EXPRESSIONS OR THE LANGUAGE EMPLOYED IN THE DEED

Section 40 of the Transfer of Property Act embodies certain of the principles of the English law of equity 
relating to restrictive covenants to ownership of immoveable property. The right mentioned in the first para 
of that section is not conferred by the section itself. The section merely regulates or governs the exercise of 
such a right if it exists otherwise. As the right relates to two immoveable properties, the enjoyment of the one 
which is restrained for the more beneficial enjoyment of the other, the natural inference is that the source of 
the right must be an agreement or covenant between the owners of these two properties. The result of the 
amendment of the section in 1929 is that whereas as between the immediate parties to a transfer, covenants 

both affirmative as well as restrictive may be enforced/ the only covenants which can be enforced against 
transferees from the original transferor-covenantor are negative or restrictive covenants and not positive of 
affirmative covenants. Though the right mentioned in the first paragraph of Section 40 has a direct relation 
with the right of ownership of immoveable property, it is not either a right comprised within the larger right 
of ownership or a legal incident thereof. It is an additional benefit acquired by him by virtue of a covenant 
between himself and the owner of the other property whose enjoyment he seeks to restrain. Hence, it is not 
capable of being transferred independently of the ownership of the property. It can be exercised only by a 
person who is for the time being the owner of the property or has by virtue of a transfer or otherwise either 
the entire right of ownership or a right comprised in it of such character that one could say that the right 
under the covenant is directly or appropriately related to it. Before a person other than a covenantor can 
enforce the covenant, the covenantee must have transferred to him both the property as well as the covenant. 
The English law ideas of equitable assignment or reciprocal obligations arising in equity have no application 
in Indian Law under Section 40.The transferor must expressly transfer the covenant along with the property 
or the circumstances of the transaction of sale and the expressions or the language employed in the deed of 
sale must be such as to enable the Court to read not a more intention on the part of the seller to transfer the 
covenant but the actual effectuation of that intention. — Motilal Bool v Corporation of City of Bangalore, 
1962 Mys. L.J. Supp. 148 : ILR 1961 Mys. 675.

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