Section 10 of Transfer of Property Act, 1882: Condition Restraining Alienation

Section 10 - Condition restraining alienation (statutory text)

Meaning and scope of Section 10

Alienation means parting with or disposing of an interest in property, for example by sale, gift or other legally recognised transfer. An absolute restraint is a condition which, in substance, completely prevents the transferee or a person claiming through the transferee from disposing of that interest. Under Section 10, such a condition is void, subject to the statutory exceptions. Ordinarily, it is the offending condition that is void, not necessarily the transfer itself.

The rule reflects the distinction between transferring an interest in property and attempting to make that interest wholly inalienable. The actual effect of a clause, rather than its label, must be assessed. A limited or partial restriction is not automatically void merely because it regulates transfer; its validity depends on its substance, the rights created and other applicable laws.

Exceptions and qualifications

1. Lease conditions benefiting the lessor

Section 10 expressly excepts a lease where the restriction is for the benefit of the lessor or those claiming under the lessor. For example, a lease may validly prohibit assignment or subletting without the lessor's consent, subject to the lease terms and governing law. See Section 108(j) of the Transfer of Property Act for the general rights of a lessee, subject to contract or local usage.

2. Statutory proviso concerning certain married women

The text of Section 10 also contains a historically worded proviso concerning property transferred to or for the benefit of a woman not being a Hindu, Muhammadan or Buddhist, restricting her power during marriage to transfer or charge the property or beneficial interest. This proviso must be read in its precise statutory terms and alongside other applicable personal, succession and property laws; it is not a general rule applying to all married women.

3. Other laws and restrictions

Section 10 does not remove independent statutory restrictions under land, tenancy, revenue or other special laws. A restraint arising directly from applicable legislation must be distinguished from a condition imposed by a private transfer instrument.

Practical examples

• Gift with a complete ban on sale: A transfers land to B but declares that B can never sell, gift or otherwise transfer it. The absolute restraint is generally void under Section 10.
• Lease with a no-assignment clause: A leases a building to B on a condition that B must not assign the lease without A's permission for A's benefit. The lease exception may apply.
• Qualified restriction: A clause requiring an initial offer to a specified person must be evaluated on its real operation and the applicable law; it is not automatically valid or invalid solely because it is framed as a pre-emption clause.

Related provisions

Section 5 defines a transfer of property. Section 6 identifies interests that cannot be transferred. Section 11 deals with directions repugnant to the interest created, while Section 12 concerns certain conditions terminating an interest on insolvency or attempted alienation. These provisions address related but distinct legal situations.

Official legal resources

Consult the India Code database for the Transfer of Property Act, 1882 (Act 4 of 1882), and the Legislative Department, Government of India for legislative resources. Check applicable state amendments and special laws for any particular transaction.