Transfer of Property Act (TPA)
Section 10 vs Section 11: Restraint on Alienation and Direction as to Enjoyment Compared
The two sections sit next to each other, strike down conditions of a similar flavour, and produce the same result for the transfer. That is precisely why they are confused. The difference is one of target: section 10 is about the transferee's power to part with the property, section 11 about his freedom to use it. From that single distinction everything else follows, including the one asymmetry that decides most problems — a partial restraint survives section 10, while no direction as to enjoyment survives section 11.
Figure 1: What the two sections have in common, what belongs to each alone, and a worked example of both
1. The Two Provisions
The operative words Section 10 — a condition or limitation 'absolutely restraining the transferee … from parting with or disposing of his interest in the property' is void, except in a lease for the lessor's benefit, and subject to the married-woman proviso. Section 11 — where an interest is created absolutely but the terms 'direct that such interest shall be applied or enjoyed by him in a particular manner', the transferee may receive and dispose of it as if there were no such direction; except where the direction secures the beneficial enjoyment of another piece of the transferor's immoveable property. |
2. The Comparison
Point | Section 10 | Section 11 |
|---|---|---|
What the condition attacks | The power to alienate — to sell, mortgage, lease, gift or otherwise part with the interest | The manner of enjoyment — how the transferee shall use or apply the property or its income |
Interest required | Any interest transferred; the section does not require the interest to be absolute | Only where the interest is created absolutely; a limited interest may be defined as narrowly as the transferor likes |
Is a partial version good? | Yes. A partial restraint — limited in time, or confining sale to a class — is valid and enforceable | No. Any direction as to enjoyment is void, however modest, unless it falls within the second paragraph |
Principle invoked | Freedom of alienation; property should remain in commerce | Repugnancy; a grant of the whole cannot be qualified by directions about its use |
Exceptions | A lease where the condition is for the benefit of the lessor; the proviso for a married woman who is not a Hindu, Muhammadan or Buddhist | A direction imposed on one piece of immoveable property to secure the beneficial enjoyment of another piece belonging to the transferor |
Enforcement of what survives | A valid partial restraint binds the transferee and those claiming under him | The saved covenant is enforced through section 40 — against a gratuitous transferee, and against a transferee for consideration with notice |
Effect on the transfer | Condition void; transfer stands | Direction void; transfer stands |
3. The Asymmetry, and Why It Exists
Why does the law tolerate a partial restraint on alienation but no partial direction as to enjoyment? Because the two sections answer different objections.
- Section 10 is a matter of degree. The vice is the removal of the power to alienate. A restraint that leaves a real power of disposal has not removed it, so there is nothing to strike down. The section says 'absolutely' for exactly this reason.
- Section 11 is a matter of contradiction. The vice is inconsistency with the grant. A direction that the property be used in one way and not another contradicts an absolute interest whether it is narrow or wide; the degree is irrelevant, because any direction is repugnant to the whole.
- And that is why section 11's exception is different in kind. It is not an exception for mild directions; it is an exception for directions that serve a purpose outside the grant — the protection of land the transferor still owns.
4. Worked Examples
The clause in the deed | Which section, and with what result |
|---|---|
'A transfers his land to B absolutely, but B shall never sell it' | Section 10 — an absolute restraint; void. B takes the land and may sell it tomorrow |
'… but B shall not sell it for three years' | Section 10 — partial; valid and binding |
'… but B may sell only to a member of A's family' | Section 10 — partial, since a class of purchasers remains; ordinarily valid |
'… but B may sell only to A's son C' | Section 10 — confining the market to one person is absolute in substance; void |
'A transfers a house to B absolutely, directing that B shall use it only as a school' | Section 11 — a direction as to enjoyment; void, and B may use the house as he pleases |
'… directing that B shall not carry on any trade in the house, A owning the adjoining shop' | Section 11, second paragraph — saved, since the direction protects A's own neighbouring property; enforceable under section 40 |
'A transfers the house to B for life, directing that B shall reside in it' | Neither section — the interest is limited, and its terms define what B was given |
'A transfers to B absolutely, but the interest shall cease if B becomes insolvent' | Section 12 — a condition of defeasance; void, unless it is a lease condition for the lessor's benefit |
5. A Method for Problem Questions
- Identify the interest created. Absolute, or limited? If limited, section 11 is out at once, and the terms are probably definitional rather than restrictive.
- Identify what the offending clause attacks. Parting with the property points to section 10; using it points to section 11; losing it on insolvency or attempted alienation points to section 12.
- If section 10, measure the degree. Absolute or partial? Ask what power of disposal is left and whether it is worth anything.
- If section 11, look for the neighbouring land. Is the direction there to protect other immoveable property of the transferor? If so it survives, and section 40 tells you against whom.
- State the result for both the condition and the transfer. Under all three sections the transfer stands; only the condition falls. Saying so explicitly is usually worth a mark.
Retention aid Ten is about selling, eleven is about using. Under ten, a little restraint is allowed because the vice is degree. Under eleven, no direction is allowed because the vice is contradiction — and the only escape is that the transferor was protecting his own land next door. |
6. Landmark Cases
📖 Rosher v. Rosher, (1884) 26 Ch D 801 Held: A condition requiring the property to be offered at a fraction of its value before any sale was held void as an absolute restraint on alienation. Ratio: Degree decides a restraint on alienation: what is left of the power of disposal must be worth something. |
📖 Zoroastrian Co-operative Housing Society Ltd. v. District Registrar, Co-operative Societies, (2005) 5 SCC 632 Held: Restrictions contained in the bye-laws of a co-operative society, accepted by a member on joining, were upheld as contractual limitations rather than as restraints imposed under a transfer. Ratio: The source of the restriction matters: a self-imposed contractual limitation is not a restraint under the section. |
7. Related Topics and Provisions
- Condition Restraining Alienation, Section 10 — absolute and partial restraints in detail
- Condition Repugnant to the Interest Created, Section 11 — directions as to enjoyment in detail
- Restraints on Transfer, Sections 10 to 12 — the chapter scheme, including section 12
- Section 40, TPA — the enforcement of a covenant saved by the second paragraph of section 11
- Section 111(g), TPA — forfeiture, where a lease condition saved by section 10 is broken
- What May Be Transferred, Section 6 — restraints imposed by law rather than by the parties