UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

B.A.LL.B. (HONS.) ENERGY LAWS

SEMESTER-V

ACADEMIC YEAR: 2018-19

CASE COMMENT

1. Tulk Vs. Moxhay

2. Girish Dutt Vs. Datadin

Submitted to-

Ms. Shikha Dimri

Submitted by-

Drishti Tiwari

R450217036
 TULK VS MOXHAY 41 ER 1143, Volume 41

Facts

The claimant, Tulk, owned several properties in Leicester Square, London, and sold one such
property to another, 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. 

Issue

Whether an equitable covenant limiting the use of a property could ‘run with the land’ and
bind a future owner of the property.

Held

The High Court, consisting of Lord Cottenham, found for Tulk, and passed an injunction to
prevent Moxhay from building on the land. The covenant had been intended to run with the
land at the time it was made, and all subsequent purchasers had been informed of its
existence. Moreover, as a covenant amounts to a contract between a vendor and vendee, it is
enforceable against a purchaser for value with either constructive or actual notice. As
Moxhay had actual notice of the covenant, he was obligated to abide by it. Notably, the
relevance of this decision decreased with the introduction of the 1925 Land Registration Act
which made such covenants a registrable interest.

Analysis

A purchaser from B, with notice of the covenant, was bound by it in equity, whether he was
bound at law or not, and an injunction was granted to restrain him infringing the covenant.
The equitable doctrine is that restrictive covenants follow the land to the new owner on
notice. The subsequent owner must be found to have notice before he will be bound by the
covenants.
The burden of a positive covenant will not run with the land. In order to bind a successor in
title: 1) the covenant must be negative in substance 2) It must benefit the land of the
covenantee, 3) The burden must be intended to run with the land, and 4) the successor must
have notice of the covenant.
Lord Cottenham LC said: ‘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, and with notice of which he purchased.’ and ‘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.
 GIRJISH DUTT AND OTHERS V. DATA DIN AND OTHERS
Facts
One Mt. Sugga was the absolute owner of the property in suit. On 15th January 1919, she
executed a deed of gift transferring the property in the first place to Mt. Ram Kali, the
daughter of Data Din, who was a son of her real brother. Mt. Ram Kali remained in
possession during her life. On her death a dispute arose between Data Din, plaintiff 1, the
father, and Girjish Dutt, defendant 1, the husband of Mt. Ram Kali. Data Din transferred
some of his interest to the three other plaintiffs, who joined him in instituting the suit. Girjish
Dutt also transferred half of the property to his brother Rajendra Dutt, defendant 2. The
plaintiffs' case was that the gift in favor of Mt. Ram Kali was of a life interest only, and that
under the terms of the gift, the property passed on her death to her father Data Din. The
defendants on the other hand contended that Mt. Ram Kali was an absolute owner of the
property transferred to her under the gift, and therefore the property on her death devolved on
her husband, defendant 1. They also contended in the alternative that if the gift in favor of
Mt. Ram Kali was not absolute, even then the gift over in favor of Data Din was void by
reason of the provisions of Ss. 13 and 16, TPA.

Contentions
The contention urged on behalf of the defendants was that the gift of a life interest to the
unborn daughters of Mt. Ram Kali was void under the provisions of S. 13, T. P. Act, and that
the gift over to the first plaintiff was consequently void under S. 16 of the same Act, because
he was to take after or on the failure of the daughters.
The learned Subordinate Judge held that the gift conveyed to Mt. Ram Kali only a life
interest, and that the gift over to plaintiff 1 was not void because it was not dependent on the
gift to the daughters, but was an alternative and independent gift.
Girjish Dutt and Rajendra instituted the appeal in the High court.

Issues Raised
The main questions which have been raised in arguments were:
(1) Whether the gift to Mt. Ram Kali was an absolute gift or not,
(2) Whether the plaintiffs' case falls under the provisions of Ss. 13 and 16, TPA.
Where by reason of any of the rules contained in S. 13.......an interest created for the benefit
of a person......fails in regard to such person.......any interest created in the same transaction
and intended to take effect after or upon failure of such prior interest also fails.
The question referred by the Division Bench for decision to the Full Bench was:
Whether, in the circumstances set forth in our order, the gift over to Data Din under the deed
executed by Mt. Sugga in favor of Mt. Ram Kali is void having regard to the provisions of
Ss. 13 and 16, T. P. Act.
Held
“If on her (Ram Kali's) death there be any male descendants, 'whether born of son or
daughter, he will be the absolute owner of the property, and if Mt. Ram Kali may have only
daughters, thay shall have no power of transfer. If, God forbid, there may not be any issue of
Mt. Ram Kali, whether male or female, living at the time of her death, the gifted property
shall not in any way devolve upon her husband or his family, but it shall go to Data Din,
father of Mt. Ram Kali, if he be then alive, and if Data Din be not alive, then the person who
may be living of the line of Data Din at that time would get it.”
The intention of the donor clearly was that Data Din should get the property only in ease the
gift in favor of the male-descendants and the daughters of Ram Kali failed. The case therefore
seems to be fully covered by the words upon failure of such prior interest. If the taking effect
of the subsequent interest is dependent upon the failure of a prior interest which satisfied the
other requirements of the section 16, we fail to see any escape from the rule laid down therein
that such subsequent interest must also fail. As we have held that the other requirements of
the section are satisfied, and we are further of opinion that the gift in favor of Data Din was
dependent upon the failure of the prior interest in favor of the daughters, the result is that the
gift in favor of Data Din must also fail.

Analysis
The high court was of the opinion that the conclusion to be drawn from the deed as a whole
must inevitably be that the gift to Mt. Ram Kali was not an absolute gift, but a gift only of a
life interest.
It is clear that the gift over in favor of the sons or grandsons of Mt. Ram Kali was not in any
sense void, and it was a transfer of an absolute interest but on the other hand, the gift over to
the daughters of Mt. Ram Kali, who were not born at the time of the transfer, was void
because the transfer of the interest to them was subject to the prior interest created by the
same transfer in favor of Mt. Ram Kali, and it was a transfer which did not extend to the
whole of the remaining interest of the transferor in the property, since it was intended merely
to be a life interest.