NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

SEMESTER IV

PROPERTY LAW
END TERM PROJECT

R. Kempraj v. Barton Sons and Co.

[AIR 1970 SC 1872]

SUBMITTED TO
Prof. Dr. Sanjay Yadav

SUBMITTED BY
Srajan Tyagi

Page |1 Case Analysis: R. Kempraj v. Barton Sons and Co.

 (2019BALLB107)

Page |2 Case Analysis: R. Kempraj v. Barton Sons and Co.

 CERTIFICATE

“This is to certify that the case analysis – R. Khemraj v. Barton Sons and Co. has been prepared
and submitted by Srajan Tyagi who is currently pursuing their BALLB at National Law Institute
University, Bhopal in fulfilment of Constitutional Law I course. It is also certified that this is an
original case analysis and this has not been submitted to any other university, nor published in
any journal.”

Date-

Signature of the student-

Signature of Research Supervisor-

Page |3 Case Analysis: R. Kempraj v. Barton Sons and Co.

 ACKNOWLEDGEMENT

“The project has been made possible by the unconditional support of many people. I would like
to acknowledge and extend my heartfelt gratitude to Dr. Sanjay Yadav for guiding me
throughout the development of this paper into a coherent whole by providing helpful insights and
sharing her brilliant expertise. I would also like to thank the officials of the Gyan Mandir, NLIU
for helping us to find the appropriate research material for this study.”

I am deeply indebted to my parents, seniors and friends for all the moral support and
encouragement.

Srajan Tyagi

2019BALLB107

Page |4 Case Analysis: R. Kempraj v. Barton Sons and Co.

 TABLE OF CONTENTS

CERTIFICATE................................................................................................................................2

ACKNOWLEDGEMENT...............................................................................................................3

TABLE OF CONTENTS................................................................................................................4

NAME OF THE CASE:..................................................................................................................5

DATE OF THE JUDGEMENT:......................................................................................................5

CITATION OF THE JUDGEMENT:.............................................................................................5

TYPE OF BENCH:..........................................................................................................................5

HONOURABLE JUDGES:.............................................................................................................5

NUMBER & TYPE OF OPINIONS:..............................................................................................5

AUTHOR OF THE JUDGEMENT:................................................................................................5

COUNSELS REPRESENTING THE PARTIES:...........................................................................5

BACKGROUND.............................................................................................................................6

MATERIAL FACTS.......................................................................................................................6

ISSUES............................................................................................................................................7

CONTENTIONS.............................................................................................................................7

PROVISIONS OF STATUTES/CONSITUTION CITED..............................................................7

DOCTRINES/THEORIES/CONCEPTS INVOKED......................................................................7

LITEREATURE CITED.................................................................................................................8

PRECEDENTS CITED...................................................................................................................9

JUDGEMENT...............................................................................................................................10

REASONING................................................................................................................................11

CRITICAL ANALYSIS AND CONCLUSION............................................................................11

Page |5 Case Analysis: R. Kempraj v. Barton Sons and Co.

 NAME OF THE CASE:

R. KEMPRAJ V. BARTON SONS AND CO.

DATE OF THE JUDGEMENT:

29TH AUGUST,1969

CITATION OF THE JUDGEMENT:

AIR 1970 SC 1872

TYPE OF BENCH:

IT WAS A SPECIAL LEAVE APPEAL BEFORE A FULL BENCH OF THE SUPREME COURT.

HONOURABLE JUDGES:

JUSTICE A.N. GROVER, JUSTICE J.C. SHAH AND JUSTICE VAIDYNATHIER RAMASWAMI.

NUMBER & TYPE OF OPINIONS:

THE BENCH HAD A SINGLE OPINION AND A UNANIMOUS JUDGEMENT.

AUTHOR OF THE JUDGEMENT:

JUSTICE A.N. GROVER

COUNSELS REPRESENTING THE PARTIES:

PETITIONER: Adv. A.K. Sen; Adv. Shyamala Pappu: Adv. Vineet Kumar.

