IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 515 of 2000(C)
1. PRINCY
... Petitioner
Vs
1. JOSE
... Respondent
For Petitioner :SRI.RENJITH THAMPAN
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/03/2009
O R D E R
"C.R."
THOMAS P.JOSEPH, J.
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S.A. No.515 of 2000
AND
S.A. No.920 of 2000
= = = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 13th day of March, 2009
J U D G M E N T
———————-
The substantial questions of law raised for a decision are as to
the character and enforceability of a covenant by the assignee of
the covenantee.
2. Short facts necessary for a decision of these second
appeals are: The building, portions of which are involved in these
appeals together with the land whereon it was situated originally
belonged to Cherchi (hereinafter called “the covenantee”). She, as
per Ext.A1, assignment deed No.2449/1968 dated 13.8.1968 sold the
southern half of the building and land to Enasu with a covenant
which is as follows:
“…though one half of the northern wall of
the building in the schedule property is included
in this (deed), in case of reconstruction of the
said building (in the portion assigned under
Ext.A1), separate wall shall be constructed in
such a way as not to cause damage to the
northern wall and leaving a space of 12 fingers
towards south from the said wall….”
S.A. Nos.515 & 920 of 2000
-: 2 :-
On the same day the northern portion of the building and the land was
assigned to the respondent/defendant as per assignment deed
No.2450/1968 (the date mentioned at the beginning of the document
is 18.3.1968 which is obviously a mistake), the certified copy of which
is Ext.A2. A similar covenant as provided in Ext.A1 and extracted
above was made in Ext.A2 also directing the respondent to leave the
same space towards north from the common wall. Enasu who got the
southern portion of the building and land as per Ext.A1 assigned that
portion to John as per Ext.A3, assignment deed dated 7.7.1973. John
reconstructed the building in the southern portion complying with the
covenant contained in Exts.A1 and A3 and assigned the reconstructed
building and land to the deceased first appellant (first plaintiff) as per
Ext.A4, assignment deed dated 29.5.1974. Second appellant/second
plaintiff is the husband of the first appellant. While they were in
possession and enjoyment of the building and land as per Ext.A4,
respondent started reconstructing his portion of the building on the
northern portion. Appellant Nos.1 and 2 instituted the suit for a decree
for prohibitory injunction to restrain the respondent from constructing
the building without leaving space at a width of 12 fingers as directed
in Ext.A2, the assignment deed in his favour. No interim order was
passed in the suit. Even when the suit was pending, respondent
S.A. Nos.515 & 920 of 2000
-: 3 :-
proceeded with the construction. Thereon plaint was amended
incorporating a prayer for mandatory injunction to direct the
respondent to remove the portion of the building allegedly constructed
with the space of 12 fingers from the boundary wall. Learned Munsiff
held that the intention of the covenantee was to safeguard the
remaining portion of the building, there was no intention to retain the
common wall for ever without any support and without making it as
part of the building and since both sides have reconstructed the
portion of the building in the lands assigned to them it is not necessary
to leave any space as per the covenant. However, since the
respondent was found to have trespassed into the land belonging to
the appellant, mandatory injunction was granted directing the
respondent to demolish the construction he made within the southern
half of the common wall. Respondent took up the matter in appeal.
Appellant Nos.1 and 2 preferred Cross Appeal in so far as learned
Munsiff refused to enforce the covenant. The first appellate court
while agreeing with the learned Munsiff as to the intention of the
covenantee, held that as the covenantee (transferor) has assigned the
remaining portion of the property without leaving anything to be
enjoyed further, the assignee from the covenantee cannot enforce the
covenant. The first appellate court also held that the common wall
S.A. Nos.515 & 920 of 2000
-: 4 :-
became the exclusive wall of the respondent, the allegation of
trespass is not proved and accordingly allowed the appeal, dismissed
the cross appeal and non-suited appellant Nos.1 and 2. Hence these
second appeals.
3. Learned counsel for appellants contended that the view
taken by the first appellate court that the covenant is not enforceable
by the assignee of the covenantee is not sustainable in law and
placed reliance on the decisions in Leela v. Ambujakshy (1989
(2) KLT 142) and Joseph George v. Chacko Thomas (1992
(1) KLT 6). Learned counsel also assailed the finding of the courts
below as to the interpretation given to the covenants in Exts.A1 and
A2 and the finding of the first appellate court that the common wall
now exclusively belongs to the respondent and that the trespass
alleged is not proved.
