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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANUJA PRABHUDESSAI, J.
The Pashmina Co-Operative Housing Society Ltd. – Appellant
Versus
Latif Mohamed Hassambhoy of Bombay Indian Inhabitant – Respondent
First Appeal No. 1128 of 1995, Interim Application No. 18684 of 2022
Decided On : 09-01-2024
RESTRICTIVE COVENANT - PROPERTY DISPUTE - Transfer of Property Act, 1882, Section 11, Section 40 - The judgment discusses the enforcement of a restrictive covenant on the construction of a property and its impact on the beneficial enjoyment of adjoining properties. The court analyzes the legal provisions of Section 11 and Section 40 of the Transfer of Property Act, 1882 and their application in the case. The judgment highlights the principle that a restriction on the enjoyment of property transferred absolutely can only be imposed for the beneficial enjoyment of another piece of such property. It also emphasizes that the restriction or obligation must result in an impediment to the beneficial use or enjoyment of the land.
Fact of the Case:
The case involves a property dispute where the Plaintiff sought demolition of construction exceeding the height of 7 feet and a restraint on further construction by the Defendant. The Defendant claimed that the restrictive covenant was for the benefit of the purchasers of the Altamount and not for the subdivided plots. The court analyzed the evidence and submissions of both parties to determine the enforceability of the restrictive covenant and its impact on the beneficial use of the properties.
Finding of the Court:
The court found that the Plaintiff failed to prove that the construction on the Defendant's plot would affect the beneficial use of the Plaintiff's property. It also noted that the Plaintiff had approached the court after considerable delay and had failed to comply with a positive covenant under the Indenture dated 02/04/1957. The court concluded that the impugned judgment and decree were set aside, and the suit was dismissed with no order as to costs.
Issues: The main issues considered by the court were the entitlement of the Plaintiff to enforce the negative covenant, the proof of the alleged restrictive covenant running with the land, and the impact of the proposed construction on the Defendant's plot on the beneficial enjoyment of the Plaintiff's property.
Ratio Decidendi: The court's decision was based on the analysis of the legal provisions of the Transfer of Property Act, 1882, particularly Section 11 and Section 40, and the application of these provisions to the facts of the case. The court emphasized the need for the restriction or obligation to result in an impediment to the beneficial use or enjoyment of the land in order to enforce a restrictive covenant.
Final Decision: The appeal was allowed, and the impugned judgment and decree were set aside. Consequently, the suit was dismissed with no order as to costs. The relief of perpetual injunction in favor of the Plaintiffs was extended for a period of four weeks to enable them to challenge the judgment before the Hon’ble Supreme Court.
JUDGMENT :
ANUJA PRABHUDESSAI, J.
1. This is an Appeal under Section 96 of the Civil Procedure Code filed by the Appellant/Defendant challenging the judgment and decree dated 14/09/1995 in S.C. Suit No. 3252 of 1981. By the impugned judgment the learned Judge, City Civil Court, Bombay, partly decreed the suit in terms of prayer clauses (b) and (c) and thereby directed the Appellant-Society to demolish RCC columns and structures and construction on plot No. 3 bearing Cadastral Survey No. 6/669 of Malabar and Kumbala Hill Division, exceeding height of 7 feet from the Altamount road level. The Appellant-Society is also restrained from constructing or attempting to construct any structure exceeding height of 7 feet above the said road level.
2. Habib Mohammad Hoshambhoy was the Plaintiff No. 1 and the Appellant was the Defendant No. 1 in the suit and shall be hereinafter referred to as the Plaintiff No. 1 and the Defendant, respectively. The other Plaintiffs and Defendants were the Trustees of Currimbhoy Ebrahim Khoja Orphanage.
3. The brief facts necessary to decide this appeal are as under:
4. By successive Indentures dated 21/04/1909, 08/03/1937 and 24/12/1948 the said plot ‘New Bunce’ was sold to Jehangir Bomanji Petit, Provident Investment Company Ltd. and to Sir Jivajirao Scindia, Maharaja of Gwalior. On or about 02/04/1957 the said land under C.S. No. 669 was subdivided into several plots. The Maharaja of Gwalior conveyed Plot No. 6 to Currimbhoy Ebrahim Khoja Orphanage Trust and vide Indenture dated 02/04/1957 Plot Nos. 1A, 2, 3, 4, 6A and 7 were conveyed in favour of Habib Mohamed Hashambhoy, the deceased Plaintiff No. 1. Plot No. 6A was reserved for a road and the other plots were conveyed to different persons. The purchasers of various plots entered into a deed of mutual covenant dated 02/04/1957, which also contained a covenant restricting construction exceeding the height of 7 feet from the road level.
5. The Defendant is the owner of Plot No. 3, acquired under Indenture dated 18/02/1968 from M/s. L.K. Marke and Investment Co. Pvt. Ltd. The Plaintiffs claim that Plot No. 3 has a structure of basement with three upper floors having height upto 7 feet from the road level. It is the case of the Plaintiffs that the restrictive covenant in Indenture dated 22/05/1890 as well as 02/04/1957 is for the mutual benefit of all the other plots. It is contended that in view of the said restrictive covenant there can be no construction on plot No. 3 or any part thereof of a height exceeding 7 feet from the level of Altamount road. The grievance of the Plaintiff was that the Defendant had constructed RCC columns above the existing structure in plot No. 3 with an intention of constructing additional floors exceeding height of 7 feet from the road level. It is the case of the Plaintiffs that the said construction, which is in breach of the covenant is likely to cause damage and invade their proprietary rights. The Plaintiffs therefore filed the suit for a declaration that there was restrictive negative covenant on plot No. 3. The Plaintiffs also sought demolition of RCC columns and the structure exceeding the height of 7 feet and further to restrain the Defendant from carrying out any construction exceeding height of 7 feet from the level of Altamount road.
6. The Defendant claimed that the covenant in the original Indenture dated 23/05/1890 was for the benefit of the p
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