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The incorporation of the rule of justice, equity and good conscience in Transfer of Property
Act 1882 is well accepted. One example to that would be S. 10 dealing with “condition
restraining alienation” which establishes the free power of alienation and declares any
absolute restraint from parting interest over the property to be void. Here, the connotation of
absolute or partial restraint has been discussed in various instances.

The case of K.Muniswamy v. K.Venkataswamy1 seems to discuss the right of alienation of the
partition share allotted to parents which are left for intestate succession after the event of their
death. The identifiable issues in this case would be: Whether partition allows absolute
ownership in the shares allotted, whether a family arrangement comes under the purview of
S. 10 of TP Act. And most importantly to concise, whether the partition share allotted to
parents (which are supposedly to pass into intestate succession) confers restricted interest
{given under S.6 (d)} or absolute rights over the property.

At this juncture, the formulation of reasoning to the above questions with reference to the
Karnataka High Court judgment will be apt. Firstly, the incidence of partition as creation of
absolute ownership in each share of partition was established with the ratio decidendi in the
case of Mudegowdara Bakkappa and Anr v. Mallikarjuna and Anr. where it was held that the
recital in the partition deed as to that the share alloted to the father passes on to intestate
succession after the demise of the father does not create any limited estate without any right
of transfer. Thus the legal incident of right of alienation in an absolute estate was upheld.
Secondly, the contention that S.10 does not attract family settlements since they are not
“transfers” under the section as held in Mohammad Raza’s case2 was discussed in accordance
with the ruling in Prithmi Chand Chandu Mat and Ors v. Sundar Das Sital Mal and Ors and
the conclusion was that the creation of absolute restraint on alienation is repugnant to public
policy and would be invalid and unenforceable in general principles of law. However, the
restraint to alienate certain properties but the liberty to enjoy them during the lifetime of
one’s and one’s wife’s lifetime cannot be laid void under S.10 as the conditions are not

The inference of the third issue in the context of K.Muniswamy v. K.Venkataswamy4 is very
relevant. The close examinations of facts emphasis that the partition shares granted were
absolute and not limited or restricted in any sense. The stipulation of the parents’ share
passing into intestate after the demise is not disputed anywhere; however does that mere
stipulation enough to attract S. 6 (d) which states that an interest in property restricted in its
enjoyment to the owner personally cannot be transferred has been dealt. The Court declared
that the partition in this case renders absolute estate to a parent (which has no attraction under
S.6) and the grant can be enjoyed by them in whatever manner they like. In the event of dying

AIR 2001 Kant 246.
2002 (2) ALD Cri 116.
Channabasappa v Shankariah and Ors.
Supra at 1.
intestate, the property will be available for intestate succession if only the property is left by
them and not otherwise. In other words, the property concerned which were transferred
during their lifetime through sale, gift cannot be void and also, restraining any such transfer
would attract S. 10 of TP Act.

There is prevailing ambiguity regarding the decision of whether a condition is absolute or

not. However, this case dealing with the nuances of S. 10 had broaden the scope of transfers
under the act and ensured that the objection of the section is met with the rule of justice,
equity and good conscience.