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TOPIC:- EXCEPTIONS TO SECTION 11

OCTOBER 2017

CNLU, PATNA

NYAYA NAGAR, MITHAPUR, PATNA

SUBMITTED BY :- SUBMITTED TO :-

SUSHMITA KUMARI SUBMITTED TO PARTIAL

ROLL NO.- 1569 FULFILMENT OF COURSE

BA.LLB PROPERTY LAW FOR TH-

3rd SEMESTER E COURSE BBA.LLB. Hons.

TO THE Dr. P.K.V.S. Rama


Rao

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DECLARATION PAGE

I here-by declared that project work reported in the BA.LLB(Hons.) entitled


EXCEPTIONS TO SECTION 11 submitted by me at CHANAKYA NATIONAL
LAW UNIVERSITY is an authentic record of my own work, carried out under the
supervision of Dr. P.K.V.S. RAMA RAO for the partial fulfillment of the course
PROPERTY LAW. This project work is not submitted by me elsewhere for any other
degree/diploma certificate in any institute or university.
I am fully responsible for the contents of my project report.

SUSHMITA KUMARI

ROLL NO.-1569

BA.LLB

3rd SEMESTER

DATE- 9/10/17

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ACKNOWLEDGE PAGE

I owe the present accomplishment. Any project completed or done in isolation is unthinkable.
This project, although prepared by me, is a culmination of efforts of a lots of people.

Firstly, I would like to thank our teacher Dr. P.K.V.S RAMA RAO for her valuable
suggestions towards the making of this project.

Further to that, I would also like to express my gratitude towards my seniors who were
a lot of help for the completion of this project.

The contribution made by my classmates and friends are, definitely, worth mentioning.

I would like to express my gratitude towards my family members help also.

Last, but far from the least, I would express my gratitude towards the Almighty for
obvious reasons.

THANK YOU.

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CONTENT PAGE

Contents
DECLARATION PAGE ....................................................................................................................... 2
ACKNOWLEDGE PAGE .................................................................................................................... 3
1. INTRODUCTION ....................................................................................Error! Bookmark not defined.
2. OBJECTIVE OF THE STUDY .................................................................................................................. 5
3. HYPOTHESIS ....................................................................................................................................... 5
4. RESEARCH METHODOLOGY ............................................................................................................... 5
5. SOURCES OF DATA COLLECTION:- ..................................................................................................... 5
6. LIMITATION & SCOPE OF THE STUDY................................................................................................ 5
7. TENTATIVE CHAPTERISATION ............................................................................................................ 6
1) INTRODUCTION.............................................................................................................................. 6
2) RESTRAINT ON MODE OF ENJOYMENT .......................................................................................... 7
3)TRANSFER OF ABSOLUTE INTEREST................................................................................................. 9
4)EXCEPTION..................................................................................................................................... 10
5)TULK V. MOXHAY ........................................................................................................................... 13
CONCLUSION........................................................................................................................................ 15
BIBLIOGRAPHY ...................................................................................................................................... 15

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1. OBJECTIVE OF THE STUDY
To make descriptive and analytical study about the provision of doctrine of
feeding grant by estoppel.
Understand the applicability of feeding grant by estoppel.
To provide adequate information about feeding grant by estoppel.

2. HYPOTHESIS
The doctrine of feeding grant by estoppel is based on law of estoppel.

3. RESEARCH METHODOLOGY
Doctrinal method :- Books, internet, journals, judgements etc.
Researcher is mainly rely on library based study.

5. SOURCES OF DATA COLLECTION:-


Primary sources- judgements of apex court, provisions of Indian penal code.
Secondary sources- news paper, books, journals etc.

6. LIMITATION & SCOPE OF THE STUDY


Lack of time
Territorial limitation
Finance
For further research this can be a means of doctrinal research.

