NAME: ARAVIND.

A
SEC 03
ROLL NO: 20181BAL0009

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 PROPERTY LAW.

Manohar shivram swami v Mahadeo Guruling Swami.

FACTS:
In Manohar shivram swami v. Mahadeo Guruling Swami [18] A and B were
first cousins. A made a will of property in favor of B. The court held that the condition
incorporated in the sale deed absolutely restrained C from parting with his interest in the
property and therefore was void.

ISSUESS:
The substantial question of law formulated by my brother Jahagrirdar J.at
the time of admitting this second appeal is whether the condition put in the sale deed
executed by plaintiff in favor of dependent No. 1 is hit by Section 10 of the Transfer of
Property Act?

JUDGMENTS:

1. This is a plaintiff's second appeal. The facts, so far as they are material for the
disposal of this second appeal, are these: Plaintiff-appellant Manohar is one Shivram's
son. This Shivram had two other brothers by name Hari and Vithu. Defendant No. 1 -
- Respondent No. 3 Dhondubai and one Dattu were the two issues of Hari. Defendants
Nos. 2 to 5 (Respondents Nos. 1, 2, 4 and 5) are sons of Vithu. The properties in
disputes consist of land and a house. All these properties originally belonged to Dattu.
Bya will dated 13th June, 1962 he bequeathed them to the plaintiff. The properties
vested in the plaintiff for good on the death of Dattu in 1966. The plaintiff executed a
sale deed in respect of these properties in favour of defendant No. 1 on 22nd June,
1968. It appears that the parties are Jangams by caste. One of the vendees' covenant
is: "If it is necessary to transfer the aforesaid property by any instrument, I shall
transfer it into your Jangam family and not to others. The property is sold on this
condition." Thereafter Defendant No. 1 executed a sale deed in favour of defendant
No. 6 in respect of the house property alone on 14th April, 1971.

2. Plaintiff sued Defendants Nos. 1 to 6: for a perpetual injunction restraining them

from interfering with his possession of the suit property, on the allegation that by

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selling away the suit property to Defendants Nos. 2 to 5, defendant No. 1 had
committed breach of the covenant extracted above by me. It is not necessary to refer
to other averments made by him in the plaint, as they are not material for disposal of
this second appeal. The trial Court held that defendant No. 1 had committed breach
of the aforesaid covenant. It negative the Defence that the aforesaid limitation was
void under Section 10 of the Transferor Property Act. Eventually the trial Court passed
a decree in favour of the plaintiff declaring that the sale-deed executed by defendant
No. 1 in favour of Defendants Nos. 2 to 5 was void and not binding on the plaintiff. It
further directed defendants Nos. 2 to 5 to recovery the property to the plaintiff for Rs.
2000/-, which is the consideration paid by them to Defendant No. 1.

3. In the appeal carried to the District Court, the learned Extra Assistant Judge took
the view that the restriction quoted in the first paragraph of the judgment was void,
being hit by Section 10 of the Transfer of Property Act. Resultantly he upheld the
validity of the sale-deed. He negatives the plaintiff's alternative stand based on breach
of covenant. According to him defendants Nos. 2 to 5 who are first cousins of plaintiff
and defendant No. 1 also belong to the Jangam Gharana of the plaintiff. Accordingly
he allowed the appeal, dismissing the suit in its entirety with costs.

4. The substantial question of law formulated by my brother Jahagirdar J. at the time

of admitting this second appeal is whether the condition put in the sale-deed executed
by plaintiff in favour of defendant No. 1 is hit by Section 10 of the Transfer of Property
Act? This question is practically concluded by a Division Bench decision of the
Allahabad High Court , Gayashi Ram v. Shahabuddin. In that case, the sale deed
included a clause providing that the vendee would not transfer the subject matter of
sale, namely a house, by mortgage, gift or sale to any one excepting the vendor or his
heirs, and that if the house was transferred in contravention of that term then-the
vendor or his heirs would have a right to get back the house by paying Rs. 175A
instead of Rs. 150/- which the vendor has originally received. Now in the case before
me, plaintiff's learned Counsel contends that the phrase would mean only the plaintiff
or his heirs, and not even the cousins of the plaintiff as held by the District Court. The
term as used in Marathi covers a wider amplitude than the word is a far more apt and
correct rendering of the word 'family' as we understand this term in English. I have no
hesitation to endorse the conclusion that a first cousin will very much belong to
plaintiff's stock. There is thus no breach of the condition incorporated in the sale
deed....

5. It is true that defendants Nos. 2 to 5 have further transferred a part of the property,
namely, the house to defendant No. 5 who does not admittedly belong to the Jangam
fold. However, the covenant incorporated in the sale deed executed by the plaintiff
cannot be said to be one running with the land. There would thus be no actionable
breach of this covenant by this subsequent sale deed of 14th April, 1971.

6. Even assuming that the learned Counsel is right in her submission that the
defendant No. 1 has committed breach of the covenant, that does not advance the
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plaintiff's case to any extent, because the condition would be void under Section 10 of
the Transfer of Property Act. The Allahabad High Court has ruled in Gayashi Ram "in
order to see whether there is absolute restraint or not, one has to examine the effect
of all the conditions and find whether for all practical purposes alienation is prohibited.
The mere fact that there may be some remote contingency in which there may be a
possibility of an alienation taking place would not necessarily take the case out of the
prohibition contained in Section 10." With respect, I agree with these observations of
the learned Judges. The ratio of this decision applies to the case before me on all
fours. The finding of the District Court will have to be upheld that the conditions
incorporated in the sale deed executed by the plaintiff in favour of defendant No. 1 is
void under Section 10 ibid. Broach of the condition, even if assumed to be proved, is
neither here nor there.