RESPONDENT: Adv. S.V. Gupte; Adv. Janendra Lal; Adv. B.R. Agarwala; Adv. Kumar M.
Mehta.

INTERVENORS/ AMICUS: No Amicus Curie or Intervenor was present in the Court.

Page |6 Case Analysis: R. Kempraj v. Barton Sons and Co.

 BACKGROUND

The current case had reached the Apex court by the way of a Special Leave Petition under
Article 136 of the Indian Constitution 1, by the respondent against the verdict of the Hon’ble
Mysore High Court. Before the verdict of the appellate High Court, initially the Plaintiff had
filed a suit for specific performance against the defendant, which the Trial court also agreed with
and thus granted the decree. After which the defendant naturally filed an appeal in the High
Court and further in the Supreme Court in anticipation of a favourable verdict.

Thus, the matter stood before the Supreme Court, which on 29 th of August in 1969 settled the
issue while setting a landmark case in Property Jurisprudence.

MATERIAL FACTS

The main subject matter of the case deals with a Lease deed between the petitioner and the
respondent. So, both the parties entered a deed of lease on October 26, 1951 which was initially
stipulated for a time period of 10 years i.e., till November 1, 1961.

Now the point of contentions arose on a certain clause of said deed which allowed for a renewal
of the lease deed if applied by the leasee any time before the expiry of the current deed period of
10 years, for the similar period of time (10 years) and under the same conditions such as the
original lease deed. Further, the lessee couldn’t transfer this deed to any 3 rd party; also, it was
provided that the lessor would not object to such renewal as long as all the stipulations were met
with.

Now, sometime before the expiry of these initial 10 years i.e., before November 1, 1961 the
lessee showed his intention to renew his lease in the same conditions as were previously
stipulated. But the lessor refused to comply with such request. Then, upon serving a notice to the
lessor the lessee filed before the Tribunal Court for a decree of specific performance.

1
India Const. Art. 136.

Page |7 Case Analysis: R. Kempraj v. Barton Sons and Co.

 ISSUES

The court very suitably formulated the following issue/s pertaining to the said case: -

 Whether the deed in question, subject to the renewal clause is hit by Section 14 of
TPA2, and accordingly void?

Hence, the issue thus formulated was a mixed question of fact and law.

CONTENTIONS

1. PETITONER

a. Petitioner contends that the current lease deed isn’t remotely concerned with §14
of TPA.

2. RESPONDENT

a. On the other hand, the primal argument of the respondent i.e., the lessor is that the
lease is inherently void as it is hit by the rule against perpetuity has mentioned u/s
14 of TPA.

3. INTERVENORS/AMICUS

Not Applicable.

PROVISIONS OF STATUTES/CONSITUTION CITED

 The Transfer of Property Act,1883.

Section 5: “Transfer of property” defined.
Section 14: Right Against Perpetuity
Section 40: Burden of obligation imposing restriction on use of land, or of obligation
annexed to ownership but not amounting to interest or easement.
Section 105: “Lease” defined.

2
Transfer of Property Act, 1883, Act. No. 4, Acts of Parliament.

Page |8 Case Analysis: R. Kempraj v. Barton Sons and Co.

 DOCTRINES/THEORIES/CONCEPTS INVOKED

 LIBERTY OF ALIENATION
The doctrine dictates that an inherent right which comes along a property is the right to
alienate it. Once a person owns a property in all regards, he has the exclusive right to
dispose off said property however he wants to. Thus, a hindrance in the right of the owner
in regards to alienation is generally considered null and void and the owner can enjoy the
property as if such an impediment was never there. [This rule is subject to exceptions in
the contemporary world]
 RULE AGAINST PERPETUITY
This rule which has been a part of English common law from as back as 1600s, dictates
and prohibits a successive vertical transfer of property. It says that a property might be
transferred to any number of living people but in case of an unborn person the property
may only pass once i.e., no two unborn persons can be declared as successive future
owners of any property [son → grandson]. It is such, so as to prevent the perpetual
transfer of property in one’s own kin, as it contravenes the liberty of alienation of such an
unborn owner who even though should have a complete interest can only enjoy said
property as limited interest.
 LEASE
A Lease of property is a transfer of the right to enjoy such property for a time period, or
even for perpetuity.