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INTRODUCTION
Ownership of the property carries with it certain basic rights, such as a right to have the title to
the property, a right to possess and enjoy it to the exclusion of everyone else, and a right to
alienate it without being dictated to, save in accordance with a provision of law. An absolute
right to dispose of the property indicates that the owner can sell it for consideration or can
donate it for religious or charitable purposes he may gift it to anyone, mortgage it or put it up
for lease. Save with the help of law, no other person can interfere with this power or right of
the owner or dictate to him, what should be the manner of alienation, should he alienate or not,
or even what kind of use it should be put to. In short, this right of alienation, that is one of the
basic rights of the owner, cannot be unreasonably encroached upon by anyone through a private
agreement. This general rule is applicable despite there being an express contract to the
contrary, and prevents the transferor from controlling the power of alienation of the transferee
once the interest in the property is transferred.1

The extent to which a person transferring real or personal property may limit its subsequent
disposition by the transferee has for centuries been a problem troubling the courts. Restrictions
upon the grantees right to transfer the property, at any time, to whomsoever he may choose,
and in whatever manner he may select, are called restraints on alienation.

Recent developments in the field of real property security law have rekindled an interest -in
one of the most ancient and important battlegrounds of the law-the extent to which the law
should protect free alienability of real property and strike down attempts to restrict or penalize
an owners ability to transfer his property. The context in which the present-day struggle arises
is a far cry from the feudalistic society existing in England when the restraints on alienation
doctrine was developed, yet the materials which follow evidence quite clearly that the judicial
role in articulating and enforcing the doctrine is beginning anew. Section 11 of the Transfer of
Property Act deals with repugnant conditions. Repugnant conditions are those that are
inconsistent with the nature of the interest transferred. Section 11 prohibits the imposition of
any condition directing the transferee to apply or enjoy in a particular manner, any interest that
is transferred absolutely in a particular manner. Such conditions or directions are void and the
transferee is entitled to receive property as if such a condition did not exist in the first place.
The transfer itself is, however, not invalidated. These conditions are inconsistent with the
nature of the interest transferred. Therefore, they are called repugnant conditions.2

Illustration: A and B enter into a sale deed for a piece of land. The terms of the sale deed
provides that the piece of land should be used for the purposes of starting a factory for the
manufacture of jute textiles only. This condition is invalid. B can enjoy the land in any manner
that he chooses and the sale deed itself continues to be valid.

Thus, no life interest can be created in favor of a vendee in a contract of sale. A gift restraining
enjoyment is void. Payment of certain amount to the vendor out of the profits of property by

1
https://www.lawctopus.com/academike/restraints-on-transfer/ (last visited 19/9/17)
2
https://www.legalcrystal.com/.../name:transfer-of-property-act-1882-section-11-restric... (last visited 19/9/17)

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way of rent after sale is illegal.[xxxvi] A direction in restraining of partition in a gift or will is
void even thought the restriction is limited in time to the sons attaining majority.

The exception to this rule according to the second paragraph of Section 11 is that if the
transferor owns another piece of immovable property, he may, for the benefit of that property,
impose a restriction on the enjoyment of that by him. In such a case, the restriction on the
enjoyment of the interest would be valid and saved by Section 11 of the Transfer of Property
Act.

Positive and negative conditions or covenants:

Conditions or directions that the transferor may impose upon the transferee to secure better
enjoyment of his own property can be of two types: positive or affirmative conditions, i.e., they
direct the transferor to do something and negative conditions, i.e., they restrain the transferee
from doing a particular thing. These conditions are called covenants.3
For example, A transfers a land to B, and puts a condition, that he would leave open a four feet
wide space adjoining As own land, and would not build upon it. On this land there is also a
one-foot open drain, and the second condition in the transfer deed directs the transferee to
maintain this drain by carrying necessary repairs from time to time. The first covenant, that
requires the transferee not to build upon four feet wide land, is a negative covenant as it is in
nature of not to do a particular thing, while the second condition or covenant is a positive
one, as it requires the transferee to do a particular thing, i.e. to maintain the drain in proper
shape and to carry necessary repairs.

