Partial Restraints On Alienation And The Promise Of Free Transfer: A Re-Examination Of Sections 10 And 11 In Family Arrangements
- IJLLR Journal
- Jun 4
- 1 min read
Shlok Shresth, The West Bengal National University of Juridical Sciences (NUJS), Kolkata
ABSTRACT
The Transfer of Property Act, 1882, voids conditions that strictly prohibit alienation of property, but it does not impose any limitation on alienation; Indian case law has addressed this omission by acknowledging the existence of a permissible partial limit on alienation through judicial decisions involving family arrangements. This article reviews the history of the law concerning the distinction between absolute and partial restrictions, beginning with the Privy Council's decision in Mohd. Raza v. Abbas Bandi Bibi (1932) and continuing through an examination of the Gayasi Ram test, the conflicting results in Mata Prasad and Rosher v. Rosher, and the further extension of the doctrine found in Zoroastrian Co-Operative Housing Society (2005). The review finds that reasonable partial restrictions are consistent with the general intention of the statute supporting alienation of property, but that due to the lack of an appropriate proportionality test in the present statutory framework, it is capable of being applied inconsistently and therefore, subject to abuse. Finally, recommendations for changes to both the legislative and judicial procedures regarding the Transfer of Property Act are made to establish a coherent statutory structure for the purposes of Sections 10 and 11.