LITEREATURE CITED

 Halsbury's Laws of England3 by Edward Jenks

Halsbury's Laws of England is a uniquely comprehensive encyclopaedia of law, and
provides the only complete narrative statement of law in England and Wales.
It was cited to enunciate how in English law a covenant for even a perpetual renewal
would not be hit by the rule of perpetuity as long as the intention was clear.
 Transfer of Property Act4 by Mulla

3
Edward Jenks, Halsbury’s Laws of England, Fourth Edition, Vol. 24, 1907.
4
Sir D.F. Mulla, Transfer of Property Act 1882, 13th edition, 2018.

Page |9 Case Analysis: R. Kempraj v. Barton Sons and Co.

 It’s a classic section wise analysis of the primary legislation in respect of property
matters.
It was cited to explain how section 40 of TPA wouldn’t affect the current case scenario in
any way.

PRECEDENTS CITED

A. INDIAN JUDGEMENTS
1. Ganesh Sonar v. Pumendu Narayan Singha and Ors.5
In the Patna High Court, a case was decided where it distinguished the English
law from the contemporary Indian law. It explained how after the enactment of
TPA no mere contract of sale of property can’t be considered as transfer of
property and thus s.14 would not be attracted.
It was cited to directly affect the decision of the current case and the legal analysis
was spot on and very pertinent to the current case.
B. FOREIGN JUDGEMENTS
1. Woodall v. Clifton6
In this case “it was held that a proviso in a lease giving an option to the lessor to
purchase the fee simple of the land at a certain rate was invalid as infringing the
rule against perpetuity”.
It was cited as this case was distinguished by the Patna High Court in Ganesh
Sonar.
2. Midler v. Traffword7
In said case Justice Farwell held that the covenant in a lease for renewal was not
strictly a covenant for renewal but was a covenant running with the land thus free
form the rule of perpetuity.
It was cited to explain the English law on the regard of running covenants,
renewal clauses and rule of perpetuity.
3. Weg Motors Ltd. v. Hales and Ors.8

5
Ganesh Sonar v. Pumendu Narayan Singha and Ors. (1962) Patna 201.
6
Woodall v. Clifton (1905) 2. Ch.257 [UNITED KINGDOM].
7
Midler v. Traffword (1901) 1 Ch.54 [UNITED KINGDOM].

P a g e | 10 Case Analysis: R. Kempraj v. Barton Sons and Co.

 Justice Farwell yet again observed, “But now I will assume that this is a covenant
for renewal running with the land; it is then in my opinion free from any taint of
perpetuity because it is annexed to the land.”
It was cited again for the reason of drawing corelation to running covenants,
renewal covenants and rule of perpetuity.
4. London & South Western Rly. v. Gomm9
Sir George Jessal held that if a covenant “binds the land it creates an equitable
interest in the land.”
It was cited to be distinguished from the Indian jurisprudence that a covenant can
never create an interest in the property as TPA does not provides for it.

JUDGEMENT

 In Personam [CONCRETE JUDGEMENT]

The Appeal was dismissed and the verdict from the tribunal was upheld, that is the decree
was granted and the lessor was made to oblige the renewal of the lease according to the
deed.
 In Rem [RATIO DECIDENDI]
The judgement dealing with quite a unique case also delivers a quite unique and case
specific RATIO:
In cases where a similar kind of covenant relating to the renewal of lease deed would be
of question, the covenant and thus the deed would not be hit by the rule of perpetuity u/s
14 of TPA.

8
Weg Motors Ltd. v. Hales and Ors. [1961] 3 A.E.I.R.181[UNITED KINGDOM].
9
London & South Western Rly. v. Gomm [1882] 20 Ch.D.562 [UNITED KINGDOM].

P a g e | 11 Case Analysis: R. Kempraj v. Barton Sons and Co.