RESTRAINT ON MODE OF ENJOYMENT


In India, transactions for purchasing/selling/transferring/creating an interest in immovable
property and transmission of title in respect of a property are governed by several laws, rules
and regulations. 4 As matters relating to land fall within the legislative powers of State
Governments under the Constitution of India, these may differ from state to state. The Transfer
of Property between any two parties is governed by the Transfer of Property Act, 1882. Both
these parties need to be alive for transfer under the Act. In case of transfer of a property of a
deceased person, Succession Laws as per the religion of the deceased will be applicable.
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 lease, under Section 10
of the Act. Also, where, on a transfer of property, under Section 11, an interest is created
absolutely in favour of any person, but the terms of the transfer direct that such interest shall
be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose
of such interest as if there were no such direction.
Restrictions repugnant to interest created (where interest is created absolutely in favor of a
person, but the terms direct that the transfer will be applied or enjoyed in a particular manner)

3
www.manupatrafast.com/articles/PopOpenArticle.aspx?ID...90fb...%20Property (last visited 19/9/17)
4
shodhganga.inflibnet.ac.in/bitstream/10603/31643/13/13_chapter%205.pdf (last visited 19/9/17)

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has to be seen whether it is valid or not. Absolute restraint on enjoyment is a void condition
whereas a condition to leave a right of a way is a valid one. Partial restrains can be divided into
positive and negative covenants. Positive covenants direct the transferor to do something and
it imposes a financial burden on him, like maintaining the front lawn as a garden and not build
on it whereas negative covenants restrain the transferor from doing a particular thing but does
not impose a financial burden on him like leaving space for light and air to come in or
maintaining the wall for privacy to be protected.

Ownership of the property carries with it certain basic rights, such as a right to have the title to
the property, a right to possess and enjoy it to the exclusion of everyone else, and a right to
alienate it without being dictated to. Section 10 to 18 of the Transfer of Property Act, 1882
contain the first set of rules that have to be observed while alienating property.

Section 11 talks about restriction repugnant to interest created. The difference between Section
10 and Section 11 is that the former deals with a case of an absolute prohibition against
alienation of an interest created by a transfer and the latter deals with the absolute transfer of
an interest followed by a restriction on its free enjoyment. That is, under Section 10, whatever
interest was conveyed, large or small, limited or unlimited, such interest cannot be made
absolutely inalienable by the transferee. Under Section 11, when once an interest has been
created absolutely in favour of a person, no fetters can be imposed on its full and free
enjoyment. Where, however, the interest created is itself limited, its enjoyment must also be
limited; for example, when a widows interest under Hindu Law is granted to a woman, a
direction that she should enjoy only the usufruct without either encumbering the corpus or
committing acts of waste would be valid. But a condition in a deed depriving a co-owner of his
or her claim to partition in respect of the common property would be bad, because, the right to
partition is an essential ingredient of co-ownership.

The principle is that a condition will be void, if it detracts from the completeness of the very
interest created; it will be good if it is consistent with such interest. Thus, where; an absolute
estate is granted, but a condition is imposed on the alienee requiring him to reside in a particular
place, the condition is not valid and cannot be enforced. 5

The second paragraph of Section 11 relates to the rights of a transferor as against the transferee.
These are:

To enforce the performance of a positive covenant

To restrain the breach of a negative covenant.

After the 1929 amendment, although affirmative and negative covenants are valid as between
a transferor and a transferee, only negative covenants can be enforced against a transferee from
the first transferee by reason of Section 40. 6

5
dev.comcom.nl/transfer_of_property_act_1882_pdf_notes.pdf(last visited 19/9/17)

6
www.wipo.int/edocs/lexdocs/laws/en/pk/pk011en.pdf(last visited 19/9/17)

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The first and third paragraphs of section 40 may be compared with second paragraph of section
11. While the latter deals with the transferors rights against the transferee, this section deals
with the right against the transferee from the first transferee. The 1929 amendment confined
the section to negative or restrictive covenants.

