Introduction
The Transfer of property act, 1882 states in its preamble that it aims to define and amend laws relating to the Transfer of property. It does so not by operation of law but rather by the act of the parties.
Transfer of property act is a civil law and codifies substantive rights. The act is also not exhaustive in nature, meaning it does not cover the entire dimension of the Transfer of property. As such, it being a substantive law, there are a lot of relevant cases regarding the Transfer of property, so in the interest of time, we’ll take a look at the most important landmark cases on the Transfer of Property Act.
Case name:-
Rosher v.
Rosher (1884) 26 Ch D 801
Introduction
This is a landmark case of absolute restraint covered under Section 10 of the Transfer of Property Act, 1882 (TPA).
Section 10 of TPA: 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.
Fact
J.B. Rosher, in his will from 26th November 1872, made the following arrangements:
He left his manor and all his other real estate to his son, Jeremiah Lilburn Rosher, and his descendants.
However, if his son or heirs wanted to sell the property while J.B. Rosher’s wife was still alive, she had the option to buy it at a fair price, initially set at £3600 or a proportional amount for any part of it.
She had the first right to purchase at this price.
J.B. Rosher also stated that if his son or heirs decided to rent out the property or any part of it, they could do so for up to three years.
After this period, his wife had the option to live there for more than three years at a nominal rent. If the property was rented for more than seven years, she was entitled to an annual rent of £35, and this rent had to be offered to her first.
Furthermore, it was a requirement for the son and his heirs to offer the property to the widow first. If she declined, only then could they offer it to others.
J.B. Rosher passed away on November 26, 1874. The case was brought to court by his widow against his son.
Issue raised
Whether the provisions and directions contained in the will in reference to the option of purchase were null and void?
Whether or not, according to the true construction of the will, the son was entitled to let the premises, or any part thereof, for a longer term than three years, or the premises , for a longer period than seven years, without first offering to the widow the option of renting the same respectively as directed by the will?
Court’s Observations:-
The court observed that the test to determine whether a restraint is absolute or only partial depends upon the effect and not on the form of words laying down the condition.
If the effect is absolute, it would be struck off as bad howsoever clear language may have been used.
Thus, in this case, it was held that a condition to sell the property at 1/5th of its value even to a limited period was an absolute restraint during that period and is hence void. The throwing away at 1/5th value (irrespective of whatever might have been its market value) is equivalent to a restraint upon selling at all (i.e., ‘during the lifetime of the widow, you, shall not sell’). Hence it became one of the landmark cases on the Transfer of property act.
Conclusion
It was concluded that any condition which restraints further transfer absolutely, is null and void.
Name: Sneha
College: Bhagat Phool Singh Mahila Vishwavidylaya
