1. This is an appeal against the judgment of the Subordinate Judge of Benares. The plaintiffs were the zamindars of a plot of land. The predecessor-in-title of the appellants executed a kabuliyat by which he agreed to pay to the plaintiffs annual parjot, and he also agreed to pay zarichaharam, that is one-fourth of the sale price received by him whenever he sold his interest in the plot. Doman the defendant's predecessor-in-title defendant 1 in the suit, sold the plot to defendant 2, and the plaintiff zamindars sued both the defendants for the zarichaharam. Defendant 1 did not defend the suit. The trial Court held that defendant 2 was not liable but the lower appellate Court held on the authority of Prabhu Narain Singh v. Ramzan  41 All. 417 that both the defendants were jointly and severally liable for the amount of the zarichaharam, and gave a decree in favour of the plaintiffs against defendant 2. Defendant 2 appeals.
2. The sole question before us is whether, under the circumstances given above, the assignee of defendant 1 is liable to pay to the zamindars the zarichaharam. We agree with the lower appellate Court that defendant 2 must be held to have notice of the haq chaharam payable by defendant 1. We have carefully considered the case of Prabhu Narain Singh v. Ramzan  41 All. 417. We notice that Piggott, J., decided that case on the nature of the plea set up by the defendant Ramzan in the trial Court. Walsh, J., alone decided the actual point before us in favour of the zamindars. With great respect to the learned Judge, we are of opinion that that case was wrongly decided. The learned Judge appears to have based his judgment upon the view that haq chaha-ram was a restrictive covenant of the kind dealt with in the English authority of Tulk v. Moxhay  2 Phil. 774. We are of opinion that haq chaharam cannot be considered to be such a restrictive covenant. Restrictive covenants are covenants restraining the use to be made of the land. A contract to pay a certain sum of money on the happening of a certain event cannot possibly, in our opinion, be held to be a restrictive covenant. It appears to us that the whole of the judgment of the learned Judge is based upon this misapprehension. In any event, it was held in Haywood v. Brunswick Building Society  8 Q.B.D. 403 that the rule in Tulk v. Moxhay that
anyone coming into possession of land with notice, actual or constructive, of a covenant entered into by some one through or under whom ho claims, restricting the use of that land, will be prohibited from doing anything in breach of the covenant,
applies only to a negative and not an affirmative covenant. Equity would not allow the assignee to use the land in contravention of the restriction. Tulk v. Moxhay cannot be used to place the pecuniary liability of an assignor upon his assignee. In any event, it has long been held in English law that no action of covenant will lie against the assignee of the lessee, except for breaches of covenant happening while he is assignee. In our opinion it is clear that the whole of the argument of the learned Judge based upon restrictive covenants and Tulk v. Moxhay is misconceived. Further, the learned Judge appears to be impressed with a paragraph taken from Gour's Transfer of Property Act, in which the learned author of that work quotes Dat's Vendors and Purchasers Edn. 6, 927, as to the knowledge of a purchaser of land of an encumbrance on the property either before or after the execution of the conveyance and the learned Judge proceeds to state that that substantially was the position in the case he was then deciding. An encumbrance is a mortgage or charge upon the property purchased, and cannot be held to mean a liability such as that of paying the zarichaharam. He further relies upon the general principles of equity. We fail to conceive how the transferee in this case can be held to be found in any way in equity to pay the personal obligation of his predecessor-in-title, especially when the transferee had paid the full purchase price to his predecessor, and when, we must conclude, the vendor, having to pay the zarichaharam to the zamindar, must have taken that into consideration in fixing the price which he demanded for his interests in the 'land.
3. Reliance is placed by the respondents however on Section 40, T. P. Act. The first part of that section merely adapts to the law of India the English doctrine of restrictive covenants illustrated in Tulk v. Moxhay and Haywood v. Brunswick Building Society. Para. 2 is more difficult to construe. But we are of opinion that it cannot possibly apply to an obligation arising out of a contract, such as an obligation to pay zarichaharam. The illustration given to the section confirms us in this view. That illustration is concerned solely with an equitable right to enforce the specific performance of a contract entered into by B with A against C to whom subsequently the land was sold with notice of the previous contract. It would be, we think, a strained construction, of the section to apply it to a personal obligation, such as the payment of zarichaharam arising out of a contract of lease. We think that the legislature by this part of the section merely meant to adapt to the law of India the English rule of conferring an equitable title in land on the holder of a contract relating to the transfers of land. Such a contract does not amount to an 'interest in land or an easement thereon '' within the meaning of this part of the section. It confers merely an equitable title. We see no reason to apply this part of the section to a merely personal obligation to pay a sum of money to a third party arising out of a contract, and further we do not think an obligation to pay zarichaharam could be said to be ' annexed to the ownership of immovable property' within the meaning of this part of the section. A contract giving rise to a right of pre-emption or a contract of sale both would create an obligation annexed to the ownership of property and it is to such obligations that this part of the section is meant to apply. We allow the appeal, set aside the decision of the lower appellate Court and restore that of the trial Court, with costs.