4. In Ext.A3, assignment deed in favour of John executed by
Enasu (the assignee under Ext.A1), it is stated that in case the
assignee (John) is reconstructing the building (in the southern portion),
he shall comply with the covenant contained in Ext.A1. Admittedly,
John reconstructed the building complying with the covenant in Ext.A1
in the southern portion he took as per Ext.A3 and later sold to
appellant No.1 as per Ext.A4. Exhibits A1, A3 and A4 which conferred
S.A. Nos.515 & 920 of 2000
-: 5 :-
title and possession of the southern portion of the building on
appellant No.1, and her assignors there is no specific assignment of
the benefit of the covenant imposed on the respondent as per Ext.A2.
Learned counsel for the respondent therefore argued that the
covenant in Ext.A2 being positive in character, cannot be enforced by
an assignee from the covenantee since according to the learned
counsel, a positive covenant though for the beneficial enjoyment of the
property of the transferor (covenantee) binds only the parties to the
contract (Ext.A2 in this case). The character of the covenant in
Ext.A2 is required to be decided.
5. Tulk v. Moxhay (1848) 2 Ph. 774) = (1843-60) All E.R.
9), is one of the earliest decisions concerning the nature, character
and enforceability of covenants. A covenant between vendor and
purchaser on the sale of the land that the purchaser and his assigns
shall use or abstain from using the land in a particular way was held to
be enforceable in equity against all subsequent purchasers with
notice. It was then thought whether the rule laid down in Tulk’s
case as to the enforceability of covenant against an assignee of the
covenanter on the doctrine of equity applied regardless of whether
the covenant is affirmative or restrictive (negative) in character. The
question was answered in the decisions in Haywood v. The
S.A. Nos.515 & 920 of 2000
-: 6 :-
Brumswick Permanent Benefit Building Society (1881) 8
QBD 403), London and South Western Railway Co. v.
Gomm (1882) 20 Ch.D. 562) and Austerberry v. Corporation
of Ordham (1885) 29 Ch.D. 750). Brett, L.J. said in Haywood’s
case on the rule in Tulk’s case that:
“….it seems to me that the case decided
that an assignee taking the land subject to a
certain class of covenants is bound by such
covenants if he has notice of them, and that the
class of covenants comprehended within the
rule is that covenants restricting the mode of
using the land only will be enforced……”
(emphasis supplied)
Jessel M.R. said in London and South Western Railway Company’s
case that:
“….the covenant in Tulk v. Moxhay was
affirmative in terms, but was held by the court
to imply a negative. Where there is a negative
covenant expressed or implied, as, for
instance, not to build so as to obstruct a view,
or not to use a piece of land otherwise then as
S.A. Nos.515 & 920 of 2000
-: 7 :-a garden, the court interferes on one or other
of the above grounds….”
Sir James Hannen said in the same case that the decision in
Haywood’s case (referred supra),
“put a wholesome restriction upon the
application of Tulk v. Moxhay by laying down
this rule that is only applies to restrictive
covenants, and does not apply to an affirmative
covenant such as …..”
Austerberry’s case also held that the doctrine in Tulk v. Moxhay is
limited to restrictive (negative) covenants. The Indian law follows the
law in England relating to enforceability of covenants as laid down in
Tulk v. Moxhay and the later decisions. Sections 11 and 40 of the
Transfer of Property Act (for short, “the Act”) deal with enforcement of
covenants.
6. Section 11 of the Act reads thus:
“11. Restriction repugnant to
interest created.- Where, on a transfer of
property, an interest therein is created
S.A. Nos.515 & 920 of 2000
-: 8 :-
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 immovable 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”.
Section 40 of the Act reads thus:
“40. Burden of obligation imposing
restriction on use of land.-Where, for the
more beneficial enjoyment of his own
immovable property, a third person has,
independently of any interest in the immovable
property of another or of any easement
thereon, a right to restrain the enjoyment in a
particular manner of the latter property, or
Where a third person is entitled to the
benefit of an obligation arising out of contract
S.A. Nos.515 & 920 of 2000
-: 9 :-and annexed to the ownership of immovable
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, nor
against such property in his hands”.
Section 11 refers to positive covenants and Sec.40, negative
covenants. Even between the transferor and transferee a condition
that the property would be enjoyed by the transferee in a particular
manner would be void. But such a restriction will be saved if it is for
the beneficial enjoyment of the property retained by the transferor, by
the second part of Sec.11. In Leela v. Ambujakshy (referred supra)
this Court considered the scope of application of a positive covenant
under the second part of Sec.11 of the Act. In Joseph George v.
Chacko Thomas (referred supra) the Division Bench ruled that a
positive covenant for the beneficial enjoyment of the property of the
transferor is saved only as between the parties to the transfer as per
Sec.11, but a negative covenant for such beneficial enjoyment would
be binding not only the original parties but even on subsequent
S.A. Nos.515 & 920 of 2000
-: 10 :-
transferees.
