RESTRICTIONS ON BENEFICIAL ENJOYMENT OF

ONES OWN LAND

School of Law, Mumbai

A Project Report,

In compliance to the partial fulfilment of the marking scheme, for Trimester VII of 3rd Year
B.B.A. LL.B(Hons), in the subject of PROPERTY LAW.

BY:
AYUSHI AGRAWAL
AO14, B.B.A. LL.B. (Hons.)
Academic Year- 2016-17

RESEARCH GUIDE,
PROF. ISHA KHURANA

Received by:
On date:
Time:
1

TABLE OF CONTENTS

S.NO.
1.
2.
3.
4.

CONTENTS
COVER PAGE
TABLE OF CONTENTS
LIST OF CASES
LIST OF STATUTES

P.NO.

iv.

1
2
3
3

CHAPTER-I
INTRODUCTION: MEANING AND SCOPE
5.

1.1 Importance of the Subject

1.2 Meaning Of Ownership Under Indian Jurisprudence And Property Law
1.3 Meaning Of Restrictions Of Enjoyment Of Property

4-5

CHAPTER- II
RESTRICTIONS BY GOVERNMENT
6.

2.1 Introduction

2.2 Relevant Provision Of- Ancient Monuments And Archaeological Sites

And Remains Act, 1958
CHAPTER-III
RESTRICTIONS BY PARTIES
3.1 The Laws Which Govern The Restrictions Put By Parties On
Beneficial Enjoyment Of Land
7.

3.2 The Relevant Provisions Under Transfer Of Property Act, 1882 On

Restrictions On Use Of Property

7-12

3.3 The Rights Protected Under Easements Act, For Use Of The Owner Of
The Property
CHAPTER-IV:
PRICIPLES GOVERNING RESTRICTIONS
8.

9.
10.

4.1 The Principles That Govern Such Restrictions On Use Of Property

13

CHAPTER-V:
CONCLUSION

14

REFRENCES

15

TABLE OF CASES
Bhavani Amma Kanakadevi v CSI Dekshina Kerela Maha Idavaka,
2008
AIR 2008 Ker 38
2002

DhavaniAmmaKankadevi v C.S.I. Dekshina Kerala MahaIdavaka,

AIR 2002 Ker 38

1882

G.P. Tripathi, The Transfer of Property Act, 1882, 15th ed.

1927

Mata Prasad v Nageshwar Sahai (1927) 47 All 484

1963

N. Manekal v BaiSavita, CA No 959 of 1963 decided on Oct 1(SC)

1884

Rosher v. Rosher (1884) 26 Ch D 801

1990

State of Rajasthan v Jeo Raj, AIR 1990 Raj 90

1883

Vyankatraya v Shivrambhat, (1883) ILR 7 Bom 256

Zoroastrian Co-operative Housing Society Ltd v. District Registrar Co-

2005
operative Societies AIR 2005 SC 2306

LIST OF STATUTES

1.

The Transfer of Property Act, (4 of 1882)

2.

Ancient Monuments and Archaeological Sites and Remains Act, 1958

CHAPTER-I:
INTRODUCTION: MEANING AND SCOPE

1.1 IMPORTANCE OF THE SUBJECT:

Understanding what role the right to exclude plays in defining property is important for several
reasons. It would be to no purpose, however, if property, once acquired, could not be used and
enjoyed, if rights of acquisition, enjoyment, and disposal were not legally protected.
In a nutshell, the basic rights that have been recognized by the courts, beyond the rights of
acquisition and disposal, are the right of sole dominion, variously described as a right to exclude
others, a right against trespass, or a right of quiet enjoyment, which all can exercise equally, at
the same time and in the same respect; and the right of active use, to the point where such use
does not violates the rights of others to quiet enjoyment. Thus, the common law limits the right
of free use only when a use encroaches on the property rights of others.

