Conditions restraining alienation of property in a transfer are unenforceable, allowing full execution of property rights despite claims of life interest.

JUDGMENT

K.HARILAL, J.

The appellant is the mother of the respondents herein as well as the wife of late K.R Thomas. The appellant's husband died intestate on 20.10.2004. Thus, the appellant and the respondents inherited the property left behind by the appellant's husband. Subsequently, the appellant executed a settlement deed in favour of respondents 1 to 3 in respect of her fractional right over the aforesaid property, but retained life interest in the property, according to the appellant. Later, respondents 1 to 3 filed O.S 214/2016 before the II Additional Subordinate Court, Ernakulam for partition of the plaint A schedule property including the one covered by the said settlement deed without making the appellant a party to the suit. Thereafter, the case was settled in mediation between the respondents herein and the court below passed a final decree as per the mediation agreement. Later, E.P No.97/2019 has been filed in O.S No.214/2016 by the respondents 4 to 7 herein for the execution of the compromise decree. When appellant came to know about the execution proceedings, she filed claim petition as EA 478/2019 with E.A 479/2019 in EP 97/2019, seeking stay against all further proceedings in execution petition. But the court below dismissed both the applications by order dated 20.7.2019. The legality and correctness of the findings, whereby the court below dismissed the aforesaid Execution Applications are challenged in this appeal.

2. Heard the learned counsel for the appellant and the learned counsel for the respondents.

3. The sole question that arises for consideration in this appeal is whether there is any illegality or impropriety in the findings whereby the court below has dismissed the claim petition put forward by the appellant on the basis of recitals in Ext.A1 settlement deed executed by her. The execution of Ext.A1 settlement deed is not disputed, but it is the case of the appellant that she has a life interest in the said property as per the said settlement deed executed by her in favour of the respondents 1 to 3. Hence, she was a necessary party in OS No.214/2016. But, without impleading her in the suit, the respondents have effected partition in the said suit, on the strength of the settlement deed, in derogation to the life interest reserved in her favour in the settlement deed. So, the decree cannot be executed without adjudicating her right as stipulated in Ext.A1 settlement deed.

4. We have meticulously gone through the copy of Ext.A1 settlement deed produced before the court below. On a reading of the aforesaid settlement deed, as rightly observed by the court below, we also find that there is no reservation of life interest in favour of the appellant, and on the other hand, further alienation of the property is restrained till her death. Is it a legally sustainable condition?. Sec.10 of the Transfer of Property Act reads thus:

10. 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 Budhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.

5. On a reading of the aforesaid provision, it is well discernible that any condition restraining alienation of the property, after conveying absolute title to the transferee, is void. In the instant case, the appellant herein has restrained the transferee from alienating the property till the death of the appellant. Thus, we find that the aforesaid condition in Ext.A1 restraining further alienation is void and not binding on the parties. Therefore, the parties to Ex