ANALYSIS OF ROCHER V.

ROCHER

Submitted by:

Submitted To:

Shubh Dixit

Rosmy Joan

B.A. L.L.B

Faculty of Law

Fourth Semester

NATIONAL LAW UNIVERSITY, JODHPUR

WINTER SESSION
(JANUARY-MAY 2016)

INTRODUCTION
Rosher v. Rosher deals with partial and absolute restraints in alienation of property. It is one
of the leading case which is cited till date in Indian judgements as well. Being a strong
authority on this highly debated area provides much needed clarity.
Ownership of the property carries with it certain basic rights, such as a right to have the title
to the property, a right to possess and enjoy it to the exclusion of everyone else, and a right to
alienate it without being dictated to, save in accordance with a provision of law. An absolute
right to dispose of the property indicates that the owner can sell it for consideration or can
donate it for religious or charitable purposes he may gift it to anyone, mortgage it or put it up
for lease. Save with the help of law, no other person can interfere with this power or right of
the owner or dictate to him, what should be the manner of alienation, should he alienate or
not, or even what kind of use it should be put to. In short, this right of alienation, that is one
of the basic rights of the owner, cannot be unreasonably encroached upon by anyone through
a private agreement. This general rule is applicable despite there being an express contract to
the contrary, and prevents the transferor from controlling the power of alienation of the
transferee once the interest in the property is transferred.
The extent to which a person transferring real or personal property may limit its subsequent
disposition by the transferee has for centuries been a problem troubling the courts.
Restrictions upon the grantees right to transfer the property, at any time, to whomsoever he
may choose, and in whatever manner he may select, are called restraints on alienation.
Recent developments in the field of real property security law have rekindled an interest -in
one of the most ancient and important battlegrounds of the law-the extent to which the law
should protect free alienability of real property and strike down attempts to restrict or
penalize an owners ability to transfer his property. The context in which the present-day
struggle arises is a far cry from the feudalistic society existing in England when the restraints
on alienation doctrine was developed, yet the materials which follow evidence quite clearly
that the judicial role in articulating and enforcing the doctrine is beginning anew.

FACTS AND BACKGROUND OF THE CASE

J. B. Rosher (deceased) had a manor which had Trewyn House and Lower Trewyn
collectively called Trewyn Manor. Then he also had estates in the counties of Monmouth and
Hereford. By a will dated 26th November 1872 declared that his manor and all his other
estates will go to his son Jeremiah Lilburn Rosher. In his will, it was mentioned that if the son
decides to sell the entire property, that is the manor and the estates of the two counties, he
should first offer it to his mother (J. B. Roshers wife) for 3000 pounds only as a whole, or at
a proportionate price for any part thereof. Even if his son tries to let the Trewyn House for a
period of more than 3 years, the mother will have the option of letting it for any period of
more than 3 years and an annual rent of 25 pounds will be given to her. Also if he rents out
Lower Trewyn for a period of more than 7 years, the mother will have an option to rent it out
for more than 7 years and will receive the rent of 35 pounds an year.
After his death, the widow brought the suit against the son. The special case was stated by
consent for the opinion of the court, pursuant to Order XXXIV, of the Rules of Court, 1875.
The case stated that the real selling value of the manor and the estate Trewyn, and all the
other estates of the testator in the counties of Monmouth and Hereford was, at the date of the
will and time of the testators death, 15,000 pounds and upwards. The real letting value of the
Trewyn House and Lower Trewyn was 100 pounds an year.

ISSUES BEFORE THE COURT

The widow is claiming that the son cannot sell the house or rent it without her consent and
with procedure prescribed in the will. The son however claims that the conditions are
restrictions on alienation of property and such conditions are void and thus he has the right to
transfer the property further.
In this special case, there were two questions before the court:
1. Whether or not, according to the true construction of the will, the son was entitled to
sell or to mortgage or charge respectively the estates devised to him by the will, or

any part thereof, without first offering to the widow the option to purchase the
premises so intended to be sold or to be mortgaged or charged at the price named at
the price named in the will , or at a proportionate price named in the will, or at a
proportionate price according to the quantity dealt with, as the case might be, or
whether the provisions and directions contained in the will in reference to the option
of purchase were null and void.
2. Whether or not, according to the true construction of the will, the son was entitled to
let the premise of Trewyn House or Lower Trewyn without first offering to the
mother or the conditions in relation to letting the premise are either void or has no
effect.

