Anjali Sharma (advocate) 08 February 2013

Validity of conditional will

Hi,

I came to knew about one interesting matter in which, property was transferred through a registered Will by one father to his six sons. In the said Will while distributing his property in between his six sons, testator made a condtion in the Will, that his eldest son cannot sale, gift or rent the property bequethed to him without the consent of his three brothers ( siblings of eldest son) nor he can alienate that property to his dauthers, and if alienate that property through sale deed that sale deed become invalid.

Now due to some financial crisis eldest son want to sale his property ( property he got through Will) [ Will came into existence 7 years back and none of the son of the testator challenged the same and few of the son already sold their property which they got through Will of their father], but his brothers are not ready to give their consent nor ready to buy that property at market rate.

As per my understanding as per section 10-11 of T.P. Act when any property once transfered to any person than all the rights related to the property shall vest in the transferee (subsequent owner of the property) and any condition imposed therein are invalid.

Now i need some judgment on the issue as registrar is not ready to register the sale deed as per the condition mentioned in the registered Will ( i.e. cannot sale proeprty without the consent letter of eldest son's three brothers).

That person do not have money to go in litigation, so need some judgment to convience the registrar on this issue.

Also need the advise of the experts in this issue, please enlighten me from your precious advise.

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2 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 08 February 2013

I would differ with you Anjali Jee on this, Section 10 reads as follows :-

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 woman (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.

the words absolutely restraining are of profound importance, in this particular case the restraint is not absolute - it is a partial restraint - i.e requirement of concurrence of other heirs to me is a partial restraint.

Be that as it may - even TPA governs only transfers inter-vivos i.e between Living persons. For how wills are governed do have a look at the provisions of Indian Succession Act.

Anjali Sharma (advocate) 12 February 2013

Hi,

Sorry Bharat, kindly go through the query again.

Here issue is not of ownership, here in above issue is when the proeprty is already transfered to one person through Will, and a condition is imposed vide Will that whenever that person have to sale his property he have to obtain the consent of his brothers ( who have no ownership in that proeprty which he got through Will of his father) in order to sale his property . Is that condition valid?

i need some judgment on the issue as registrar is not ready to register the sale deed as per the condition mentioned in the registered Will.