Burden of obligation imposing restriction on use of land II Sec 40 of Transfer of Property Act

Burden of obligation imposing restriction on use of land II Sec 40 of Transfer of Property Act

Topics covered in the video -

40 (1) : Covenant attached with the land
Where, for the more beneficial enjoyment of his own immoveable property, a third person has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment (in a particular manner of the latter property), or of obligation annexed to ownership but not amounting to interest or easement.

40 (2) : Contractual obligation
Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, not against such property in his hands.

Case Laws discussed in the video

Roger's Case
In this case L.J Farewell stated the characterstics of Covenant
1. Restrctions should be imposed from initial.
2. Restrictions should be realted to the use of that land.
3. Benefit should be observe for which restriction was imposed

Tulk v. Moxhay
The claimant, Tulk, sold his property in Leicester Square, London, and , making the purchaser promise to not build on the property so as to help keep Leicester Square ‘uncovered with buildings’ and creating an equitable covenant. The purchaser subsequently sold the land and it underwent multiple transactions, and was eventually purchased by the defendant, Moxhay. Whilst Moxhay was aware of the covenant attached to the land at the time of the transaction, he claimed it was unenforceable as he had not been a party to the original transaction in which the covenant had been made.
In this case Lord Cottenham passed an injunction to prevent Moxhay from building on the land as a covenant amounts to a contract between a transferor and transferee, it is enforceable against a subsequent transferee if he have either constructive or actual notice. As Moxhay had actual notice of the covenant, he was obligated to abide by it.

Haywood v Brunswick Permanent Benefit Building Society
In this case L.J. Cotten discussed the types of Covenant -
1. Personal Covenant – It is a personal agreement between two person. (not applicable on subsequent transferee)
2. Where the transferor transfers his entire property property. (not to be executed)
3. Where the transferor transfer only one portion of property. It can be executed if covenant is negative in nature.
Positive Covenant – Condition Attached of doing something.
Negative Covenant – Condition refrain from doing something
---------------------------------------------------------------------------------------------------
#section 40 of transfer of property act, #section 40 of tpa, #section 40 of tp act, #section 40 of tp act notes, #section 40 tpa explained, #section 40 of transfer of property act notes, #section 40 of transfer of property act case laws, #burden of obligation imposing restriction on use of land, #sec 40 tpa
---------------------------------------------------------------------------------------------
For more videos click on the link-

Rule against perpetuity : Section 14 Transfer of Property Act II #section14transferofpropertyact1882

Condition Restraining Alienation (Section 10)
   • Section 10 TPA : Condition restrainin...  

Restriction Repugnant to Interest Created (Sec. 11)
   • Section 11- Transfer of property Act ...  

Condition Making Interest Determinable on Insolvency or Attempted alienation (Sec. 12)
   • Section 12 of Transfer of Property Ac...  

Transfer for benefit of unborn person (Sec. 13)
   • Transfer for benefit of unborn person...  

Oral Transfer of Property (Sec. 9)
   • Section 9 - Oral Transfer of Property...  

Operation of Transfer (Sec. 8)
   • Section 8 of transfer of Property Act...  

Person Competent to Transfer (Sec.7)
   • Section 7 of Transfer of Property Act...  

Transfer of property act 1882
   • Transfer of property act 1882 , संपत्...  

Movable and Immovable Property
   • Movable and Immovable Property : Tran...  

Instrument and attestation
   • Instrument Attestation of property : ...  

Actionable Claim
   • Actionable Claim : Transfer of Proper...  

Notice - Actual Notice I Constructive Notice
   • Notice I Transfer of property act, 18...  

Essentials of Transfer of Property
   • Transfer of Property Defined II Essen...  


Crime and Elements of Crime
   • Crime and Fundamental Elements of Cri...  

Stages of Crime
   • STAGES OF CRIME (INDIAN PENAL CODE 18...  

General Exceptions (Part 3)
   • General Defences II Section 87-91, 95...  
----------------------------------------------------------------------------------------------
E-mail [email protected]
Feel free free to contact for any query or notes.

Plz like and share the Video and SUBSCRIBE the Channel.

Thanks & Regards
Adv. Rahul Chauhan.