Answer :-
Dart said that the right of transfer is
incidental to and inseparable from the
beneficial ownership of property .
During transfer beneficial ownership is
passed from one to the other .
Therefore , when a person acquires
ownership upon a property , he
acquires , at the same time , the right
to transfer that as the right to transfer
is incidental to and inseparable from
the beneficial ownership of the
property . Power of alienation is a legal
incident of property . Ownership can
not be thought of without the right to
transfer . So any restriction on such
right of alienation is repugnant to and
not allowed by the law . In one English
case Jessel M.R observed , “ … you
may restrict alienation in many ways ;
….you may restrict alienation by
prohibiting a particular class of
alienation , or you may restrict
alienation by prohibiting it to a
particular class of individuals , or you
may restrict alienation by restricting it
to a particular time ….. “
Restraint on alienation may be of two
types , 1) absolute restraint and 2)
partial restraint .
When a property is transferred
absolutely restraining the transferee or
any person claiming under him from
parting with or disposing of his interest
to the property , the condition is void
except in certain circumstances . But
when the restraint is partial , the
condition is not void .
Section 10 of the Transfer of Property
Act lays down that if any property is
transferred subject to a condition or
limitation which absolutely restrains
the transferee or any person claiming
under him from parting with or
disposing of his interest in the property
such condition or limitation and not the
transfer itself is void .
So according to section 10 , if the
condition or limitation absolutely
restrains the transferee from alienating
his interest in the property , the
condition or limitation is void but the
transfer remains valid as if there was no
condition at all .
This rule is however subject to the two
exceptions ----
1) In the case of a lease , where such a
condition is for the benefit of the lessor
or those claiming under him , the
condition is valid .
2) A transfer to , or for the benefit of , a
woman not being a Hindu ,
Muhammadan or Buddhist , which
provides that she would not have the
power , during her marriage , to transfer
or charge the same or her beneficial
interest therein is valid . This exception
embodied the doctrine of restraint in
anticipation .
As for example of absolute restraint , if
A transfers property to B and his heirs
with a condition that if the property is
alienated , it should revert back to A .
Such a condition , being absolute , is
void . The transfer is valid as if there is
no condition at all .
On the other hand as for example of
partial restraint ,where A devised his
estate to his son with a proviso that if
the son desires to sell the estate or any
part of it during the lifetime of his wife ,
she would have the option to purchase
the same at a certain price . This
condition being partial is valid though
market price of the property rises
higher than the price mentioned in the
condition .
Restriction against an alienation in
deeds of transfer are bad , but not so
when they are imposed in compromise
of family settlement .
Dart said that the right of transfer is
incidental to and inseparable from the
beneficial ownership of property .
During transfer beneficial ownership is
passed from one to the other .
Therefore , when a person acquires
ownership upon a property , he
acquires , at the same time , the right
to transfer that as the right to transfer
is incidental to and inseparable from
the beneficial ownership of the
property . Power of alienation is a legal
incident of property . Ownership can
not be thought of without the right to
transfer . So any restriction on such
right of alienation is repugnant to and
not allowed by the law . In one English
case Jessel M.R observed , “ … you
may restrict alienation in many ways ;
….you may restrict alienation by
prohibiting a particular class of
alienation , or you may restrict
alienation by prohibiting it to a
particular class of individuals , or you
may restrict alienation by restricting it
to a particular time ….. “
Restraint on alienation may be of two
types , 1) absolute restraint and 2)
partial restraint .
When a property is transferred
absolutely restraining the transferee or
any person claiming under him from
parting with or disposing of his interest
to the property , the condition is void
except in certain circumstances . But
when the restraint is partial , the
condition is not void .
Section 10 of the Transfer of Property
Act lays down that if any property is
transferred subject to a condition or
limitation which absolutely restrains
the transferee or any person claiming
under him from parting with or
disposing of his interest in the property
such condition or limitation and not the
transfer itself is void .
So according to section 10 , if the
condition or limitation absolutely
restrains the transferee from alienating
his interest in the property , the
condition or limitation is void but the
transfer remains valid as if there was no
condition at all .
This rule is however subject to the two
exceptions ----
1) In the case of a lease , where such a
condition is for the benefit of the lessor
or those claiming under him , the
condition is valid .
2) A transfer to , or for the benefit of , a
woman not being a Hindu ,
Muhammadan or Buddhist , which
provides that she would not have the
power , during her marriage , to transfer
or charge the same or her beneficial
interest therein is valid . This exception
embodied the doctrine of restraint in
anticipation .
As for example of absolute restraint , if
A transfers property to B and his heirs
with a condition that if the property is
alienated , it should revert back to A .
Such a condition , being absolute , is
void . The transfer is valid as if there is
no condition at all .
On the other hand as for example of
partial restraint ,where A devised his
estate to his son with a proviso that if
the son desires to sell the estate or any
part of it during the lifetime of his wife ,
she would have the option to purchase
the same at a certain price . This
condition being partial is valid though
market price of the property rises
higher than the price mentioned in the
condition .
Restriction against an alienation in
deeds of transfer are bad , but not so
when they are imposed in compromise
of family settlement .
