What May Be Transferred & Restraints on Alienation — KSLU Property Law Notes

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.