7. Are the covenants provided in Exts.A1 and A2 and
extracted above, negative in character? The covenant is that while
reconstructing the building, the assignees (covenanters) of Exts.A1
and A2 shall leave a space having width of 12 fingers to their
respective side from the common wall. It is true that negative
words are not invoked in Exts.A1 and A2 while describing the
covenant. But the absence of negative words cannot by itself always
indicate that the covenant is of positive character. To decide that, one
has to look into the substance of the covenant. The Calcutta High
Court held in Kumar Chandra v. Narendra Nath (AIR 1930
Calcutta 357):
“absence of negative form of expression
in a covenant is immaterial when from the
substance of the agreement a negative
agreement can be seen to be implied and the
principle of restrictive covenants will then
apply”.
Similar view was taken by the same Court in Moti Lal Doga v.
Iswar Radha Damodar (AIR 1936 Calcutta 727). There, the
S.A. Nos.515 & 920 of 2000
-: 11 :-
covenant sought to be enforced was to keep pillars of 12 cubits in
dimension in the land. It was held (on admission by the parties) that it
was a negative covenant although positive in form. In this case, the
covenant is to leave a space having width of 12 fingers to the
respective sides from the common wall in case the assignees of the
respective portions wanted to reconstruct their portion of building.
The covenant forbids the assignees under Exts.A1 and A2 from
constructing any portion of the building within the space having width
of 12 fingers from the common wall. The covenant though positive in
form, is truly negative in its essence and character.
8. In this case the covenant is sought to be enforced by an
assignee from the covenantee (transferor under Exts.A1 and A2) against
the covenanter (respondent), he being the assignee from the covenantee
(transferor) under Ext.A2. The covenant is sought to be enforced
against the covenanter himself. Even without reference to the second
part of Sec.11 of the Act the covenant could said to be enforceable against
the respondent as it satisfied the requirements of Sec.40 of the Act.
9. Then the question is whether the deceased first appellant
being an assignee from the covenantee, the additional appellants
could enforce the negative covenant in Ext.A2 without a specific
assignment of the benefit of the covenant in favour of the deceased
S.A. Nos.515 & 920 of 2000
-: 12 :-
first appellant? Exhibits A1, A3 and A4 as per which she acquired title
do not specifically assign the benefit of the covenant provided under
Ext.A2. Collins L.J. stated in Rogers v. Hosegood (1900) 2 Ch.D.
388) thus:
“…these authorities establish the
proposition that, when the benefit has been
once clearly annexed to one piece of land, it
passes by assignment of that land, and may be
said to run with it, in contemplation as well of
equity as of law, without proof of special
bargain or representation on the assignment.
In such cases it runs, not because the
conscience of either party is affected, but
because the purchaser has bought something
which inhered in, or was annexed to, the land
bought”.
(emphasis supplied)
Following these observations the Calcutta High Court in
Mathewson v. Ram Kanai Singh Deb. (1909) XXXVI ILR
Calcutta 675) held thus:
“..one very important test whether the
S.A. Nos.515 & 920 of 2000
-: 13 :-
benefit of burden of a covenant or contract in
any particular case runs with the land or not is
whether such covenant or contract in its
inception binds the land. It is does, it is then
capable of passing with the land to subsequent
assignees, if it does not, it is incapable of
passing by mere assignment of the land….”
(emphasis supplied)
Therefore, if the covenant bound the land at the inception it goes with
the land for the benefit of the assignee of the covenantee and a
specific assignment of the covenant in favour of the assignee (of the
covenantee) is not required.
10. Halsbury’s Laws of England, Vol.14, 3rd Edn. (Page
564) states as regards covenants running with the land in equity
that the equitable doctrine relating to restrictive covenants is confined
to covenants of a negative nature. It states that:
“Where a vendor retains land which is
sufficiently defined and which is capable of
being benefited by the covenant at the time
when it is imposed, and the covenant is
expressed to be for the benefit of that land and
every part thereof, then the benefit of the
S.A. Nos.515 & 920 of 2000
-: 14 :-covenant is annexed to the land and passes on
a subsequent conveyance of the land or any
part thereof without express mention, even
though the purchaser is not aware of the
existence of the covenant. It constitutes an
equitable interest in the land and passes, not on
the ground that a subsequent purchaser has
expressly bought it, but because it inheres in or
is annexed to the land which he has brought.
Moreover, although the covenant is not taken
for the benefit of the defined land “or any part
thereof”, yet the benefit will pass on an
assignment of part, if the conveyance shows an
intention that the covenant should be annexed
to each part of the land”.
