CONDITION RESTRAINING ENJOYMENT

SUBMITTED BY:
Tanushka shukla B.A. LL.B.(Hons.)
SUBMITTED TO:
Dr. Vijay Kumar Vimal,
Faculty, Property Law

CHANAKYA NATIONAL LAW UNIVERSITY

MITHAPUR, PATNA (800001)
 DECLARATION

I hereby declare that the project entitled “Condition Restraining Enjoyment” submitted by me at
CHANAKYA NATIONAL LAW UNIVERSITY is a record of bona fide project work carried out
by me under the guidance of our mentor Dr.Vijay Kumar Vimal . I further declare that the work
reported in this project has not been submitted and will not be submitted, either in part or in full,
for the award of any other degree or diploma in the university or in any other university.

TANUSHKA SHUKLA

ROLL NO- 2169

B.A.L.L.B.(Hons.)
 ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled or formulated in isolation is inexplicable to
an extent . This research work, although prepared by me, is a culmination of efforts of a lot of
people who remained in veil, who gave their intense support and helped me in the completion of
this project.

Firstly, I am very grateful to, my subject teacher Dr. Vijay Kumar Vimal, without the kind
support and help of whom the completion of this project was a herculean task for me. I would
like to thank him for his valuable suggestions towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and encouragement
which helped me in completion of this project. I am also thankful to the library staff of my
college which assisted me in acquiring the sources necessary for the compilation of my project.

Last but not the least; I would like to thank the Almighty who kept me mentally strong and in
good health to concentrate on my project and to complete it in time.

I thank all of them!

TANUSHKA SHUKLA

ROLL NO.-2169

B.A.LL.B. (Hons.)

SESSION: 2019-2024
Contents

DECLARATION.........................................................................................................................................2
ACKNOWLEDGEMENT...........................................................................................................................3
RESEARCH METHODOLOGY................................................................................................................5
Method of Research.................................................................................................................................5
OBJECTIVE............................................................................................................................................5
SOURCES OF DATA.............................................................................................................................5
METHOD OF WRITING........................................................................................................................5
INTRODUCTION...........................................................................................................................................6
CRITICAL ANANLYSIS OF SECTION 11...............................................................................................9
Condition Precedent..............................................................................................................................11
Condition Subsequent............................................................................................................................11
Condition Collateral..............................................................................................................................11
Positive and negative conditions or covenants......................................................................................12
EXCEPTION TO CONDITION RESTRAINING ENJOYMENT............................................................14
APPLICATION IN HINDU AND MOHAMMEDAN LAW....................................................................17
CONCLUSION.........................................................................................................................................18
BIBLIOGRAPHY.....................................................................................................................................19
 RESEARCH METHODOLOGY

Method of Research

The researcher has adopted a

purely doctrinal method of
research. The researcher has
made
extensive use of the library at
the Chanakya National Law
University and also the
internet
sources
The researcher has adopted a
purely doctrinal method of
research. The researcher has
made
extensive use of the library at
the Chanakya National Law
University and also the
internet
sources
The researcher has adopted purely doctrinal mode of research. The researcher has
made the extensive use of the library at Chanakya National Law University and
also the internet resources.

OBJECTIVE
To understand the concept of condition restraining enjoyment.

SOURCES OF DATA
The following secondary sources of data have been used in the project-

1. Books
2. Websites
1. Books
2. Websites
1- Books

2- websites

METHOD OF WRITING
The method of writing followed in the course of this project work is completely
analytical in nature.
 INTRODUCTION

Section 11 of the Transfer of Property Act deals with condition restraining

enjoyment. Section 11 of the Transfer of property act states that-

 Restriction repugnant to interest created.—Where, on a transfer of property, an

interest therein 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.

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.

This Section comes into operation when the following conditions are fulfilled-

1. Absolute interest is created in favour of the transferee by the transfer.

2. Terms of the transfer provide that the interest in the property shall be enjoyed or
applied in the manner prescribed by the transferor.
The expression “enjoyment of property” includes several rights such as right of
alienation, right to effect partition of property, right to use the property for the
purpose of residence, a provision for payment etc. The rights of alienation of
property is an important form of enjoyment of property. A restriction of such
rights, therefore, is a restriction on the enjoyment of property and restrictions
should be disregarded1. A condition in a transfer deed that donee of property and
his heir should reside in the property on pain of forfeiture of the gift is a restraint
on the enjoyment of property and would be void for repugnancy if the main
intention of the donor was to make an absolute gift.2

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.