 REASONING

The judgement is comprised of various cases mostly from English Jurisprudence along with
commendable commentaries on the subject matter “Rule against perpetuity” to substantiate their
decision. Firstly, the court clears basic terminologies and concepts relating to the matter at hand
like ‘Transfer of Property’ which is the conveyance of property among living beings; ‘Lease’
which is not a mere contract but the transfer of a right to enjoy and thus creates an interest in the
land in rem; finally, ‘Rule Against Perpetuity’ the court summarises s.14 of TPA and explains
the intention and nexus behind said rule which is protection of the right of alienation.

Now, the court’s first line of reasoning begins from the fact that s.14 is to apply only in cases of
Transfer of Property. Here, even if a lease deed is considered under the expression of ‘transfer of
property’, such transfer is technically only for 10 years; any covenant of renewal does not create
any interest in lease property but only renews the prior already existing one. Thus, as this
covenant does not create any interest in the property it can’t be said to be in the ambit of ‘transfer
of property’ and thus can’t be hit by the rule of perpetuity.

This point is further substantiated by a Patna High Court decision Ganesh Sonar v. Pumendu
Narayan Singha and Ors.10 Where there was a covenant in the lease deed which allowed the
lessor to take possession of the lease property in specific conditions, this was in turn in
contravention of English law which said a covenant which allows the lessor to buy lease property
for a fee simple is void as it’s hit by the rule of perpetuity. The Patna High Court distinguished
this English law form the Indian perspective as after passing of TPA no mere contract of sale of
immovable property can create any interest in the property, thus in Ganesh Sonar the option
given by the lessee to the lessor to resume the lease hold land was only a personal covenant and
thus saved from the application of s.14. Thus, this case was directly applied on the present case
as such covenant of renewal is only a personal covenant and no way creates and interest and thus
isn’t hit by the rule of perpetuity.

The next point arises is whether such a renewal covenant is a covenant running with the land.
Landmark English cases in these regards were cited which established that a covenant for
renewal would be a covenant running with the land and thus no question of perpetuity would

10
Supra, see note 5.

P a g e | 12 Case Analysis: R. Kempraj v. Barton Sons and Co.

arise. Further, the provision for such covenants in the TPA, s.40 was discussed. But the Indian
law was distinguished by the English counter part by the help of Mulla’s commentary on
Transfer of Property Act, which elucidated the fact that right of the covenantee cannot be
considered as an interest in the property for the reason that TPA does not recognises the concept
of equitable estates; in simple words as a mere contract/covenant can only be considered as much
as a sale of property but in no way a ‘transfer of property’.

Justice A.N. Grover then very beautifully concluded by explaining that, “Even on the footing
that the clauses relating to renewal in the lease, in the present case, contain covenants running
with the land the rule against perpetuity contained in Section 14 of the Act would not be
applicable as no interest in property has been created of the nature contemplated by that
provision.”

CRITICAL ANALYSIS AND CONCLUSION

The present is a landmark judgement in the explanation and application of s.14 of TPA and till
this day is taught and used as an important authority. When a lessor attached a renewal clause to
a lease deed, he was by natural law bound by his own covenant, but when the lessee wanted to
enforce this provision and renew his lease for another 10 years the lessor goes back on his word
refuses to honour the deed, and further even challenge its validity till the Apex Court on the
superficial ground that it violates the rule against perpetuity as enshrined u/s 14 of TPA.

The judgement itself is not the most comprehensive one but it quite clearly explains all the point
that the court touched upon while coming onto the decision that such a covenant would not be hit
by the rule of perpetuity. It goes on to first explain how all these concepts work in contemporary
jurisprudence, by the help of commentaries, judgements though of lower jurisdiction and
authority but still embraced as they give perfect logical reasoning. Further, the judgement is also
an important authority on interplay of various aspects and concepts of Property law
Jurisprudence.

