which was enumerated in the gift deed was that "the donee or his younger brothers who may be born hereafter have no right to alienate the schedule property in any manner whatsoever by way of sale, gift mortgage or otherwise".
"Now the law of conditions in regard to the transfer of property is contained in Ch. 2 of the T.P. Act. No condition therefore, in our judgment, imposed upon a donee can be valid if it is inconsonant with the provisions of Section 10 of the Act. The contention, of learned Counsel for the plaintiffs that Section 126 is an absolute exception to Section 10 and that in view of the terms of the former Section the donor was entitled to impose a condition entitling him to revoke upon any event happening including an alienation by the donee, provided that event did not depend on the will of the donor in our judgment is unsound. It is the duty of the Court to give full effect to every Section of an enactment. We see no difficulty in reconciling the provisions of Sections 10 and 126. Section 10 embodies the general principle that a transfer of immovable property may not impose a condition restraining the transferee from alienating the interest conveyed to him absolutely except in the case of a lease where the condition is for the benefit of the lessor. This general provision, in our judgment, applies to all transfers including gifts. Apart from the condition restraining alienation by a lessee, there is no other exception." Smt. Brij Devi v. Shiva Nanda Prasad and others, AIR 1939 Allahabad 221
"15. A bare reading of Sections 10 and 126 of Act, 1882, shows that Section 10 lays down that in a transfer, the condition restraining alienation, cannot be inserted. Section 126 of Act, 1882 lays down that on happening of certain condition, not depended on the will of the donor, the gift can be suspended or revoked. Present case is not covered under Section 126. According to the respondent, gift can be conditional. But there is no question as to whether a gift can be conditional but the real question is that condition, which has been specifically prohibited under Section 10 of Act, 1882 can be imposed in the gift or not. There is no reason to hold that the condition which is specifically prohibited under Section 10 of Act, 1882 is not applicable to gift. This question came for consideration before various Courts in under noted cases from time to time, viz Re Dugdale (1888) 38 Ch D 176; Nabob Amiruddaula v. Nateri (1876) 6 Mad HC 356 (Mohomedan Law); Anantha v. Nagamuthu (1882) ILR 4 Mad 200; Ali Hasan v. Dhirja : (1882) ILR 4 All 518; Bhairo v. Parmeshri: (1885) ILR 7 All 516; Muthukamara v. Anthony (1915) ILR 38 Mad 867, 24 IC 120; Narayanan v. Kannan (1884) 7 Mad 315, Brij Devi v. Shiv Nanda Prasad:AIR 1939 All 221; Giani Ram v. Balmakand :(1956) 58 Punj LR 114 : AIR 1956 Punj 255; Ramasamy and ors. v. Wilson Machine Works AIR 1994 Madras 222 (NOC), Jagdeo Sharma v. Nandan Mahto: AIR 1982 Pat. 32 and Gorachand Mukherji v. Smt. Malabika Dutta: AIR 2002 Cal 26. This Court has already taken the view that condition restraining donee from alienation of gift, cannot be imposed and such a condition is void under Section 10 of the Act, 1882. I respectfully agree with the aforesaid view taken in Brij Devi (supra). “ Smt. Prem Kali v. Deputy Director of Consolidation, Sitapur and others, 2016(116) ALR 794