In a Mutation case after the death of the husband a compromise was entered into between the widow and husband's brother that the widow would not make a transfer of the land........

Question: In a Mutation case after the death of the husband a compromise was entered into between the widow and husband's brother that the widow would not make a transfer of the land to any one except her husband's brother and his heirs. The mutation was ordered without any condition. The widow sold the land to an outsider. Can this condition be enforced against the transferee? [UPJS 1982]

Find the answer to the mains question of Property Law only on Legal Bites. [In a Mutation case after the death of the husband a compromise was entered into between the widow and husband's brother that the widow would not make a transfer of the land to any one except her husband's brother and his heirs. The mutation was ordered without any condition. The widow sold the land to an outsider. Can this condition be enforced against the transferee?]

Answer

Section 10 declares a condition void if it absolutely restrains alienation. The restriction on alienation is absolute if it totally removes or limits the right to disposal. Section 10 relieves a transferee of immovable property from an absolute restriction on his right to deal with the property as an owner. This provision applies when property is transferred subject to a condition or limitation that prevents the transferee from disposing of his interest in the property. The restraint must be an absolute restraint in order to render such a condition invalid.

Section 10 only provided for absolute restraints. It is silent on the partial restraints. The restraint is partial if it does not substantially limit the transferee's capacity for alienation but simply limits it to some extent. A partial restraint is enforceable and legal.

In the case of Muhammad Raza v. Abhas Bandi Bibi (2002), where the condition restricted the transferee from transferring the property to strangers, i.e., those not connected to the transferor, the Privy Council ruled that the condition was just a partial restraint that was valid and enforceable. Similarly, when a condition in the sale deed said that the property should not be transferred outside the vendor's family, but the transferee sold it to the vendor's first cousin, the Bombay High Court decided that the condition was a partial restraint and valid. The first cousin belonged to the vendor's stock, according to the court.

So, applying the provision and judicial decisions in the present case at hand where the widow sold the land to an outsider, despite the compromise with the brother-in-law that the widow would not make a transfer of the land to anyone except her husband's brother and his heirs, such alienation is invalid because the partial restraint is legal and enforceable under Section 10 of the Act.