ARGUMENTS STATED BY THE COUNSELS

The counsel for the widow stated that the limitation on alienation of property is a valid one.
The son is only bound to these conditions 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
preventing that. He then quoted In re Macleay1 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 alienation but only contemplates a situation
and provides a procedure to alienate the property in that case.
The counsel for the son contended that the condition is totally void as its a complete restraint
on the sale of the property. He states that it okay to have a situation where the property can
only go to one person or a group of persons. But the vice is that there is a restraint of
consideration. The fixed price, which is much less of the actual market price of the property
at the time of writing the will, restraints the possessor from getting a full simple fee for the
property.

1 Law Rep. 20 Eq. 186

OUTCOME OF THE CASE

The court decided that the restraint is a complete restraint and thus will be void. In his words
I mean to treat it as if it has been, During the life of the widow you shall not sell, because
to compel him to sell the estate at only one-fifth of the price and give away four-fifths, to my
mind, is equivalent to restraint upon selling at it.
The court then said that in the Bragg and Tanner case 2 the Chief Justice held that any restraint
whatsoever on the consideration for sale of property is void as it will circumvent the spirit of
the law.

ANALYSIS AND APPLICATION OF THE CASE

Every owner of a property, who is competent to transfer, may transfer his property either
unconditionally or with certain conditions. Conditions are limitations or restrictions on the
rights of the transferees. Transfers which are subject to restrictions are known as conditional
transfers. These conditions may be either conditions precedent or conditions subsequent.
Conditions precedent is put prior to the transfer and the actual transfer depends upon
compliance of those conditions. Subsequent conditions are those conditions which are to be
fulfilled after the transfer. These conditions are those conditions which are to be fulfilled after
transfer. These conditions affect the rights of the transferees after transfer.
This provides that if a property is transferred subject to a condition or limitation restraining
the transferees right of parting with or disposing his interest in the property absolutely, then
such a condition is void. This general rule is referred to as the rule against
inalienability. The rule against inalienability gives effect to the overarching principle behind
the Transfer of Property Act that, generally, all property should be transferable. Therefore,
any condition that restrains alienation is considered void. The transferee can ignore such a
condition and continue his enjoyment of the transferred property as if such a condition did
not exist in the first place.

2 (19 Jac. 1) (1)

However, while an absolute restraint is void, a partial restraint may not be. For instance, a
partial restraint that restricts transfers only to a class of persons is not invalid. However, if the
transfer is restricted to being allowed only to specific individuals, then it is an absolute
restraint and hence, void.
Categorisation of restraints
Since alienation of property is the sole prerogative of the owner of the property, he is
empowered to sell it at any point of time, for any consideration, to nay person, and for any
purpose. There are certain integral components of the very term alienation and include
selection purely at the discretion of the transferor or the transferee and the time or
consideration for the transfer. A restraint on alienation, thus would include a condition that
dictates to him when to sell it, to sell it at how much consideration, or how to utilise the
consideration; to whom to sell or for what purpose he should sell. These restraints can appear
in the following ways:

Restraints on transfer for a particular time

Restraints directing control over consideration/money;