1.2 MEANING OF OWNERSHIP UNDER INDIAN JURISPRUDENCE AND PROPERTY

LAW:
The concept of Ownership has been defined by Jurists in different ways. The concept of ownership
consists of an innumerable number of claims such as liberty, power and immunity with regard to the
thing owned. One common understanding of the same is it is a complete or supreme right that can be
exercised over anything. Thus, according to Hibbert ownership includes four kinds of rights within itself.
1. Right to own and use the property
2. Right to exclude others from using it
3. Disposing or transfer of the property
4. Right to destroy or alienate it.
Property is a bundle of Rights and the term property in common parlance indicates the economic status of
a person. Any property is held by an individual to draw out benefit from it. At the same time, ownership of
the property is inclusive of some of the basic rights, such as a right to the title to the property, a right to
possess and enjoy it to the exclusion of everyone else, and a right to alienate it without being dictated to,
except in accordance with the provisions of law. The owner of a property has the absolute right and
discretion to deal with it in the way he wants to.
4

1.3 MEANING OF RESTRICTIONS OF ENJOYMENT OF PROPERTY:

An absolute right to dispose of the property indicates that the owner can sell it for consideration
or can donate it for religious or charitable purposes he may gift it to anyone, mortgage it or put it
up for lease. Save with the help of law, no other person can interfere with this power or right of
the owner or dictate to him, what should be the manner of alienation, should he alienate or not,
or even what kind of use it should be put to.
Restrictions upon the grantees right to transfer the property, at any time, to whomsoever he may
choose, and in whatever manner he may select, are called restraints on alienation.
Where on transfer of a property, an interest in it is created absolutely in favour of any person,
but the terms of the transfer direct that such interest will be applied by him in a particular
manner, he will be entitled to receive and dispose off such interest as if there were no such
direction. Any condition restraining the use of the property which has been transferred
absolutely is void. Such a condition would be repugnant to the interest created and the transfer
will be deemed to have been made as if there was no such condition in existence.

CHAPTER-II:
RESTRICTIONS BY GOVERNMENT

2.1 INTRODUCTION
Land is a subject falling within the powers of the State Governments under the Constitution of
India1 and hence, property laws in India may differ from State to State. Besides the local laws,
several laws enacted by the Central Government also govern acquisition and ownership of
property.
A landowner is entitled to use his/her property in such a way that maximizes his/her enjoyment.
However, the enjoyment must not unreasonably interfere or disturb the rights of adjoining
landholders or create a private nuisance. Thus, a landowner can use his/her property according
to his/her will upon the condition that such use will not disturb or injure any adjoining
landowner.
Hence, a landowner can put his/her property to any lawful use as far as s/he does not deprive the
adjoining owners right of enjoyment of his/her property. However, such use by the property
owner should not amount to a nuisance in law or must not be prohibited under the instructions by
the government.

2.2

RELEVANT

PROVISION

OF-

ANCIENT

MONUMENTS

AND

ARCHAEOLOGICAL SITES AND REMAINS ACT, 1958

Section 19: Restrictions on enjoyment of property rights in protected areas.(1) No person, including the owner or occupier of a protected area, shall construct any building
within the protected area or carry on any mining quarrying, excavating, blasting or any operation
of a like nature in such area, or utilize such area or any part thereof in any other manner without
the permission of the Central Government:
Provided that nothing in this sub-section shall be deemed to prohibit the use of any such area or
part thereof for purposes of cultivation if such cultivation does not involve the digging of not
more than one foot of soil from the surface.
(2) The Central Government may, by order, direct that any building constructed by any person
within a protected area in contravention of the provisions of sub-section (1) shall be removed
within a specified period and, if the person refuses or fails to comply with the order, the
1 The Constitution of India, Seventh Schedule, List II, Entry 18 and Article 246 (3)
6

Collector may cause the building to be removed and the person shall be liable to pay the cost of
such removal.

CHAPTER-III:
RESTRICTIONS BY PARTIES

3.1 THE LAWS WHICH GOVERN THE RESTRICTIONS PUT BY PARTIES ON

BENEFICIAL ENJOYMENT OF LAND:
When a person acquires or owns an immovable property, the law also gives him/her the right to
use, lease, sell, rent or transfer/gift of the land. However, there are some laws which restrict the
type of use a land can be put to. On the other hand, The Transfer of Property Act, 1882, governs
the Transfer of Property between two parties. Section 5 of the said act defines transfer of
property, but such property is transferred subject to the restrictions mentioned under Sec. 10,
Sec. 11 & Sec. 12. Sections 10, 11, and 12 of the Transfer of Property Act deal with the
imposition of restrictions or limitations in transfer of property. They contemplate situations
where limitations may be imposed on the transferee by the transferor in the instrument on the
interest so transferred2.