The law in England was that in the case of a covenant between the vendor and the vendee of a
land, its benefit ran with the land of the covenantee but its burden did not run with the land of
covenantor; but if the covenant was negative on the user of the land by the covenantor, it will
be enforced against the covenantors transferee if he had notice of the covenant or the transfer
was gratuitous. And in determining whether a covenant was positive or negative it is the
substance of the covenant and not its form that matters. [27] This is the law in India also after
1929 amendment. The reason for the rule is this: If a person sells land with a covenant he would
not get full value. Why should a purchaser from him be then allowed to ignore the covenant
and sell it free of the covenant and get a better value? Incidentally, a purchaser with notice from
a transferee without notice is not bound by the covenant.7

ILLUSTRATION

(1) A owns two properties X and Y, and sells X to B. A imposes restriction on B that he shall
for the more beneficial enjoyment of Y, keep open a portion of X enjoyment of Y, keep open
a portion of X adjoining Y and not build on it. The restriction is valid and enforceable against
B.

TRANSFER OF ABSOLUTE INTEREST


Section 11 is applicable only where an absolute interest or ownership has been transferred.
Where ownership is transferred, the transferee gets ownership right which includes the right of
enjoyment of property as he likes. Sale, exchange or gift is a transfer of ownership or absolute
interest. A condition or direction in a sale, exchange or gift that the transferee can or cannot
use or enjoy the property in a particular manner is repugnant to the ownership rights and is,
therefore, void.

Section 11 says that, Where, on a transfer of property, an interest therein is created absolutely
in favor of any person, but the terms of the transfer direct that such interest shall be applied or
enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such
interest as if there were no such direction.

Where any such direction has been made in respect of one piece of immovable property for the
purpose of securing the beneficial enjoyment of another piece of such property, nothing in this
section shall be deemed to affect any right which the transferor may have to enforce such
direction or any remedy which he may have in respect of a breach thereof.8

7
https://www.theguardian.com/notesandqueries/query/0,,-204039,00.html(last visited 19/9/17)

8
https://maheshspeak.com/2016/02/05/different-types-of-transfer-of-property/(last visited 19/9/17)

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Explanation- If a property is transferred absolutely in favor of the transferee, then any condition
or terms of transfer, restricting the full enjoyment of the property (i.e.) repugnant to the interest
created, then the transferee is empowered under sec 11 of TP Act to receive and dispose the
property as if there was no such condition.

The section is not applicable where he transfer is merely of partial interest in the property. In
the transfer of partial or limited interest, there is no transfer of ownership. For example, lease
is a transfer of partial interest in which the lessee gets only the right of enjoyment of the
property not its ownership. Condition imposed by a lessor restraining the mode of enjoyment
is valid and the lessee is bound by it. Similarly, where A transfers his land to B only for the
purposes of cultivation of crops for a period of ten years B doesnt get absolute interest, he gets
only a partial interest namely, the right of cultivation. Here, if A imposes a condition that B
cannot plant mango-trees on the land, the condition is valid and B is bound by it.

Where a land is transferred for life, there is no transfer of absolute interest because in such
cases the transferee gets only the right of enjoyment of property during his life. After his death,
the property reverts back to the transferor. Therefore, in a transfer of property for life, the
condition or direction limiting the mode of enjoyment is not hit by section 11 and the condition
or direction is valid.

The principle of this section applies as much to mortgage and leases as to gift or sale. The
Primary paragraph of the section 11 ensures the enjoyment of the transferee by making the
direction of specific manner to enjoy, void.

EXCEPTION
The Second paragraph of this section is an exception to the rule. The second paragraph of
Section 11 of the Transfer of Property act states that, Where, on a transfer of property, an
interest therein is created absolutely in favor of any person, but the terms of the transfer direct
that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled
to receive and dispose of such interest as if there were no such direction. Where any such
direction has been made in respect of one piece of immoveable property for the purpose of
securing the beneficial enjoyment of another piece of such property, nothing in this section
shall be deemed to affect any right which the transferor may have to enforce such direction or
any remedy which he may have in respect of a breach thereof.9

It provides that a condition or direction restraining the mode of enjoyment may be made by
transferor provided it is for the beneficial enjoyment of transferors own adjoining property.
Thus, if a persn owns two property say, a house in which he is residing and an adjacent land he
can impose a condition on the purchaser that he would not obstruct the air or light from the
windows of his house which open on the side of land sold. This condition, though curtails the
right of the enjoyment of the purchaser, is a valid condition, because it is meant for the
beneficial enjoyment of transferors own property. This exception is based on the rule laid

9https://www.lawteacher.net/.../property-carries-with-it-certain-basic-rights-law-essays....(last visited 19/9/17)

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down in TULK V. MOXHAY where such conditions were described as restrictive covenants and
are regarded as part pf the property for the beneficial enjoyment of which they are imposed the
transferee .

