Introduction

• This is a landmark case of absolute restraint covered under Section 10 of the Transfer of Property Act, 1882 (TPA).

Fact

• J.B. Rosher, in his will from 26^th November 1872, made the following arrangements:
  • He left his manor and all his other real estate to his son, Jeremiah Lilburn Rosher, and his descendants.
  • However, if his son or heirs wanted to sell the property while J.B. Rosher's wife was still alive, she had the option to buy it at a fair price, initially set at £3600 or a proportional amount for any part of it.
  • She had the first right to purchase at this price.
• J.B. Rosher also stated that if his son or heirs decided to rent out the property or any part of it, they could do so for up to three years.
• After this period, his wife had the option to live there for more than three years at a nominal rent. If the property was rented for more than seven years, she was entitled to an annual rent of £35, and this rent had to be offered to her first.
• Furthermore, it was a requirement for the son and his heirs to offer the property to the widow first. If she declined, only then could they offer it to others.
• J.B. Rosher passed away on November 26, 1874. The case was brought to court by his widow against his son.

Issue

• Whether according to the true construction of the will, the son and his heirs can sell or to mortgage or charge the property without first offering the widow the option to purchase the premises so intended to be sold or to be mortgaged or charged at the price named in the will or at a proportionate price?
• Whether the provisions and directions contained in the will in reference to the option of purchase were null and void?
• Whether or not, according to the true construction of the will, the son was entitled to let the premises, or any part thereof, for a longer term than three years, or the premises , for a longer period than seven years, without first offering to the widow the option of renting the same respectively as directed by the will?

Observations

• The requirement to sell the property at a price significantly below its actual value, even for a limited duration, constituted an absolute restriction during that timeframe and is therefore considered null and void.
• Selling at 1/5^th of the value, regardless of the property's market worth, is tantamount to a prohibition on selling altogether, akin to a restriction like "you shall not sell during the lifetime of the widow."

Conclusion

• It was concluded that any condition which restraints further transfer absolutely, is null and void.

Notes

Section 10 of TPA: Condition Restraining Alienation

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 lessor or those claiming under him: provided that property may be transferred to or for the benefit of a women (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.