3.2 THE RELEVANT PROVISIONS UNDER TRANSFER OF PROPERTY ACT, 1882

ON RESTRICTIONS ON USE OF PROPERTY:

Section 10. Condition restraining alienation

Where property is transferred subject to a condition or limitation absolutely restraining the
transferee or any person claiming under him from parting with or disposing of his interest in the
property, the condition or limitation is void, except in the case of a lease where the condition is
for the benefit of the lessor or those claiming under him:
PROVIDED that property may be transferred to or for the benefit of a women (not being a
Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to
transfer or charge the same or her beneficial interest therein.
This means that condition imposing an absolute restraint on the right of disposal is a void
condition and has no effect. For example, a person makes a gift of a property to another person
(transferee) with a condition that he will not sell it. This condition imposes an absolute restraint.
If the transferee sells that property, the sale will be valid because conditions imposing absolute
2 S.M. Lahiri, The Transfer of Property Act (Act IV of 1882), 11th ed.
8

restraint are void.

Conditional Transfer:
Every owner of a property, who is competent to transfer, may transfer his property either
unconditionally or with certain conditions. Conditions are limitations or restrictions on the rights
of the transferees. Transfers which are subject to restrictions are known as conditional
transfers. These conditions may be either conditions precedent or conditions subsequent.
Conditions precedent are put prior to the transfer and the actual transfer depends upon
compliance of those conditions. Subsequent conditions are those conditions which are to be
fulfilled after the transfer3.
This provides that if a property is transferred subject to a condition or limitation restraining the
transferees right of parting with or disposing his interest in the property absolutely, then such a
condition is void. This general rule is referred to as the rule against inalienability. The rule
against inalienability gives effect to the main principle behind the Transfer of Property Act that,
generally, all property should be transferable. Therefore, any condition that restrains alienation is
considered void.
Absolute Restraint:
Absolute restraint refers to a condition that attempts to take away either totally or substantially
the power of alienation4. Section 10 says that where property is transferred subject to a condition
or limitation which absolutely restraints the transferee from parting with or disposing of his
interest in the property is a void condition. Restraint on alienation is said to be absolute when it
totally takes away the right of disposal.
Partial restraint
Section 10 has only provides for an absolute restraints. It is silent about the partial restraints.
Where the restraint does not take away the power of alienation absolutely but only restricts it to
certain extent, it is called as partial restraint. Partial restraint is valid and enforceable
Case Laws under the section:
A transfer of property for construction of a college contained a condition that if the college was
not constructed; the property would not be alienated. Rather it would be re-conveyed to the
person transferring it. The condition was held to be void and, therefore, not capable of being
3 G.P. Tripathi, The Transfer of Property Act, 1882, 15th ed.
4 Bhavani Amma Kanakadevi v CSI Dekshina Kerela Maha Idavaka, AIR 2008 Ker 38
9

enforced5.

A compromise by way of settlement of family disputes has been held to be valid in Mata
Prasad v Nageshwar Sahai6, although it involved an agreement an agreement in restraint of
alienation. In this case, dispute was as to succession between a widow and a nephew.
Compromise was done on terms that the widow was to retain possession for life while the title
of the nephew was admitted with a condition that he will not alienate the property during the
widows life time. The Privy Council held that the compromise was valid and prudent in the
circumstances of the case.
In Rosher v. Rosher7, a person A died leaving behind his wife W and a son S. He left his entire
property to S, under his Will. The will provided that S had to first offer the property for sale and
also had to sell her at L 3000 while the market price was L 15000. The court held that these
restrictions amounted to an absolute restraint on Ss and his heirs power of alienation and were
therefore void.
In Zoroastrian Co-operative Housing Society Ltd v. District Registrar Co-operative Societies 8a
society with the object of constructing houses for residential purposes had a bye law which
stated that only Parsis can be members of the society. There was also a condition that no
member could alienate the house to non-parsis. The Supreme Court held that when a person
accepts the membership of a co-operative society by submitting himself to its byelaws and
places on himself a qualified restriction on his right to transfer property by stipulating that same
would be transferred with prior consent of society to a person qualified to be a member of the
society it could not be held to be an absolute restraint on alienation offending Section 10 of the
Transfer of Property Act.
Summary of the Section:
Section 10 relieves a transferee of immovable property from an absolute restraint placed on his
right to deal with the property in his capacity as an owner thereof. As per section 10, a condition
restraining alienation would be void. For making such a condition invalid the restraint must be
5 DhavaniAmmaKankadevi v C.S.I. Dekshina Kerala MahaIdavaka, AIR 2002 Ker 38
6 (1927) 47 All 484
7 (1884) 26 Ch D 801
8 AIR 2005 SC 2306
10