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.

1
Official Receiver, West Tanjore vs. S. Chethiar, AIR 1939 Mad. 509
2
R.K. Tambvekar vs. L.N. Tambvekar, AIR 1920 Bom. 73
Thus, no life interest can be created in favour 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 way of rent after sale is illegal. 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.
 CRITICAL ANANLYSIS OF SECTION 11

Section 11 provides that in the transfer of absolute interest of property, if the

transferor imposes any condition restraining the mode of its enjoyment, the
condition is void and the transferee is not bound by such condition. Absolute
interest in a property means ownership .where a property is transferred absolutely,
there is transfer of ownership and the transferee gets all the incidents of ownership
including the right to use or enjoy the property as he likes.

Absolute interest refers to someone having a complete right to, or ownership of, a
property or an asset. This means, according to English law, a person with absolute
interest has the sole right to legally possess and derive benefits from such an asset
or property. No other person or entity has an interest or claim to the asset or
property in question. As well, there are no circumstances attached to the asset or
property that could affect the person’s right to, or ownership of, the possession in
question. Thereby, someone with absolute interest in an asset or property enjoys
the full protection of the law in benefiting, profiting and/or accruing privileges,
without the interference of others, unless doing so is proven to put others in society
at risk.
An example of absolute interest would be the direct ownership of a piece of
expensive jewelry. If acquired through direct purchase by transferring one’s own
asset or funds in exchange for the jewelry, then the person is not bound by a bank
to pay off a loan, thereby sharing an interest. Instead, the owner can do what he or
she likes with the piece of jewelry to include wearing it, putting it in a showcase,
selling it, lending it or even destroying it.

This also involves the concept of conditional transfer as the transferee imposes
certain conditions that need to be followed after the transfer of the property.

Section 25 of the Transfer of Property Act, 1882 provides for Conditional Transfer.

It means that any transfer that happens on the fulfilment of a condition that is
imposed on the other party for the transfer of property. For example, A agrees to
transfer his property to B if he gets selected for a job. The requirement of A for B
to get a job is called a condition.

For any kind of a conditional transfer to be valid, the condition that is imposed
should not be:

1. Prohibited by law,
2. Should not be an act that involves fraudulent acts,
3. Should not be any act that is impossible,
4. Should not be an act that is termed as violative of public policy,
5. Should not be immoral,
6. Any act that incurs any harm to any person or his property.
For example, X transfers a property ‘B’ to Y stating that he shall murder Z as a
condition for the transfer. Such transfer is void as the condition is prohibited by
law.

There are three specific types of conditions that are imposed in a transfer of
property and there are some more types provided. All these conditions should also
satisfy all the requirements of a condition as mentioned in Section 25 of the
Transfer of Property Act, 1882.

Condition Precedent

It is given in Section 26 of the Transfer of Property Act, 1882. Any condition that
is required to be fulfilled before the transfer of any property is called a condition
precedent. This condition is not to be strictly followed and the transfer can take
place even when there has been substantial compliance of the condition.

Condition Subsequent

It is given in Section 29 of the Transfer of Property Act, 1882. Any condition that
is required to be fulfilled after the transfer of any property is called condition
subsequent. This condition is to be strictly complied with and the transfer will
happen only after the completion of such condition. 

Condition Collateral

Any condition that is required to be fulfilled simultaneously after the transfer of

any property is called condition collateral. It needs to be strictly followed
otherwise the transfer will break down. 

Condition restraining enjoyment is almost similar to condition subsequent with the

only difference that in condition restraining enjoyment the transferor first transfers
property and then imposes or prescribes the manner in which the property should
be used or enjoyed. The prescribed method therefore becomes invalid as it restrains
or hampers the full enjoyment of property by the transferee.

