Restriction Repugnant to the Interest Created
Introduction
Section 11 of the Transfer of Property Act, 1882 deals with conditions that restrict the use or enjoyment of property after it is transferred.
The law protects the rights of the transferee (person receiving property) by invalidating unreasonable restrictions imposed by the transferor.
Meaning / Definition
A restriction is said to be repugnant (inconsistent or conflicting) when it goes against the nature of the interest created.
Rule:
- When property is transferred absolutely (fully), the transferee gets full rights of use and enjoyment.
- Any condition restricting such enjoyment is void.
The transferee can ignore such conditions and use the property freely.
Modes or Types
Absolute Transfer with Restriction
- When ownership is fully transferred, the transferee gets full control.
- Any restriction on use is void.
Examples:
- Condition not to demolish a house.
- Condition to use land only for specific crops.
Postponement of Enjoyment
- Restricting enjoyment during minority (below 18 years) is valid.
- Restricting enjoyment beyond minority is void.
Restrictive Covenant (Section 40)
A restrictive covenant is a condition imposed for the benefit of another property.
Negative Covenant
- Restricts the use of land (example: not to build).
- Valid if:
- It benefits another property.
- It runs with the land (binds future owners).
- Enforceable against persons with notice (knowledge of the condition).
Positive Covenant
- Requires doing something (example: maintain property).
- Burden does not run with the land.
- Not enforceable against future transferees.
Exceptions
- Restriction is valid if imposed for the benefit of another property owned by the transferor.
- Such conditions are allowed under Section 40.
Important Case Law
-
Lloyd v. Webb
- Condition postponing enjoyment beyond minority held void.
-
Tulk v. Moxhay
- Negative covenant restricting construction was enforced.
- Established that such covenants bind future owners with notice.
-
Austerberry v. Oldham Corporation
- Positive covenant not enforceable against future transferees.
Distinction / Comparison
| Basis | Repugnant Condition | Restrictive Covenant |
|---|---|---|
| Nature | Restricts enjoyment of own property | Restricts for benefit of another property |
| Validity | Void | Valid (if conditions satisfied) |
| Scope | Personal restriction | Runs with land |
| Example | Cannot demolish house | Cannot build on land for neighbour’s benefit |
Practical Example
- A sells a house to B with condition not to demolish it. B can ignore this and demolish.
- A sells land to B with condition to grow crops only. B can use land for any purpose.
- A sells land with condition not to build, for benefit of his nearby house. This may be valid as a restrictive covenant.
- A imposes duty to maintain road. Future owners are not bound (positive covenant).
Summary
- Section 11 invalidates restrictions on enjoyment of transferred property.
- Absolute transfer gives full rights to transferee.
- Conditions restricting use are void.
- Exception: restrictions benefiting another property are valid.
- Negative covenants run with land and are enforceable.
- Positive covenants do not bind future owners.