Explain the concept of Restriction Repugnant to interest created and it’s consequences as laid down under Sec. 11 TPA.
Sec. 11 of the Transfer of Property Act, lays down that any condition restraining the enjoyment of enjoyment of property which is transferred absolutely is void. The principle is that a condition will be void if it detracts from the very completeness of the interest created. One of the essential legal incident of the ownership of property is the right of free enjoyment of the thing owned. A full ownership confers upon its owner complete liberty of action with regard to its enjoyment, disposition and management so that if a transfer of such interest were accompanied by a condition, the condition would be void.
In the case of Manjusha Devi v. Sunil Chandra AIR 1972 Cal 310, the parties entered into a sale for a piece of land and it was mentioned that the buyer could only use the land for setting up a factory for jute textile manufacturing. It was held that this condition was invalid as the property is transferred absolutely and such condition restraining the enjoyment, disposition and management of the property.
Exception to section 11
As per section 11 Para 2 , the transferor of property may impose conditions restraining the enjoyment, disposition, management of property if such condition are for the benefit of his adjoining property. The transferor is competent to issue such condition if the transferor has another piece of immovable property. He may, for the benefit of that property, impose conditions of restrictions on the transferee’s right of enjoyment.
In the case of Umashankar Agarwal v Daulatram Sahu, AIR 201 CHH 73, a shop was sold subject to a condition that purchaser shall not be entitled to construct any basement or any pakka construction but it was not mentioned that this direction was made for the purpose of securing the beneficial enjoyment of vendor’s another property. His only plea was that subject construction is adversely affecting him. The condition stipulated was held contrary to the mandate of section 11 and hence void