Restraints with respect to persons/transferee; and

Restraints with respect to sale for particular purposes or use of property

Absolute restraint
Absolute restraint refers to a condition that attempts to take away either totally or
substantially the power of alienation. Section 10 says that where property is transferred
subject to a condition or limitation which absolutely restraints the transferee from parting
with or disposing of his interest in the property is a void condition. Restraint on alienation is
said to be absolute when it totally takes away the right of disposal. In the words of Lord
Justice Fry, from the earliest times, the courts have always learnt against any devise to
render an estate inalienable.
Section 10 relieves a transferee of immovable property from an absolute restraint placed on
his right to deal with the property in his capacity as an owner thereof. As per section 10, a
condition restraining alienation would be void. Section applies to a case where property is

transferred subject to a condition or limitation absolutely restraining the transferee from

parting with his interest in the property. For making such a condition invalid the restraint
must be an absolute restraint.
Two persons purchased securities in their own names with the money belonging to a third
person. And on his instructions they deposited the securities in the name of that person and
also the interest accruing on them in that persons account. The securities carried the
stipulation that they were not to be transferred. In order to wipe out his liability to another
person, that third person tendered the securities to his creditor by way of satisfaction to hold
them as a beneficiary. It was held that from the very beginning a beneficial interest was
created in favour of the person with whose monies the securities were purchased and,
therefore, his beneficial interest was transferable because otherwise the whole transaction
would have been hit by section 10.
Condition imposing absolute restraint on the right of disposal is a void condition and has no
effect. For example, a person makes a gift of a property to another person (transferee) with a
condition that he will not sell it. This condition imposes an absolute restraint. If the transferee
sells that property, the sale will be valid because conditions imposing absolute restraint are
void. A made a gift of a house to B with a condition that if B sold the house during the
lifetime of As wife, she should have an option to purchase it, for Rs. 10,000. The value of the
house was Rs. 10,000. This was held to be having the effect of absolute restraint and was
void. The provision of law against absolute restriction on alienation is founded on the
principle of public policy, namely that there should be free transferability of property. A
transfer of property for construction of a college contained a condition that if the college was
not constructed; the property would not be alienated. Rather it would be re-conveyed to the
person transferring it. The condition was held to be void and, therefore, not capable of being
enforced.
Where the settler intending to create a life estate in favour of his son-in-law M, handed over
the title-deeds of the said property to M indicating that he had divested himself of all rights in
the property but imposed absolute perpetual restraint on alienation, it was held that the
restraint was void since the transfer was an absolute transfer in favour of M. Under the
provisions of section 10, the sale deed made by the heirs of M in favour of appellants was a
valid sale because the heirs were entitled to ignore the restraint on alienation and deal with
the property as absolute owners.

The condition restraining lessee from alienating leasehold property is not illegal or void.
Partial restraint
Section 10 has only provided for absolute restraints. It is silent about the partial restraints.
Where the restraint does not take away the power of alienation absolutely but only restricts it
to certain extent, it is a partial restraint. Partial restraint is valid and enforceable. In words of
Sir George Jesel, the test is whether the condition takes away the whole power of alienation
substantially; it is question of substance and not of mere form. You may restrict alienation
in many ways, you may restrict it by prohibiting it to a particular class of individuals or you
may restrict alienation by restricting it to a particular time.
A total restraint on right of alienation is void but a partial restraint would be valid and
binding. This rule is based on sound public policy of free circulation.
A restriction for a particular time or to a particular or specified person has been held to be
absolute restriction. A compromise by way of settlement of family disputes has been held to
be valid in Mata Prasad v Nageshwar Sahai3, although it involved an agreement an
agreement in restraint of alienation. In this case, dispute was as to succession between a
widow and a nephew. Compromise was done on terms that the widow was to retain
possession for life while the title of the nephew was admitted with a condition that he will not
alienate the property during the widows life time. The Privy Council held that the
compromise was valid and prudent in the circumstances of the case.
While an absolute restraint is void, a partial restraint may not be. For instance, a partial
restraint that restricts transfers only to a class of persons is not invalid. However, if the
transfer is restricted to being allowed only to specific individuals, then it is an absolute
restraint and hence, void. How is it determined if a restriction is absolute or partial? In order
to determine whether a restriction is absolute or partial, one must look at the substance of the
restraint and not its mere form. Ordinarily, if alienation is restricted to only family members,
the restriction is valid. However, where in addition to that restriction, a price is also fixed
which is far below market value and no condition is imposed on the family members to
purchase, then the restraint is an absolute one and hence, void, although in form, it is a partial

3 (1927) 47 All 484

restraint. Even if such a substantially absolute restriction is limited by a time period that is, it
applies for a specific time period only, it remains void.

