ROSHER V ROSHER (1884) 26 Ch D 801
Diksha Tiwari from JIMS ENGINEERING MANAGEMENT CAMPUS OF Law
Introduction
- The Rosher v Rosher is the landmark property judgement decided in 1884 under Section 10 of Transfer of Property Act ,1882.
- This case centered on the testamentary will of the J.L Rosher. As he particularly imposes condition of the sale and rental of his property by his son and heirs.
- The key issue revolved around the validity of these condition which were deemed to an absolute alienation and thus null and void.
- As it is an English case which particularly illuminate limit of testamentary freedom in the property alienation.
Facts
As J.B Rosher in his will on 26 November 1872 made following arrangement in his testamentary will :
- He left his manor and all his real estate to his son,Jeremiah Liburn Rosher and his descendants.
- If his son or heir wanted to sell the property while his wife was still alive she had the option to buy it at fair prices as initially set £3600 or proportional amount.
- She had the first right to purchase at this price.
- J.B Rosher also added that if his son or his descendants want to sell any part of the property they have to sell it within 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. In other words, she had the right to continue living there at a discounted rate for up to three years, and if the property remained rented beyond seven years, she could receive an annual rent of £35, with priority given to her for renting the property.
- Also his son and heir is required to offer the property first to the widow if she declines then only they could offer to others.
- J.B Rosher passed away on 26th November, 1874.The case was brought in court by widow wife against his son
Issue
- Whether according to the will his son or heir will be able to sell his property without first offering to the widow?
- Whether the provision and in his will written in order to purchase were null and void?
Judicial Observation and Decision
- The court concluded that forcing the widow to sell the property at a much lower price than its actual market value amounted to an absolute restriction on her rights.
- This restriction was deemed null and void because it essentially prevented her from selling the property, akin to a direct prohibition such as “you shall not sell during the lifetime of the widow.”
Implication of judgement
- As this establish a crucial precedent of the property law cases.
- As it highlight any condition of the absolute restrain of the cases and further as null and void .
- This ruling also significant in understanding importance and limitation and scope about the testamentary freedom particularly imposing condition on the property alienation.
- This case serves as an important part in order to interpretation of the Section 10 of Transfer of Property Act which address condition restraining alienation.
Conclusion
- The landmark judgment in Rosher v. Rosher elucidates the boundaries within which testamentary dispositions can impose conditions on property transfer.
- It highlights the legal principle that although a testator enjoys significant autonomy in dictating the use and transfer of their property, this autonomy is not unfettered and is constrained by the legal prohibition against undue restraints on property alienation.
- The case remains a pivotal reference in legal discourse surrounding property rights, testamentary freedom, and the delicate equilibrium between individual autonomy and legal constraints within property law.