7. No other point was argued before me. This second appeal has no merit, and is
accordingly dismissed with costs.

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2) SANTHAKUMARAN V. VIVEKANADAN:

FACTS:
Petitioner is the defendant in O.S.No.279 of 2006 on the file of the Court of
Munsiff, Chittur. The suit is one for prohibitory injunction. Ext.P1 is the judgment in the
suit whereby the following decree is passed: "In the result, suit is hereby decreed as
follows (a) That the defendants and their men are hereby restrained by a permanent
prohibitory injunction from causing any obstruction or hindrance to the plaintiff in flowing
out the water from the plaint A schedule property and the mill situated therein through
the plaint B schedule water chal and further not to cause any material alteration or
damages to the plaint B schedule water chal. (b) That the parties shall suffer their
respective costs."

ISSUESS:
Whether a transferee of the covenanted is entitled to enforce the
covenants imposed for the beneficial enjoyment of the property acquired by
him? Were the courts below justified in dismissing O.S.No.261 of 2008 on
the ground that the defendant has not made out a cause of action when the
right of the defendant to use the plaint schedule property otherwise than for
vehicular access was denied by the plaintiff?

JUDGMENTS:
1) These second appeals arise from A.S.Nos.97 and 98 of 2010 on the file of the District
Court, Palakkad. A.S.No.97 of 2010 was an appeal preferred against the decision in
O.S.No.261 of 2008 and A.S.No.98 of 2010 was an appeal preferred against the
decision in O.S.No.410 of 2008. The aforesaid suits on the file of the Munsiff court,
Chittur were tried together, treating O.S.No.410 of 2008 as the lead case. 2)
O.S.No.410 of 2008 was a suit for mandatory injunction. The plaintiff is the brother of
the defendant. The plaint schedule property is part of a larger extent of property held by
the parents of the parties, viz., Dharmandi and akshayani. As per Ext.A4, they assigned
the property situated on the north of the plaint schedule property and the rice mill
therein to the defendant. While transferring the said property, the plaint schedule
property was retained for access to the said property as also to the remaining property

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of the vendors situated on the east of the plaint schedule property from the southern
public road. Since the plaint schedule property was intended for access to the property
given to the defendant, he was given one half undivided right over the same also as per
Ext.A4 sale deed. The remaining property of the vendors of the defendant situated on
the east of the plaint schedule property as referred to above was their residential
property. As such, in view of the existence of the rice mill in the property given to the
defendant, a few covenants were imposed on the defendant as per the itself to prevent
the possible nuisance on account of the functioning of the rice mill. The said covenants
obligate the defendant, among others, to construct a compound wall at a height of 8 feet
separating the properties given to the defendant and retained by the vendors; to keep a
gate opening to the plaint schedule property for entry to the rice mill on the western
extremity of the compound wall directed to be constructed; to construct 6 a compound
wall on the western boundary of the plaint schedule property and to maintain the gate at
the southern boundary of the plaint schedule property for the use of the defendant as
also the vendors by keeping one of its key with him and giving one key to the vendors. It
is beyond dispute that the defendant was enjoying the property pursuant to the after
complying with the covenants imposed on him. Later, the plaintiff purchased the
residential property retained by the vendors of the defendant as per Ext.B1 document.
After the death of the vendors of the parties, the remaining one half right in the plaint
schedule property devolved on both the plaintiff and defendant. The case of the plaintiff
is that the defendant has demolished the compound wall on the western boundary and
the gate installed on the southern boundary of the plaint schedule property on
29.3.2008. He, therefore, sought a decree of mandatory injunction directing the
defendant to restore the compound wall on the western boundary of the plaint schedule
property as also to erect and maintain the gate on its southern boundary. In the
meanwhile, the defendant has filed O.S.NO.261 of 2008 seeking a decree of permanent
prohibitory injunction restraining the plaintiff from causing obstructions to the user of the
plaint schedule property as access to the property covered by Ext.A4 sale deed. As
noticed above, the suits were tried together. By a common judgment, the trial court
decreed O.S.No.410 of 2008 and dismissed O.S.No.261 of 2008. The defendant
challenged the decision of the trial court in appeal. The appellate court, on a re-
appraisal of the evidence on record, confirmed the decision of the trial court. 4. The
learned Senior Counsel for the appellant contended that the covenants imposed on the
defendant as per the can be enforced only by the covenanted and the suit by the
plaintiff, who is the transferee of the covenanted, is not maintainable. The learned
Senior Counsel also pointed out that O.S.No.261 of 2008 was dismissed by the trial
court holding that the defendant has not made out a cause of action to institute such a
suit against the plaintiff. According to the learned counsel, in so far as the defendant
has one half undivided right in the plaint schedule property, the trial court was not
justified in dismissing O.S.No.261 of 2008 on the aforesaid ground when the plaintiff
has denied the right of the defendant to use the plaint schedule property for purposes
other than vehicular access.

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