Rosher v Rosher  – case analysis

Rosher v Rosher  – case analysis

Author: Sibani Suresh, a student of Symbiosis Law School


A court case called “Rosher v. Rosher” deals with problems pertaining to both partial and total restrictions on the alienation of property. It is regarded as a seminal case that is referenced in Indian judgements, offering clarification in a hotly contested field of the law. Certain fundamental rights come with being the owner of the property, such as the ability to transfer ownership, possess it, and alienate it without unjustified interference. The case illustrates that absent a clear contract to the contrary, private agreements cannot unduly infringe upon a property owner’s right of alienation.

The governing principle emphasises that limitations on a grantee’s ability to assign property to anybody, at any time, are known as “restraints on alienation.” Real estate security laws have evolved recently, rekindling interest in striking a balance between preserving real estate’s free alienability and preventing measures to restrict an owner’s capacity to transfer their holdings. The theory of restrictions on alienation was first introduced in a feudalistic culture, but the legal landscape has since changed, and the judiciary’s role in defining and upholding the doctrine is being reexamined in modern settings.


Andrewyn Manor, which included both Andrewyn House and Lower Andrewyn, was owned by the late J.B. Rosher. He left his son, Jeremiah Lilburn Rosher, the manor and other holdings in Monmouth and Hereford counties in his will, dated November 12, 4561. According to the terms of the will, Jeremiah had to give his mother, J.B. Rosher’s wife, £7888 or a fair price for any portion of the property before he could sell it all.

Furthermore, if Jeremiah leases Andrewyn House for a duration longer than seven years, the mother will be able to lease it for any length of time longer than seven years for £19. Should Lower Andrewyn be leased for a duration longer than six years, the mother may choose to lease it for an additional six years for £79 per year. The widow filed a lawsuit against the son after J.B. Rosher passed away.

The case was filed for the court’s consideration by Order XXXI of the Rules of Court (4569), which said that at the time of the testator’s death and the will, the true selling worth of Andrewyn Manor and other estates was £49,888 or more. Lower Andrewyn and Andrewyn House had a yearly rental value of £488.


The widow is claiming that the son must follow the steps specified in the will and obtain her approval before leasing or selling the property. The son contends, however, that these terms are null and unenforceable since they amount to limitations on the transfer of property. He thus claims that he has the right to freely transfer the property.

In this particular instance, the court must decide on two key issues:

  1. , According to the accurate reading of the will, the son is entitled to charge, sell, or mortgage the estates left to him without first giving the widow the chance to buy the property that is going to be sold or mortgaged at the cost mentioned in the will, or at a reasonable price based on the amount dealt with. If the buy option clauses in the will are void, the court must decide.
  1. According to the correct reading of the will, the son is entitled to lease Lower Andrewyn or Andrewyn House without first giving his mother the option to lease. Whether the leasing conditions are invalid or have no bearing at all is up to the court to determine.

Arguments of Counsel

The widow’s attorney contended that the will’s restrictions on the alienation of property are legitimate. The son is under no restrictions on mortgaging or wood cutting; these conditions solely apply to the sale and purchase of the property. The lawyer underlined that the son is free to mortgage the property without any restrictions because the restraint is only temporary.

The son’s attorney, however, argued that the condition is null and void and completely prohibits the sale of the property. It was argued that while it is okay for a property to belong to a certain person or group, the limitation on consideration is the problem. The possessor is unable to get the full market worth of the property due to the fixed price stated in the will, which is significantly less than the going rate in the market at the time the will was written.


The court determined that the restriction is total and will be null and void.


Any owner of real estate who possesses the necessary competence to transfer may do so unconditionally or under certain restrictions. Conditions signify constraints or limitations on the recipients’ rights, and transfers that are subject to limitations are known as “conditional transfers.” These requirements may be either conditions prior, which come before the transfer and are dependent on their fulfilment, or conditions subsequent, which are to be satisfied after the transfer and have an impact on the transferees’ rights following the transfer.

According to the law against inalienability, a condition or restriction that limits the transferee’s complete ability to give up or sell their interest in a piece of property is null and void. This rule states that all property should be transferable in general, which is in line with the main tenet of the Transfer of Property Act. As such, any clause prohibiting alienation is deemed null and void. Such a condition may be disregarded by the transferee, who may then use the transferred property as though the condition had never been there.

Related case laws

Zoroastrian Co-operative Housing Society Ltd v. District Registrar Co-operative Societies:

A bylaw stated that only Parsis could become members of an organisation that was founded to build homes for residential use. There was also a clause that said members could not move their homes to non-Parsis. The Supreme Court held that a condition that states a property transfer can only happen with the society’s prior approval and to a person who meets membership requirements, and that condition should not be interpreted as an absolute restriction on alienation in violation of Section 48 of the Transfer of Property Act, when an individual voluntarily joins a cooperative society, submits to its bylaws, and agrees to a qualified restriction on their ability to transfer property.

Gayashi Ram v. Shahabuddin:

A clause in the sales agreement stated that the original seller or their heirs were the only people to whom the recipient could transfer the property via sale, gift, or mortgage. This condition is invalid since the court decided that it is void and null.


The rule of caution established in Rosher v. Rosher is very important when it comes to property transactions. To ascertain if restrictions or conditions included in a transfer deed are legitimate, it is imperative to closely examine Section 10 of the Transfer of Property Act, of 1882. It is a factual investigation that is evaluated on an individual basis because there is no objective benchmark for assessment. This subjectivity could lead to unjustified and imprecise conclusions about what differentiates a total constraint from a partial one. Furthermore, the evaluation is made more difficult by the possibility of differing interpretations because the deed’s content serves as the foundation for judgment.

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