Under section 11 the conditions restraining the mode of enjoyment is valid only in the following
cases:

I. Where the condition has been imposed by the transferor himself; a condition imposed
by any other person is not valid.

II. Where the condition restraining mode of enjoyment has been imposed for the beneficial
enjoyment of the transferors own property; transferor can not impose and enforce such
restrictions for the benefit of anothers property. Since such restrictive covenants exist for the
beneficial enjoyment only of transferors property, they can be enforced only by the transfers
or subsequent assignee from the transferor of property for the benefit of which the covenant
was made.

TULK V. MOXHAY:-
Tulk v Moxhay [1848] EWHC J34 (Ch) is a landmark English land law case that decided that
in certain cases a restrictive covenant can "run with the land" (i.e. a future owner will be subject
to the restriction) in equity.

FACTS:- In 1808, Charles Augustus Tulk, the owner of several parcels of land in Leicester
Square,[1] sold a plot to another party, making a covenant to keep the Garden Square
"uncovered with buildings" such that it could remain a pleasure ground. Over the following
years the land was sold several times over to new parties, eventually to the defendant.

The defendant, who was aware of the covenant at the time of purchase, refused to abide by the
covenant as he claimed he was not in privity of contract and so was not bound by it.10

JUDGEMENT:- Lord Cottenham LC found in favour of the plaintiff and granted an injunction
to restrain the defendant from violating the covenant. The Court noted that if the agreement
had been a contract instead of a covenant, it would have been enforceable. Therefore the
covenant was enforceable at equity, that is, when the plaintiff seeks an injunction as opposed
to damages. The case stands for the proposition that vertical privity (privity of estate) is not
required for the burden of a covenant to run at equity.

That this Court has jurisdiction to enforce a contract between the owner of land and his
neighbour purchasing part of it, that the latter shall either use or abstain from using land
purchased in a particular way, is what I never knew disputed. It is said that, the covenant being
one which does not run with the land, this court cannot enforce it, but the question is not
whether the covenant runs with the land, but whether a party shall be permitted to use the land
in a manner inconsistent with the contract entered into by his vendor, with notice of which he
purchased. Of course, the price would be affected by the covenant, and nothing could be more

10
https://www.casebriefs.com/blog/law/property/property.../tulk-v-moxhay-2/ (last visited 24/9/17)

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inequitable than that the original purchaser should be able to sell the property the next day for
a greater price, in consideration of the assignee being allowed to escape from the liability which
he had himself undertaken. That the question does not depend on whether the covenant runs
with the land is evident from this, that if there was a mere assignment and no covenant, this
Court would enforce it against a party purchasing with notice of it; for if an equity is attached
to the property by the owner, no one purchasing with notice of that equity can stand in a
different situation from the party from whom he purchased.

The court held that in equity the subsequent transferees in series were bound by the covenant
and restrained Moxhay from constructing buildings in the garden. Lord Cotenham observed
that since Moxhay had notice of the covenant and since Tulk had legitimate interest in
preserving the garden, the covenant was enforceable at equity against Moxhay.11

A restrictive covenant is a private agreement between land owners where one party will restrict
the use of its land in some way for the benefit of another's land. Restrictive covenants, once
agreed between the parties, are placed in the title deeds to the property. They bind the land and
not the parties personally. In other words, the restrictive covenant 'runs with the land'. This
means that the covenant continues even when the original parties to the covenant sell the land
on to other people. Restrictive covenants also continue to have effect even though they were
made many years ago and appear to be obsolete. They are enforceable by one landowner against
another, provided they are restrictive or 'negative' in their effect and effectively allow a form
of private planning control. An example of restrictive covenants on a housing development are
deed restrictions that protect property values by preventing any deviation of the appearance of
units within the development from a standard. Frequently, restrictive covenants will also
control some of the activities that take place within the boundaries of the properties they apply
to.12