A condition attached to the transfer of an absolute interest would affect the full
ownership and would make it something less than a full ownership. It is against the
very nature of the transfer that ownership is given to the transferee and at the same
time his right of enjoyment of the property is either postponed or curtailed.

In one illustration there was a common chowk between the residential houses of
the parties involved in the transaction. The previous owner had stipulated a
condition in the sale deed that the chowk was not to be used for private purposes. It
was held that such a stipulated condition could not be enforced against the
subsequent owner particularly when no such condition was mentioned in the sale
deed given to the subsequent owner regarding use of the common chowk. 3

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. 

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

3
Roshan Lal v. Manoj Kumar, AIR 2015 Raj.71
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.

For example, A transfers a land to B, and puts a condition, that he would leave

open a four feet wide space adjoining A’s 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.
 EXCEPTION TO CONDITION RESTRAINING ENJOYMENT

A condition restraining alienation of property is void. In the like manner, a

condition restraining enjoyment of a transferred property is also void. This law is
embodied in Section 11 of the Transfer of Property Act. As per this section, a
condition restraining enjoyment of property which has been transferred absolutely
is void and the transferee is free to enjoy and dispose of the income of the property
in any manner he likes. The transferor cannot say that the property should only be
used in a certain way insisted by him.

If the transferor is owning another part of immovable property also he can impose
certain restrictions or conditions to the transferee for the benefit of that property.
The use of the transferred property should not cause hindrance to the enjoyment of
that particular property owned by the transferor.

The second paragraph of this section is an exception to the rule. It provides that a
condition or direction restraining the mode of enjoyment may be made by the
transferor provided it is for the beneficial enjoyment of transferor;’s own
adjoining property.. thus if a person owns two properties 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 windowsof his house which open on the
side of the land sold. This condition though curtails the right of enjoyment of the
purchaser is a valid condition because it is meant for the beneficial enjoyment of
transferor’s own property. This exception is based on the rule lad doen in Tulk v.
Moxhay4 where such conditions were described as restrictive covenents and are
regarded as part of the property for the beneficial enjoyment of which they are
imposed on the transferee. 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".

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
4
(1848) 41 ER 1143
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".

Under section 11 the conditions restraining the mode of enjoyment are valid only
in the following cases-

1- Where the condition has been imposed by the transferor himself ; a

condition imposed by any other person is not valid.
2- Where the condition restraining mode of enjoyment has been imposed for
the beneficial enjoyment of transferor’s own property ; transferor cannot
impose and enforce such restrictive conditions for the benefit of another’s
property. Since such restrictive covenents exist for the beneficial enjoyment
only of transferor’s property, they can be enforced only be the transferor or a
subsequent assignee from the transferor of the property for the benefit of
which the covenant was made
 APPLICATION IN HINDU AND MOHAMMEDAN LAW

The invalidity of conditions in restraint of enjoyment of property is recognized

both in Hindu law and Mohammedan Law. A direction in restraint of partition in a
Hindu gift is void. In Anantha’s case , it was decided under Hindu law that a
condition in a gift to Brahmins restrictive of alienation is invalid as being
repugnant to the nature of grant.

Even under Mohammedan Law when a gift is made subject to the condition which
 CONCLUSION

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. That is, though they are
binding on the covenanters, they are not enforceable against the assignees of the
covenanter's land.

Section 11 of the Act also embodies a rule which is based on the principle that
restraint on the enjoyment of the property is invalid. The section lays down that
where land is transferred by one to another, the transferor should not impose
conditions as to how and in what manner the transferee should enjoy the property.

Section 10 and section 11 both the condition subsequent curtailing the rights of a
transferee are declared void. But the provisions of these two sections may be
distinguished as section 10 is applicable to the transfers of absolute interest as well
as limited interest whereas in section 11 it is applied to transfers of only absolute
interest (ownershop) and in section section 10 refers to a restraint on alienation
under section 10 the condition Is that transferee cannot transfer the property but in
section 11 the restraint is on the mode of enjoyment that is under section 11 the
condition Is that transferee cannot have the free enjoyment of the property.

BIBLIOGRAPHY

• The Transfer of Property Act by Dr. R. K. Sinha

• www.wikipedia.com

• https://indiankanoon.org

• https://indiacode.nic.in