BY: Sakshi Jha, Symbiosis Law School, Hyderabad, Semester IV


The laws governing the transfer of property between individuals in India are outlined in the Transfer of Property Act, 1882. It describes the steps involved in completing a property transfer as well as the circumstances under which one may occur. The case of Rusher v. Rosher addresses both total and partial property alienation restrictions. It is one of the most prominent cases that Indian court rulings have referenced to this day. 


Here, the testator devised an estate for his son (or his heirs), subject to the requirement that, should he wish to sell, his wife would have the option to buy the estate at £300 for the entirety and at a reasonable price for any portion of it, while the testator was still living. 

At the time of the will’s creation, the property was worth £15,000. She may therefore choose to buy the home for one-fifth of its worth.Additionally, the will stipulated that the son or any of his heirs would only be able to rent out the estate for a maximum of three years. Following the end of that time frame, the widow would be able to use the space for longer than three years for a set, modest rent. She was allowed to occupy the property for a set rent if the tenancy lasted more than seven years. 

Therefore, the son or his heirs had a duty to offer the widow the property first, and only after she turned it down could they rent it out to other people.


  1. According to the true construction of will, can the sons sell, mortgage or lease the property without offering it to the widow first.
  2. Were the instructions and clauses pertaining to the purchase option in the will deemed invalid?
  3. Whether or not the son was entitled to rent the premises, or any portion of them, for a term longer than three years, or the premises for a longer period of time than seven years, based on the true interpretation of the will, without first giving the widow the opportunity to rent the premises as specified by the will?


The court noted that the effect of a constraint—rather than the wording used to establish the condition—determines whether it is absolute or merely partially so. 

It was decided in this case that a clause requiring the property to be sold for even a brief period of time at one-fifth of its worth constituted an absolute constraint at that time and was therefore null and void. The act of discarding anything at a fifth of its value, regardless of its potential market value, is akin to placing restrictions on selling at all (i.e., “during the widow’s lifetime, you shall not sell”). As a result, it rose to prominence as one of the Transfer of Property Act’s landmark cases.


In property law, the Rosher v. Rosher ruling set a significant precedent. It made clear that any clause that outright prohibits future transfers is void. This decision is important for determining the extent and bounds of testamentary freedom, especially when it comes to setting restrictions on the alienation of property. When interpreting Section 10 of the Transfer of Property Act—which deals with restrictions on alienation—the case acts as a cornerstone.


The landmark ruling in Rosher v. Rosher elucidates the degree to which testamentary directives can place limits on the transfer of property. It emphasises the legal doctrine that, although a testator has a great deal of discretion over how their property is used and transferred, that discretion is not unrestricted and is subject to the law’s ban on unreasonable limitations on property alienation.

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