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Report No. 70

36.11. Other provisions.-

It should, however, be noted that section 40 does not deal with obligations which may be enforceable under some other provisions. There may, for example, be a charge created on the property, enforceability of which can be supported by reason of the specific provisions of section 100, even where section 40 does not apply.

36.12. Case of attachment.-

As regards the second paragraph of section 40, it was held in a Madras case1 that the private sale of property pending attachment under a contract entered into prior to attachment confers good title even though the sale actually takes place after the attachment. This was on a construction of the term "transferee" in section 40 as including an execution purchaser. The matter, however, really pertains to the realm of procedure,2 and need not be discussed in the present context.

1. AIR 1917 Mad 4.

2. See section 64 of the Code of Civil Procedure, 1908.

36.13. Multi-storeyed buildings.-

We have dealt with the implications and limitation of section 40, as it now stands. At this stage, it should be mentioned that need for legislation has often been felt in regard to multi-storeyed residential or office accommodation which is now coming up in urban areas on an increasing scale. As was noted in the introductory discussion, many countries have enacted elaborate laws for regulating property rights in such cases. A fairly well-known example is the Conveyancing Strata Titles Act, 1961, New South Wales. Legislation similar to it is in force in some other States of Australia and in Canada, Ceylon, Jamaica, Singapore and the U.S.A.

To mention a few of the important provisions normally to be found in such legislation, a developer may adopt the device of registering a plan with the approval of the local' authority-thereupon, the proprietors collectively become a corporate body which can sue and be sued, employ servant etc. and has powers for the management of the whole unit. Common property, such as, stair-cases, car-drivers and gardens, is held by the proprietors as tenants in common and they have easements of shelter, water supply and other services with rights of entry to do repairs in case of need.

Such a scheme provides a more convenient range of proprietary rights and duties than the ordinary law of property. Where such a scheme recognised or regulated by statute is in operation the need for express comments practically disappears, and such limitations of the common law as are concerned with the enforceability of the burden of a covenant against assignees of the land are also modified to that extent.1

1. D.J. Hayton Restrictive Covenants as Property Interest, (1971) 87 LQR 539.

36.14. However, for obvious reasons, it is impracticable to introduce such detailed provisions in the general law of property which is codified in the Act. Legal difficulties in imposing obligations on future owners to keep a proper standards of repair, or to contribute to the cost of common services and amenities and so forth will, in the nature of things, have to be dealt with by special legislation.

Benefit and burden-We may also point out that apart from statutory developments, it is recognised even at common law that the person who takes a benefit under a deed must also accept its obligations. Upjohn J. in the case of Halsall,1 in substance, hold that a long-standing obligation to contribute to the cost of maintaining roadways and other common amenities on a developed estate could be enforced against future purchasers.

This decision was followed in a later case2, and is based on the maxim that a person who wishes to take advantage of a service or facility must comply with any corresponding obligation to contribute to the cost of providing or maintaining it. In Latin, the maxim is quisentil commodum sentire debet et onus.

1. For comment see Megarry, (1957) 73 LQR 154.

2. E.R. Iyer Investment Ltd. v. High, (1967) 1 All ER 504.

36.15A. Perpetuities.-

Finally, we may state here that covenants, at least in Indian law, are not subject to the rule against perpetuities and they do not amount to an interest in land.1

36.16. No change.- In the result, no change is needed in section 40.

1. R. Kempraj v. Burton Son & Co., AIR 1970 SC 1872 (1875), para. 8.

The Transfer of Property Act, 1882 Back

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