• AUTHOR :
This article is written by Kamaldeep kaur, student at institute of law, Kurukshetra University, Kurukshetra.
• INTRODUCTION :
The transfer of property act, 1882 (TPA) is an act laying down the rules and regulations concerning the transfer of property between persons of india. Rosher v. Rosher is a landmark case in English property law specially at it imagine the limits of evidence freedom and absolute restraint on disaffection of one’s property by way of law.
• FACTS :
– The case waked from the will made on 26 November, 1872 by J.B. Rosher. He made the following arrangements:
1. He quit his manor and all his other real estate to his son, Jeremiah Liburn Rosher, and his successors.
2. Though, if his son or heirs wanted to sell the property while J.B. Rosher’s wife was still alive, she had the choice to buy it at a equitable price, primarily set at £3600 or a compatible number for any part of it.
She had the first right to buy at this price.
3. J.B. Rosher also declared 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.
4. After this period, his wife had the choice to live there for more than three years at a formal rent. If the property was rented for more than seven years, she was authorised to an annual rent of £35, and this rent had to be proposed to her first.
5. Moreover, it was a obligation for the son and his heirs to offer the property to the widow first. If she refused, only then could they offer it to others.
6. J.B. Rosher gone on November 26, 1874. The case was delivered to court by his widow against his son.
• ISSUES :
1. Whether according to the true creation of the will, the son and his heirs can sell or to mortgage or charge the property without first proposing the widow the choice to buy the yard so proposed to be sold or to be mortgaged or charged at the price named in the will or at a comparable price?
2. Whether the provisions and directions authorised in the will in implication to the choice of buy were null and void?
3.Whether or not, according to the true creation of the will, the son was authorised to let the yard, or any part thereof, for a longer period than three years, or the yard , for a longer period than seven years, without first proposing to the widow the choice of renting the same respectively as directed by the will?
• ARGUMENTS STATED BY THE COUNSELS :
The counsel for the widow stated that the limitation on disaffection of property is a valid one.She son is only bound to these situations when it comes to selling and buying. There is no restraint in mortgaging or cutting timber. According to the counsel for the widow the restraint is a very limited restraint and the son can always mortgage the property as there is no clause avoiding that he then ‘quoted In re Macleay where the court held that the restraint was valid because it was a very limited restraint.
He then goes on to say that the restraint is not on disaffection but only consider a situation and provides a method to alienate the property in that case.
The counsel for the son claimed that the situation is totally void as its a complete restraint on the sale of the property. He states that it o%ay to have a situation where the property can only to one person or a group of persons. But the vice is that there is a restraint of forbearance. She fixed prices which is much less of the actual market price of the property at the time of writing the will restraints the possessor from letting a full simple fee for the property.
• TYPES OF RESTRAINTS :
1. ABSOLUTE RESTRAINT :
– An absolute restraint is such a restraint which completely takes away the right of the transferee to disaffection or dispose of the property. The transferee can now no longer transfer his interest in the property to another person and he has no autonomy to do what he wants with the property in his adequacy as the owner of the property.
– Section 10 states that any situation charged on the transferee which would amount to an absolute restraint on the right of the transferee to ditch his interest in the property shall be void. The property must be transferred to the transferee subject to the situation.
-In Rosher v. Rosher (1884), A made a gift of a home to B, and gave a situation that if B determine to sell the house during the lifetime of A’s wife, she should have the choice of buy it for Rs 10000, while the market value of the house was set at Rs 10,00,000. This condition was held to be an absolute restraint and was announced void.
-In Kannamal v. Rajeshwari, AIR 2004 NOC 8 (Mad), a life estate was to be assembled n favour of ‘M’, but the transferor gave an absolute limitation along with the property transfer to M, whilst evicting himself of all his interests in the property. This restraint was held to be invalid and as there was an absolute transfer.
-In Mohd Raza v. Abbas BandiBibi,(1932) 59 IA 236, a condition charged for a specific time or transfer to a particular person has been held to be void.
2. PARTIAL RESTRAINT :
– A partial restraint is a situation which partially takes away the right of the transferee to get read of his interest in the property. Here, the right is not taken away significantly. Section 10 does not definite talk about partial restraints. A situation charging partial restriction is valid.
– In Mata Prasad v. Nageshwar Sahai (1927) 47 All 484, there was a conflict about succession between nephew and widow. A compromise was formed that the widow had possession of the property while the title for the same was given to the nephew with the situation that he was restricted from disaffecting the property during the widow’s lifetime. It was held that the adjustments and the condition were valid and prudent in the present case.
• OBSERVATIONS :
– The obligations to sell the property at a price significantly below its actual value, even for a limited duration, comprised an absolute limitation during that timeframe and is therefore considered null and void.
– Selling at 1/5th of the value, however of the property’s market worth, is comparable to a suppression on selling altogether, akin to a limitation like “you shall not sell during the lifetime of the widow.”
-It was observed by the court that mandating removal at a much lesser value counted to an absolute suppression during her life time hence it was invalid. They argued that whatever fraction of worth they sold at however of what market cost would be comparable to not selling at all just like “you shall not sell during widow’s life”.
• IMPLICATIONS OF THE JUDGMENT :
Rosher v Rosher set down an important judgement in property law. It eminent any situation which absolutely restrains further transfer is void ab initio. This ruling is substantial in understanding the scope and limitations of documentation freedom, significantly in charging conditions on property disaffection. It serves as a basis
in construing Section 10 of the Transfer of Property Act which deals with restraints on disaffection.
• CONCLUSION :
Rosher v. Rosher stands for a milestone verdict that defines to what extent testamentary dispositions could burden property transfer. It emphasizes the legal principle that a testator has wide latitude in directing his or her property’s use and transfer but such liberty is not without limits and it is circumscribed by the prohibition against undue restrictions on alienation of property under law. The case remains an important reference point for legal debates surrounding issues such as property rights, testamentary freedom, and the delicate balance between individual autonomy and legal constraints underpinning the laws relating to property ownership.
Rosher v. Rosher stands for a milestone verdict that defines to what extent testamentary dispositions could burden property transfer. It emphasizes the legal principle that a testator has wide latitude in directing his or her property’s use and transfer but such liberty is not without limits and it is circumscribed by the prohibition against undue restrictions on alienation of property under law. The case remains an important reference point for legal debates surrounding issues such as property rights, testamentary freedom, and the delicate balance between individual autonomy and legal constraints underpinning the laws relating to property ownership.
• REFERENCES :
• FAQ :
1. What are the repugnant conditions?
2. What is the rule against inalienability in property law?
3. What is the condition restrainting enjoyment of property?
