RAJASTHAN HIGH COURT
Mahendra Maheshwari, J.
Nagarpalika Mandal, Sri Durgagarh —Appellant
versus
Bhanwarlal —Respondent
S.B. Civil Second Appeal No. 130 of 2006
Decided on 20.11.2013

IMPORTANT POINT:
If any property is transferred with any, condition or limitation with intend to absolutely restraining the transferee or any person claiming under him from parting with or disposing of his or her interest in the said property, the said condition is void.

Headnote:Transfer of Property Act, 1882—Section 10—Condition restraining alienation—If any property is transferred with any condition or limitation with intend to absolutely restraining the transferee or any person claim-ing under him from pertaining with or disposing of his interest in said property, said conditions would be void—Father of respondent plaintiff purchased suit property in auction held by appellant and registered sale deed was executed in his favour—A condition/note was recorded in sale deed by appellant that transferee shall not sell or mortgage and shall use land only for purposes of “well”—Courts below hold condition in sale deed as void—Second appeal—Whether condition imposed on sale deed violated Section 10 of the Act? Yes.

       Held: The spirit of the provisions of the Section 10 of the Act and a bare reading of he said provision it is abundantly clear that if any property is transferred with any condition or limitation with intend to absolutely restraining the transferee or any person claiming under him from parting with or disposing of his or her interest in the said property, the said condition is void. In other hand, if the property is transferred on lease, then such a condition cannot be imposed. It is also provided by the proviso appended to the said section that if the property is transferred to or for the benefit of the women, such a condition can be imposed so that she shall not be having the power during her marriage to transfer or charge the same of her beneficial interest therein.

       In the present case, admittedly, the transfer of the disputed property made by the sale deed Exhibit 1 is in favour of respondent/plaintiff father but not in favour of any women as provided in the proviso appended in Section 10 and nor does it appear from the sale deed/document Exhibit-1 that the property has been given on lease for the stipulated/specified period for specific purpose. From the perusal of the sale deed Exhibit1, it is also clear that the land in dispute has been transferred in favour to the father of the plaintiff by way of auction held by the Municipal Board on 26.11.1960 on payment of the entire price of the land and accordingly, it is also mentioned that the father of the plaintiff shall be the absolute owner of the property. In this view of the matter, where the absolute ownership rights, title and interest have been transferred in favour of the plaintiff’s father by executing the said sale deed, in such a peculiar situation, it is not justifiable to impose any condition treating the property as has been given on temporary basis on lease.

       Coming to the legal issues raised at the opening the argument and during the course of the hearing by the learned counsel for the parties regarding the absolute sale/transfer of the any property and it being given on lease, for that purpose, it is essential that the nature of the document of transfer executed between the parties is to be seen. Where the ownership interest or other interest of any person arc vesting in the property in question before issuance of the patta by the Board/Body and the said property is surrendered in Board, Body, Institution or Authority with the intention for issuing the patta and after getting the land use changed and thereafter the said property has been transferred by issuing patta by the concerned Body in favour of that person who surrendered his rights in the property, for a specified purpose, in that situation and in the present case where the disputed land has been transferred completely by executing sale deed without specifying any period for its use after receiving the entire price of the land, in either situations, in considered opinion of this Court, it is not justified to cancel the patta/sale deed on account of transfer/sale of the disputed land either in part or whole in any other way. A condition restricting the transfer/sale may be justified to be imposed only in the matters where the ownership rights are vesting in the Body/Board right from beginning or on account of long possession of any person over the land of the Government or Body and the said person is granted permission under any scheme to use and enjoy the property by issuing patta on certain conditions for specified period despite the fact that the said person was having no right in the property since beginning.

       The case in hand is not a case where the sale deed has been cancelled on account of breach of any condition imposed in it by the Board, but facts of the present case are different where the suit has been filed for declaring the condition mentioned in the sale deed executed between the parties imposing absolute restriction upon the transfer of the land as illegal and void to the contrary of Section 10 of the Transfer of Property Act. In this view of the matter, the present case is only related to questioning the imposition of the condition in the sale deed by the Municipal Board, in the suit as also relating to the legality of the judgment passed by the court below holding the condition imposed by the Board as illegal. Thus the facts of the present case are entirely different than in Raghuram Rao case (supra) and therefore it is of no help to the appellant and as held by the Hon’ble Apex Court in the aforesaid decision in respect of the sale deed or lease if the part property is transferred then it is also not considered as breach of condition.

       In view of the aforesaid discussion, position of law and the decision of the Hon’ble Apex Court in Raghuram Rao case (supra), this court is of the considered opinion that both the courts below are justified in declaring the condition imposed in the sale deed (Exhibit 1) as illegal and void, decreeing the suit and dismissing the first appeal treating complete sale of the property looking to the intention of the parties, nature of property and the document executed in that respect. (Paras 17 to 19, 21 & 22)

       Result: Appeal dismissed.