Other relevant cases

In Gayashi Ram v. Shahabuddin4, the sale deed contained a clause that the transferee would
not transfer the property to any person either by way of sale, gift or even mortgage except the
transferor or his heirs. The court held that this condition is void and therefore invalid.
In Manohar Shivram Swami v. Mahadeo Guruling Swami 5 , A and B were first cousins. A
made a will of his property in favour of B. On As death, B acquired the title of the property
and sold it to C, who was also the brother of A. The sale deed contained a condition that if C
wanted to sell the property, he would sell it to the sellers Jangam (caste) family and not to
anybody else. The court held that the condition incorporated in the sale deed absolutely
restrained C from parting with his interest in the property and therefore was void. The court
upheld the validity of sale affected by C. This decision of Bombay High Court comes as a
surprise as the condition here in fact was not to sell out of the family, which in a number of
cases has been held to be a partial restraint, and binding on the parties.
In Zoroastrian Co-operative Housing Society Ltd v. District Registrar Co-operative
Societies6, a society with the object of constructing houses for residential purposes had a bye
law which stated that only Parsis can be members of the society. There was also a condition
that no member could alienate the house to non-parsis. The Supreme Court held that when a
person accepts the membership of a co-operative society by submitting himself to its byelaws
and places on himself a qualified restriction on his right to transfer property by stipulating
that same would be transferred with prior consent of society to a person qualified to be a
member of the society it could not be held to be an absolute restraint on alienation offending
Section 10 of the Transfer of Property Act

4 AIR 1935 All 493

5 AIR 1988 Bom 116
6 AIR 2005 SC 2306

In K Muniswamy v. K Venkataswamy 7, a family partition was effected although one

condition in the partition deed provided that the mother and the father were to enjoy the
properties only during their lifetime and after their deaths, this property was to be partitioned
equally amongst the two sons. This creation of life interest meant that the parents had no
power to alienate the property during their lifetime. The parents sold their property to one
son. Other son challenged the validity of sale. The court held that a restriction prohibiting
them absolutely from transferring the property amounted to an absolute restraint on alienation
and was therefore bad in eyes of law

The transfer of property act, 1882 governs transfer of property. The scope of application of
the transfer of property inter vivos. However, the application of this principle has been stated
to extend to transfer of property by testamentary succession etc. A transfer of property may be
a transfer of the right to enjoyment of property only or a right of alienation or a transfer of
property with all rights.
Any stipulation or condition in the deed which transfers any right or any interest within the
property. Such right or interest inherently contains a right to dispose of such right or interest.
Further, when adjudging whether the right of disposal has been restricted or not, it is essential
that it Is not to be judged from the form of the transfer but from what is the substance of the
transaction.
On a true construction of the transfer deed, the substance may be determined. The question of
fact would be whether any condition or limitation partially or wholly restricts the interest
holder from disposing of his interests. The conditions or limitations would be held a nullity if
there has been a complete restriction on the right to disposal of property or interest within the
same.
Rosher v. Rosher in the absence of any statute laid down a principle grounded on foresight
and keen common sense. A right of enjoyment or a right of alienation cannot be viewed from
a strict and narrow perspective. A Holistic view is to be preferred. Essentially the right as
encapsulated by Rosher v. Rosher is a corollary right. A right which is corollary to the right of
enjoyment.

7 AIR 2001 Kant 246

CONCLUSION
The rule outlined in Rosher v. Rosher is one of prudence and its relevance in the transfer of
property is immense. The application of Section 10 of the transfer of Property Act, 1882 is
crucial to understand as to what conditions or limitations stipulated in the transfer deed will
be held valid. Though, in the absence of an objective standard to judge the same, since it is a
question of fact t be determined on a case by case basis, it may lead to arbitrary and obscure
propositions as to what essentially constitutes a total restraint as compared to a partial
restraint. Further, this is accentuated by the fact that a deed is judged by its substance and
varying interpretations as to substance may arise