Report No. 66

10.3. Section 8, proviso-Case law.-

The proviso to section 8 was revised in 1929, and its history is interesting. While section 10 of the Transfer of Property Act recognised the validity of a restraint on alienation in respect of married women belonging to certain communities, there was, previously, no statutory provision laying down the law as to whether property in respect of which such a restraint on alienation had been imposed could be attached in execution of a decree in satisfaction of liabilities of the married women. In England, it has been held1 that the property could not be attached. In India, because of (the absence of a specific provision on this point, some High Courts-namely, Calcutta2 and Bombay3-held that a creditor of the married woman could enforce his claim against property which a married woman had been restrained from alienating.

In doing so, these High Courts mainly relied on sections 7 and 8 of the Married Women's Property Act as they then stood. Under section 7, a married woman may sue or be sued in her own name in respect of her separate property, and under section 8 (as it then stood) a person entering into a contract with a married woman, with reference to her separate property may sue and recover against her to the extent of that property. The Madras High Court, on the other hand, held that these two sections of the Married Women's Property Act did not come in the way of the restraint on, alienation being enforced to the extent of preventing attachment also. Accordingly to the Madras High Court, the legislature had not shown any intention to ignore such conditions.

This view was taken by the Madras High Court in two cases4-5. In taking this view, the Madras High Court relied also on the fact that after the Married Women's Property Act, 1874, the legislature had, in section 10 of the Transfer of Property Act, 1882, given statutory effect to the doctrine of restraint on anticipation. According to the Madras High Court, the restraint on anticipation is recognised and enforceable in India and its operation is not affected by section 8 of the Married Women's Property Act. Decrees passed in accordance with section 8 against a separate property, if any, of a married woman in respect of her contracts could not be operative against property which she was restrained from alienating because to hold otherwise would render the restraint upon anticipation absolutely inoperative.

Procedural rules authorising attachments could not also be read as authorising the attachment of property which, by a rule of substantive law-now embodied in section 10 of the Transfer of Property Act-is incapable of being transferred or charged by the beneficiary. The second Madras case6 cites a number of English cases; but it is unnecessary to discuss them here. The principal consideration which weighed with the Madras High Court was that any other view would render the restraint inoperative.

1. Chapman v. Biggs, (1883) 11 QBD 27.

2. Hippolite v. Stuart, 1885 ILR 12 Cal 522.

3. Cursetji v. Rustomji, 1887 ILR 11 Born 348.

4. Mantal and Manta! (in re:), 1895 ILR 18 Mad 199.

5. Goudoin v. Venkatasa Modally, 1907 ILR 30 Mad 377 (378).

6. Goudoin v. Venkatasa Modally, 1907 ILR 30 Mad 377 (380).