The bench very selectively dissects the rule of perpetuity which is found u/s 14 of TPA i.e., they
explain how rule of perpetuity might very well be applicable in case of a lease deed which is
even though only a transfer of right to enjoyment but is still very well a ‘transfer of property’.
But a mere covenant which is present in said deed does would in no way be hit by the rule of

P a g e | 13 Case Analysis: R. Kempraj v. Barton Sons and Co.

perpetuity as such a covenant may only create an obligation of sorts to follow but never under
the TPA a covenant may create an interest in suit property, and as the rule of perpetuity may only
be invoked when an actual transfer has happened i.e., an actual vesting of interest.

The latter half of the judgement, it is contemplated by the court whether such a covenant would
be considered a covenant running with the land. By a comparison of English law and s.40 of
TPA which deals with any Burden of obligation imposing restriction on use of land, or of
obligation annexed to ownership but not amounting to interest or easement. Which in affect
explains the concept of such negative covenants and covenants running with land and how would
be binding on the successive transferees given they had a notice of such a covenant. Finally, it is
explained that even if such a covenant might be running with the land it would not be hit by the
rule of perpetuity as the TPA has never recognised the concept of an equitable estate is nowhere
to be found under the principal law relating to properties in India TPA, in essence which means
that by the way of a covenant no real interest may be created in any property.

In the personal opinion of the researcher the judgement was fairly a small one spanning only 4
pages including the citations in effect only approx. 1500 words long. The themes and concepts
discussed and talked about in the decision are quite vast and comprehensive and in researcher’s
personal opinion four A4 sized pages don’t do these topics/ concepts justice for example the
correlation of rule of perpetuity and s.40 was discussed in a very hasty and complicated matter
which could only be understood by prior thorough research and knowledge on the topic. Now,
this might not be a problem for the legal fraternity but as law is a social phenomenon it should be
accessible to the common man, which to be honest wouldn’t be possible by the quality and
intricacy of this ruling. On the contrary a leeway might be given to the fact that the said
judgement is 42 years old and much has changed since then i.e., this sentiment of accessibility of
law to common man would’ve only concerned with the upholding of law and order and
providing justice to members of the society.

In researcher’s regards this special appeal was only a last desperate attempt of the lessor aimed at
protecting his own interest in said property which was already waived off when he signed on the
lease deed containing a covenant for the renewal of deed. Now objectively speaking the case
does not even remotely touch or tread upon the territory of ‘rule of perpetuity’. S.14 only
provides that a property might be perpetually transferred among living beings but to only one

P a g e | 14 Case Analysis: R. Kempraj v. Barton Sons and Co.

unborn person i.e., a father can’t create a remote interest in the property for his son then his
grandson then his grand-grandson and further on. So, in effect s.14 deals and prohibits
successive vertical transfer of property. Coming to the case at hand no such scenario is apparent
the transfer was only a single fold and that too in the favour of a living being; on the flip side as
already explained s.14 only deals with ‘transfer of property’ and obviously a personal covenant
would be excluded form this definition. In researcher’s opinion apparently the respondent’s
contentions were based on the fact that this renewal clause may extend to perpetuity and this the
closest provision which he sought fit to apply was s.14 rule against perpetuity completely
ignoring the actual meaning and application of the provision.

Finally, the researcher wants to point out how Indian jurisprudence has outgrown and developed
form its original English common law [strictly in regards of Property Law Jurisprudence]. It
was very evident form the rulings of Patna High Court and even the case at hand that the Indian
jurisprudence has developed into something different and independent of the original English
common law. The most important instance from this judgement, TPA does not recognises the
idea of Equitable Estates even though the traditional English law does but still outgrowing the
colonial common law India doesn’t recognises such superficial concepts. Thus, even in very
small regards India has matured from England’s initial common law though it is still very much
prevalent in other aspects (TPA itself is a colonial law) but still its commendable and gives us a
positive light for the future where India respecting its own sovereignty create/amend/codify laws
which are completely indigenous. This hope could be realised sooner than expected as recently
there were news of overhauling the colonial criminal law which is still being followed after 73
years of Independence.

P a g e | 15 Case Analysis: R. Kempraj v. Barton Sons and Co.