A restrictive covenant can be enforced by the courts if a beneficiary of the covenant objects.
The agreement is enforced by granting an injunction forbidding the landowner to break the
agreement. The Lands Tribunal has powers under section 86 of the Law of Property Act 1925
or Article 5 of the Property (Northern Ireland) Order 1978 to dissolve or relax covenants that
appear to be out of date or unreasonable. To insure against the risk will generally be the option,
but cover may not always be available.13

A person who is affected by a restrictive covenant has two options to protect themselves against
any action for breaching it:

Obtaining insurance cover, known as 'indemnity insurance', in respect of any attempt to enforce
the covenant
Seeking a declaration from the Lands Tribunal that the covenant is invalid

11
https://webstroke.co.uk/law/cases/tulk-v-moxhay-1848 (last visited 24/9/17)
12
swarb.co.uk/tulk-v-moxhay-22-dec-1848/(last visited 24/9/17)
13
www.londonlawmap.com/2013/10/tulk-v-moxhay-1848-47-er-1345.html(last visited 24/9/17)

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It will generally be cheaper and quicker to insure against the risk of action for breach than
seeking a declaration from the Lands Tribunal, but cover may not always be available where
the beneficiaries of the covenant may have notice of a breach or planned breach.

Doctrine of restrictive covenants (Rule in Tulk v. Moxhay14)


Upon the sale of land it often becomes desirable to impose conditions restrictive of the
enjoyment of the land by the purchaser. These restrictions are intended to preserve the general
character and amenities of other land reserved by the covenantee. Thus, for instance, the
purchaser may be required to enter into a covenant to keep his land vacant uncovered with
buildings or not to use any house that may be erected on it as a shop. Such a covenant is called
a negative or restrictive covenant. It restrains the covenantor in putting his land to certain
specified uses. It does not compel him to enjoy the land in any particular manner. A covenant,
however, may also be positive or affirmative. A covenant to dig a well on the land for the
supply of water for the covenantee's dwelling house in the neighborhood or to lay out money
in maintaining a road is a positive covenant. Positive covenants invariably involve the
expenditure of money on the land and their enforcement necessitates compelling the covenanter
to put his hand into his pocket. The rule as to restrictive covenants was propounded in the
leading case of Tulk v. Moxhay.3 The facts of the case were as follows: the plaintiff was " the
owner of a vacant site in Leicester Square as well as of several houses forming the square. He
sold the site by a deed, which contained a covenant that the vendee, his heirs and assignees
would keep the site in its then form as a square garden and pleasure ground in an open state,
uncovered with buildings. The land after several intermediate purchases passed to the
defendant who desired to build on it although he had notice of the original covenant. The
plaintiff sued for an injunction to restrain him. It was held that the covenant was in substance
negative and could be enforced against the defendant. Lord Cottenham granted the injunction
sought and observed as follows:

"That this Court has jurisdiction to enforce a contract between the owner of land and his
neighbour purchasing part of it, that the latter shall either use or abstain from using the land
purchased in a particular way, is what I never knew disputed..... If an equity is attached to the
property by the owner, no one purchasing with notice of that equity can stand in a different
position from the party from whom he purchased". 15

Scope of the rule in Tulk v. Moxhay


The rule in Tulk v. Moxhay, as interpreted and developed by later decisions may be stated thus:
"Anyone coming to the land with notice actual or constructive of a covenant entered into by
some previous owner of the land, restricting the use to be made of the land, will be prohibited
from doing anything in breach of that covenant".16 The Transfer of Property Act has embodied
in section 40 the rule as to restrictive covenants. It provides that as between the immediate
parties both positive and negative covenants are enforceable when the covenant is made for the

14
https://www.jstor.org/stable/pdf/10.2307/1070041.pdf(last visited 24/9/17)
15
https://hklandlaw.wordpress.com/.../tulk-v-moxhay-explained-purchasers-with-notice-...(last visited 24/9/17)
16
https://www.solicitorsjournal.com/node/197378(last visited 24/9/17)

