Private Law Theory

ABSTRACT
The case of Tulk v Moxhay established the principle that restrictive covenants can bind subsequent owners of the land, but it has been criticized for being rigid and unyielding. While the ruling was significant for developing contemporary property law, its limitations highlight the need for a more nuanced approach to balance the interests of all parties involved. In India, the doctrine of restrictive covenants has been recognized and enforced in various cases, following the principles established in Tulk v Moxhay. This paper aims to explore the case’s application of the doctrine of equity, notable for enabling the court to grant an injunction to safeguard the original covenantor’s interests. It further delves into the judgment’s inflexible restriction of land use and development, potentially creating an unfair imbalance of rights in certain circumstances. The judgment’s application of the covenant’s enforceability regardless of the damage suffered by the complaining party has also been criticized for favouring the original covenantor’s rights over subsequent owners’ rights.

Bhutoria, Tanya and Palep, Niharika, Clash of Principles: Unraveling the Tulk v Moxhay Conundrum (February 19, 2024).