Unit I — General Principles of Transfer

“Once an owner, the law will not let you cease to be an owner by your own grant — a transfer that destroys the very interest it confers is void.” — the principle behind restraints on alienation

What May Be Transferred & Restraints on Alienation

A transfer of property (s.5) is an act by which a living person conveys property, in present or future, to one or more other living persons or to himself and others. “Property” includes both movable and immovable property; the distinction matters for the mode of transfer (registration), and turns on attachment to the earth — standing timber, growing crops and grass are movable, while things rooted in or permanently fastened to the earth are immovable. Under s.6, property of any kind may be transferred except the enumerated bars — spes successionis (mere chance of an heir, s.6(a)), a right of re-entry, an easement apart from the dominant heritage, a right to future maintenance, and a mere right to sue.

flowchart TD
    A["Restraint on alienation (s.10)"]:::root
    A --> B["ABSOLUTE restraint<br/>(total bar / consent withheld at pleasure)"]:::no
    A --> C["PARTIAL restraint<br/>(reasonable, limited regulation)"]:::yes
    B --> B1["VOID — Rosher v. Rosher (1884)"]:::no
    C --> C1["VALID — Mata Prasad v. Nageshar Sahai (1925)"]:::yes

    classDef root fill:#FFF8DC,stroke:#333,color:#000;
    classDef yes fill:#E6FFE6,stroke:#1E7A1E,color:#000;
    classDef no fill:#FFE6E6,stroke:#8A1E1E,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Section 10 makes void any condition absolutely restraining the transferee from parting with his interest — the power of alienation is an incident of ownership, and a transferor cannot give an absolute interest and then take away the power to dispose of it. Only a reasonable partial restraint is valid.

Unborn Persons, Perpetuity & Vested vs Contingent Interests

A transfer for the benefit of an unborn person (s.13) is valid only if the whole remaining interest is given to the unborn person (no life estate to him) and is preceded by a prior life interest. The rule against perpetuity (s.14) forbids tying up property beyond the life/lives in being + the minority of the ultimate beneficiary — vesting cannot be postponed beyond a life in being plus 18 years. The distinction between vested and contingent interests is decisive for transferability and survival:

✏️ Sample Solved Problem (IRAC Method)

Problem: A sells a house to B with a condition that B shall not alienate it at all (or not without A’s consent). Is the condition valid?

I — Issue

Whether a condition wholly restraining the transferee’s power to alienate the property is valid under the Transfer of Property Act.

R — Rule

Section 10 — a condition or limitation absolutely restraining the transferee from parting with or disposing of his interest is void; only a reasonable partial restraint is good. Rosher v. Rosher (1884) treated a condition compelling resale to the transferor at a gross undervalue as, in substance, an absolute restraint and void; Mata Prasad v. Nageshar Sahai (1925) upheld a genuinely partial restraint.

A — Analysis

The decoy is freedom of contract — “the parties agreed to it, so B is bound.” But the power of alienation is an incident of the ownership A conferred, and the law will not allow A to grant an absolute interest and simultaneously negate the very power that makes it ownership. A condition that B “shall not alienate at all” is a total bar — absolute and void. A condition “not without A’s consent” must be tested for substance: if consent may be withheld at pleasure, it is a disguised total prohibition and void; if it is a genuinely limited, reasonable regulation, it may be upheld as a partial restraint. Crucially, only the offending condition falls — the transfer itself stands, so B takes the house free of the void restraint.

C — Conclusion

The absolute restraint is void; B may alienate the house freely, the sale itself remaining valid. Only a genuinely partial restraint would have bound B.

📄 The full bundle (₹199) has the complete Unit I — movable/immovable property, s.6 non-transferable interests, restraints on alienation, unborn persons, perpetuity and vested vs contingent interests — plus the Question Bank’s model answers to 12 solved problems (restraints, spes successionis, perpetuity, conditional transfers). Get Notes + Question Bank — ₹199