In this case it is seen from Ext.A1 and A2 that the covenant not to
construct any portion of the building within a space of 12 fingers from
the common wall on either side was stipulated for the protection of
the common wall (as it then stood) which was necessary for
enjoyment of the respective portions of the building. That covenant
being negative in character bound the land at the very inception and
hence in my view runs with the land for the beneficial enjoyment of
which it was imposed. Hence, a specific assignment of the benefit of
the covenant in favour of the assignees of the covenantee is not
S.A. Nos.515 & 920 of 2000
-: 15 :-
required. That apart, Exts.A1, A3 and A4 show that while assigning
the southern portion of the building and the land to Enasu, John and
appellant No.1, respectively all rights of the vendor (which should
include the benefit of the covenant imposed on the respondent under
Ext.A2) in the property was conveyed to the purchasers. Hence the
assignee of the covenantee was entitled to enforce the covenant
against the respondent.
11. Then the question is whether in enforcement of the
negative covenant in Ext.A2 a mandatory injunction could be issued
directing the respondent to demolish the building constructed within
the space having the width of 12 fingers? Learned counsel for
respondent contends that a reading of the covenant in Exts.A1 and
A2 would show that it is only for protection of the common wall so long
as it existed that the covenant has life. The covenant imposed by the
covenantee on the assignees of the two portions of the building, as
could be understood on a reading of the relevant documents (Exts.A1
and A2) was intended for the protection of the common wall. If any
of the assignees under Exts.A1 and A2 wanted to reconstruct his part
of the building, he was required to leave a space of 12 fingers from
the common wall. I have no reason to think that the covenantee
wanted the common wall to remain as such for all times to come
S.A. Nos.515 & 920 of 2000
-: 16 :-
without any support from either side and even after the assignees of
the two portions reconstructed their portion of the building. In this
case it is admitted by the appellants that John, the assignor of
appellant No.1 has reconstructed the building in his part of the land.
The common wall is not retained by the parties. Therefore at the
time when the respondent was reconstructing the building in the
northern portion it was not necessary to leave the space having width
of 12 fingers. In that situation appellants could not enforce the said
covenant against the respondent. I do not find anything illegal or
irregular in the first appellate court taking that view on an
interpretation of the relevant covenant in Exts.A1 and A2. Hence the
prayer for mandatory injunction directing the respondent to remove
the portion of the building falling within the space of 12 fingers cannot
stand.
12. It is contended by the learned counsel for appellants that
there are other positive covenants in Ext.A2 which required the
respondent to provide sluice gutter to prevent water falling on the
common wall, etc. According to the learned counsel, respondent is
bound to comply with those covenants. I do not consider it necessary
to go into the question of enforceability of those positive covenants in
these appeals since no relief in that line is asked for in this suit. The
S.A. Nos.515 & 920 of 2000
-: 17 :-
question whether those covenants are enforceable by the assignees
of covenantee has to be decided in appropriate proceedings.
13. It is lastly contended by the learned counsel for the
appellants that at any rate, respondent trespassed into the half
portion of the common wall belonging to the appellants and that the
trespass being after the institution of the suit, first appellate court
was not justified in interfering with the mandatory injunction granted
by the learned Munsiff directing the respondent to demolish that part
of the building. Learned counsel invited my attention to Ext.C1, report
of the Advocate Commissioner.
14. I have gone through the report of the Advocate
Commissioner. It is not clear whether there was any trespass areally
or otherwise. Moreover, there was no order of injunction in force at
the time the alleged construction was made. I do not forget that the
court is not powerless to mould relief taking into account events that
took place after the institution of the suit. But the mandatory
injunction prayed for being on the strength of title claimed by the
appellants, that relief could not be granted on surmises and
conjectures. The alleged trespassed area must be measured and
properly identified before relief is granted. Such evidence is not
available in this case. First appellate court therefore was justified in
S.A. Nos.515 & 920 of 2000
-: 18 :-
interfering with the mandatory injunction granted by the learned
Munsiff. But the observation made by the first appellate court in
paragraph 9 of its judgment that the common wall became the
exclusive wall of the respondent, on the facts, evidence and
circumstances of the case was not warranted. That question has to
be decided in appropriate proceeding. I make it clear that it will be
open to the appellants to sue for recovery of possession or mandatory
injunction as the case may be, in case there is any trespass into the
portion of the land belonging to them if they are otherwise entitled to
such a course.
With the above observation these second appeals are
dismissed. No costs.
THOMAS P.JOSEPH, JUDGE.
vsv
THOMAS P.JOSEPH, J.
===================
S.A. NO. 515 OF 2000
AND
S.A. NO.920 OF 2000
===================
J U D G M E N T
13TH MARCH, 2009