Report No. 66

III. Transfer of Property Act

5.7. Section 10, Transfer of Property Act-Restraint on anticipation.-

The next important provision for our purpose is contained in section 10 of the Transfer of Property Act, 1882, which deals with what is commonly known as a "restraint on anticipation". The section reads as follows:-

"10. Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lesser or those claiming under him:

Provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein."

The general rule is that conditions in a transfer of property which restrain alienation are null and void. This is in the main paragraph of section 10. To this, the proviso is an exception. It should be recalled that at common law, by reason of the doctrine of unity, the wife could have no power of disposition over her property for her separate benefit, independently of her husband. Equity, however, allowed property to be given to trustees in trust for the wife separately. Property so given to trustees for the separate use of the wife could be dealt with by her in equity as if she were a feme sole, that is, as if she were unmarried.