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benefit of other adjoining land of the covenantee. When land burdened with a negative
covenant is transferred, the covenant may be enforced against the transferee unless he is a
transferee for consideration and without notice. The distinction between them and easements
consists inthat a restrictive covenant binds only purchasers with notice whereas aneasement is
binding even on transferees without notice. Mellish, L J., observes in Leech v. Schweder,
"Though the man who makes the covenant is liable, yet those claiming under him are not liable
at law; but the Court of Equity says that if a purchaser has taken the land with notice of that
contract, it is contrary to equity that he should take advantage of that rule of law to violate that
covenant". Negative covenants for this reason are called Equitable Easements. 17

Other restrictions on enjoyment When a transfer creates an interest absolutely in favour of a


person, his right of enjoyment cannot be restricted except as provided by the rule in Tulk v.
Moxhay. This is because a restriction on enjoyment is repugnant to an absolute interest. The
doctrine is applicable only to restrictive or negative covenants. Positive or affirmative
covenants, which require the doing of some positive act on the part of the covenantor, do not
run with the land even in equity.18 That is, though they are binding on the covenanters, they are
not enforceable against the assignees of the covenanter's land.

17
https://www.hnlu.ac.in/.../Sem-IV%20Transfer%20of%20Property%20Act.pdf(last visited 24/9/17)
18
www.law.harvard.edu/faculty/cdonahue/courses/prop/out/Topic4_5.out.doc(last visited 24/9/17)

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CONCLUSION
Restriction repugnant to interest created Section 11 of the Transfer of Property act states that,
Where, on a transfer of property, an interest therein is created absolutely in favor of any person,
but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a
particular manner, he shall be entitled to receive and dispose of such interest as if there were
no such direction. Where any such direction has been made in respect of one piece of
immoveable property for the purpose of securing the beneficial enjoyment of another piece of
such property, nothing in. This section shall be deemed to affect any right which the transferor
may have to enforce such direction or any remedy which he may have in respect of a breach
thereof. Condition making interest determinable on insolvency or attempted alienation Strength
.The principle of this section applies as much to mortgage and leases as to gift or sale. The
Primary paragraph of the section 11 ensures the enjoyment of the transferee by making the
direction of specific manner to enjoy, void. The next paragraph of section 11 takes care of the
beneficial enjoyment of another piece of property adjoining to the main property. By putting
the specific condition in case of enjoyment. It ensures the enjoyment right of another party
related to the subject property. Weakness, Where the property transferred is already under a
charge, which is but a condition, section 11 will not apply, as in that case. This section does
not apply, unless the transfer creates an absolute interest in the transferee. The transferor may
impose conditions restraining the enjoyment of land if such restrictions are for the benefit of
his adjoining party. The second paragraph of section 11 can be enforced only by the transferor
and not by the transferee of another portion of the property. So, it demolish the balance of the
right between two parties. Upon the sale of land it often becomes desirable to impose conditions
restrictive of the enjoyment of the land by the purchaser. These restrictions are intended to
preserve the general character and amenities of other land reserved by the covenantee. Thus,
for instance, the purchaser may be required to enter into a covenant to keep his land vacant
uncovered with buildings or not to use any house that may be erected on it as a shop. Such a
covenant is called a negative or restrictive covenant. It restrains the covenantor in putting his
land to certain specified uses. It does not compel him to enjoy the land in any particular manner.
A covenant, however, may also be positive or affirmative. A covenant to dig a well on the land
for the supply of water for the covenantee's dwelling house in the neighborhood or to lay out
money in maintaining a road is a positive covenant. Positive covenants invariably involve the
expenditure of money on the land and their enforcement necessitates compelling the covenanter
to put his hand into his pocket.

BIBLIOGRAPHY

BOOKS

1) Transfer of property act by Justice Ramanujam


2) Property law- Poonam Pradhan saxena
3) Transfer of property act- S. N. Shukla

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4) Law of transfer of property Vepa P. Sarathi
5) Textbook on the Transfer of Property Act By Avtar Singh
WEBSITES

Lawyersclubindia.com
Lawweb.net
Indiankanoon.org
Legalsutr.com
shortnotesonlaw.blogspot.com

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