an absolute restraint, and while an absolute restraint is void, a partial restraint may not be void
and will still operate.
Section 11. 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 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 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. However, the transfer itself is, however, not invalidated.
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 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.
A gift restraining enjoyment is void9. Payment of certain amount to the vendor out of the profits
of property by way of rent after sale is illegal10.
Exception:
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.
Covenants:
9 N. Manekal v BaiSavita, CA No 959 of 1963 decided on Oct 1(SC
10 State of Rajasthan v Jeo Raj, AIR 1990 Raj 90
11

The second paragraph of Section 11, relates to the rights of a transferor as against the transferee
to secure better enjoyment of his own property, these can be of two types, positive or negative
conditions, i.e. (1) to enforce the performance of a positive covenant, and (2) to restrain the
breach of a negative covenant, and this can be enforced by the transferor by reference to Section
40 of the Act.
For example, if A transfers a land to B, and puts a condition, that he would leave open a four feet
wide space adjoining As own land, and would not build upon it. On this land there is also a onefoot 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.
Difference between Section 10 and Section 11
The difference between Section 10 and Section 11 is that the former deals with a case of an
absolute prohibition against alienation of an interest created by a transfer and the latter deals
with the absolute transfer of an interest followed by a restriction on its free enjoyment.
Which means, under Section 10, whatever interest that is conveyed, limited or unlimited, cannot
be made absolutely inalienable by the transferee. whereas under Section 11, when once an
interest has been created absolutely in favour of a person, no restrictions can be imposed on its
full and free enjoyment.

Section 12. Condition making interest determinable on insolvency or attempted alienation

Where property is transferred subject to a condition or limitation making any interest therein,
reserved or given to or for the benefit of any person, to cease on his becoming insolvent or
endeavouring to transfer or dispose of the same, such condition or limitation is void.
Nothing in this section applies to a condition in a lease for the benefit of the lessor or those
claiming under him.
This section also relates to the restrictions on transfer of property.
Illustration: A transfers property to B with the condition if B becomes insolvent, then his
interest in the property would cease. B later becomes insolvent and A seeks to enforce the
12

condition. In such a case, the condition would be void and B will continue to have interest in the
property.
The exception to this rule in the case of a lease, which allows a lessor to impose such a condition
for his benefit in the lease. This means that a lessor may stipulate that if a lessee should become
insolvent, the lease may be forfeited and the lessor may re-enter the leased property. Hence, a
covenant determining a lease in the event of the insolvency of the lessee is valid11.
Hence, although there are general rules that prohibit any restrictions from being imposed on the
enjoyment of the interest in the property after a transfer is made, there are certain exceptions to
it.
3.3 THE RIGHTS PROTECTED UNDER EASEMENTS ACT, FOR USE OF THE
OWNER OF THE PROPERTY:
Easement is a right which the owner or the occupier of certain land possesses such as, for the
beneficial enjoyment of that land, to do and continue to do something, or to prevent and
continue to prevent something being done, or in respect of certain other land not his own.
Section 7 of the Indian Easements Act, 1882 contains Easements restrictive of certain rights.
Easements are restrictions of the following rights:
a) Exclusive right of enjoyment- The exclusive right of every owner of immovable property
(subject to any law for the time being in force) to enjoy and dispose of the same and all products
thereof and accessions thereto.
b) Rights to advantages arising from situation-The right of every owner of immovable property
(subject to any law for the time being in force) to enjoy without disturbance by another the
natural advantages arising from its situation.

