case analysis on section 40 of transfer of property act, 1882

1. Tulk v. moxhay
Case Analysis on Transfer of Property Act, 1882
Presented By
Abhinandan Rai
Regd. No. 1141845020
SOA National Institute of Law, Bhubaneswar

2. Background and Legislative provision
• This case is based on section 40 of the Act.
• Covenant means written agreement or contract with respect to the property.
• Restrictive covenants are such contracts which restrict the use or enjoyment
of the property.
Positive covenants v. negative covenants
• Where the transferee is required to do something on the transferred land it
is positive covenant where as, if the transferee is restrained to do certain
thing in the land it is negative covenant.
• it is only a negative covenant that may be enforced against a purchaser
from a transferee. if there is a negative covenant, and the purchaser buys
with notice of the covenant, the Court may restrain him by an injunction.

3. Section 11 v. section 40 of TP Act, 1882
• Sect 11 both positive and negative covenants
enforceable against transferee only
• Sec 40 only negative covenant and sub sequent
transferees
• Restrictive covenants are annexed to the land
and run with the land
• A transferee or subsequent who don’t have the
notice of the covenant can be saved

4. Contractual obligation annexed to ownership:
• Where a third person is entitled to the benefit of an
obligation arising out of contract and annexed to ownership
of immovable property then the obligation may be enforced
against a transferee for value with notice.
• For example, A contracts to sell Sultanpur to B. While the
contractis still in force he sells Sultanpur to C, who has
notice of the contract. B may enforce the contract against C
to the same extent as against A.
• Restrictive covenants and contractual obligations annexed
to ownership both are enforceable only where the transfer
and subsequent transfers are for value and has a notice of it
but if transfer is gratuitous then notice is not required

5. Facts
• In the year 1808 the plaintiff Tulk being the owner of
several houses in Leicester Square London sold a piece
of land to E with a covenant that E and his successor or
assignees shall keep the garden intact as an ornamental
garden and shall not construct any building in it.
• The garden is situated in the center surrounded by
several houses.
• After some times, E sold the garden to another person
and he sold it to another one and now it was sold by
Moxhay the defendant.
• M had the notice of the covenant still he attempted to
build a house on the garden.
• By enforcing the covenant, Tulk sought an injunction to
restrain M from constructing building in the garden.

6. issue
• whether the covenant be one which runs with
the land so as to be binding upon subsequent
purchasers at law?

7. Judgment
• 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.