11 Vyankatraya v Shivrambhat, (1883) ILR 7 Bom 256

13

CHAPTER-IV:
PRICIPLES GOVERNING RESTRICTIONS

4.1 THE PRINCIPLES THAT GOVERN SUCH RESTRICTIONS ON USE OF

PROPERTY:
A land owner exercises an indefinite right to use, control, and dispose of his/her property.
However, every one must use his/her property as not to injure that of his/her neighbor. This
principle of law finds expression in the maxim sic utere tuo ut alienum non laedas, means one
must so use his own rights as not to infringe upon the rights of another. When a landowner in
the use of ones own property causes injury to another by willful misconduct or negligence, sic
utere tuo ut alienum non laedas is the fundamental principle on which liability of a landowner
can be predicated. However, the maxim does not mean that one must never use his own property
in such a way as to do any injury to his neighbor. It means only that one must use his/her
property so as not to injure the lawful rights of another.
Additionally, an owner or occupant of property must use the premise in a way that will not be a
nuisance to other owners and occupants in the same community. Anything which annoys or
disturbs one in the free use, possession, or enjoyment of his/her property or which renders its
ordinary use or occupation physically uncomfortable will become a nuisance. It is the duty of
the state to restrain such acts.
Moreover, an owner or possessor of premises incurs absolute liability when:

the owners conduct was in violation of certain statutes, ordinances, or regulations;

an injury is suffered by another as a result of an occurrence on the premises of the

defendant, regardless of the possessors fault; or

the owner keeps in his/her property certain substances which would cause injury to
others when it is allowed to escape.

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CHAPTER-V:
CONCLUSION
CONCLUSION AND SUGGESTIONS:
When a property is transferred absolutely, it must be transferred with all its legal incidents. The
vendor is not competent to severe from the right of property the incidents which the law
inseparably annexes to it. Under certain circumstances, transfer of property may be restricted.
There are certain restrictions on the alienation of property.
These are statutorily provided by law under Sections 10, 11 and 12 of The Transfer of Property
Act, 1882. The right of transfer is incidental to and inseparable from the beneficial ownership of
property. There shouldn't be an absolute restraint to alienation of property. In case property is
transferred subject to a condition, which absolutely restrains the transferee or any person
claiming under him from parting or disposing off his interest in the property, such a condition is
void.
The principle underlying the sections is that a right of transfer is incidental to, and inseparable
from, the ownership of the property. The rule that a condition of absolute restraint is void, is
founded also on the principle of public policy allowing free circulation and disposition of
property. It is only a condition which absolutely restrains the transferee from disposing of the
interest that is rendered void. A condition imposing partial restraint may be valid. The test is
whether the condition takes away the whole power of alienation substantially; it is a question of
substance and not of form.
Also, every citizen has a right, under Article 300A of the Constitution of India, to property and
such a right is not to be deprived except in accordance with law. Even under Article 19 of the
Constitution of India the citizen has a fundamental right to reside and settle down in any part of
the Indian Territory. If there is a law made by the appropriate legislature, the same should be
examined from the stand point of whether it is reasonable restriction or otherwise.
Thus, when a person acquires ownership upon a property, he acquires, at the same time, the right
to transfer that as the right to transfer is incidental to and inseparable from the beneficial
ownership and use of the property. Hence, any contract or agreement restrainig such a right must
be void.
We see that save with the help of law, no other person can interfere with the power or right of the
owner or dictate to him, what should be the manner of alienation, should he alienate or not, or
15

even what kind of use it should be put to. In short, this right of enjoyment of the property, is one
of the basic rights of the owner, cannot be unreasonably encroached upon by anyone through a
private agreement.

REFERENCES

BOOKS REFERRED:

Dr. N.V. Paranjape, Jurisprudence and Legal Theory: Seventh Edition, 2013
Vepa P. Sarathi, Law of Transfer of Property: Fifth Edition 2005, Reprinted 2013
Dr. Avtar Singh, The Transfer of Property Act: Fourth Edition, 2014
The Transfer of Property Act, (4 of 1882): Bare Act

WEBSITES:

http://www.lawctopus.com/academike/restraints-on-transfer/
http://shodhganga.inflibnet.ac.in/bitstream/10603/31643/13/13_chapter%205.pdf
http://www.legalanswers.sl.nsw.gov.au/guides/neighbours/property_rights.html
http://www.legalservicesindia.com/article/article/easement-restrictive-of-certain-rights-

481-1.html
https://www.academia.edu/14343318/Sec_10_and_11_of_TP_Act_1882
http://articles.economictimes.indiatimes.com/2007-10-28/news/27673266_1_transfer-

property-act-condition
https://indiankanoon.org/doc/392816/
http://www.lawstudentshelpline.com/index.php/transfer-of-property-act/2uncategorised/159-q-restriction-repugnant-to-the-interest-created-by-transfer-is-voiddiscuss

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