Can Easement of Necessity and of Implied Grant be Claimed in a Suit (Alternatively)?

Taken from: Is the Basis of Every Easement, Theoretically, a Grant

Saji Koduvath, Advocate, Kottayam

Can Easement of Necessity and of Implied Grant be Claimed in a Suit (Alternatively)?

  • Answer – Yes.

“Implied Grant” – Two Different Legal Attributions in Law of Easements

  • First,  Theoretical basis of easement of necessity (and quasi easement). Both easement of necessity and quasi easement are dealt with in Sec. 13 Easements Act. Theoretically both these rights arise from implied approval of the servient owner; and therefore it is said to be “implied grant”. Though both easement of necessity and quasi easement have some common features, both are distinguishable and cannot go together.
  • Second, ‘Easement by grant’ that arises by implication. Grant of easement may be express or implied (that is arisen by necessary implication). An ‘implied grant’ is also governed under Sec. 8 of the Easement Act which deals with express grant. Easement by implied grant is not a right akin to ‘quasi easement’ (in Sec. 13 of the Easement Act). Implied grant is controlled by the (implied) terms and conditions of the grant; and an implied grant of way also will not be defeated by the emergence of an alternative way.

“Implied Grant” has as much efficacy as an express grant

  • In Hero Vinoth v.  Seshammal, 2006-5 SCC 545, it is laid down that the grant may be express or implied.
  • In Kuppakkal v. Mathan Chettiar, AIR 1924 Mad 834, Annapurna  v. Santosh Kumar, AIR 1937 Cal 661; Ratanchand Chordia v. Kasim Khaleeli, AIR 1964 Mad 209 and  L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR  1972 Mad 307, it was held that the grant of a right of way which had necessarily to be implied on a true construction of the deed, had as much efficacy as an express grant.
  • It was held in R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, that the implied grant could be raised even if there was no express grant; and that the argument that the absence of an express grant would negative an implied grant was quite untenable.
  • Easement right by way of implied grant stated in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, is this ‘Easement by grant’ that arise by implication.

Easement of Necessity and Implied Grant

  • Both Easement of Necessity and of Implied Grant (i.e. ‘Easement by grant’ on implication) are sprouted on Analogous principles; for the reason that, both are based on some sort of ‘consent or permission’.

Implied Grant and Easement by Prescription

  • Implied Grants [both as (i) theoretical basis of Easement of Necessity and (ii) ‘Easement by grant’ on implication] are Antithetical to Easement by Prescription, because implied Grants are based on some sort of ‘consent, approval or permission’ and Easement by Prescription is arisen from prescriptive or hostile acts and it is to be ‘acquired’.

Quasi Easement and Implied Grant

  • Quasi Easements arise usually on partition or bequeath (under a Will). It pertains to Apparent and Continuous rights. Sec. 5 of the Easements Act defines apparent and continuous easements. An apparent easement is defined as one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him; and a continuous easement is one whose enjoyment is, or may be, continual without the act of man.
  • Quasi Easement (apparent and continuous easement) permits enjoyment of an easement as it was enjoyed when the transfer or bequest took effect.
  • But in case of Easement of Necessity the extent of easement will be restricted to absolute necessity, or that is ‘essentially necessary’ for the effective user of a property, in the ordinary course for its designed purpose.

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, is the well accepted authority, as regards ‘easement of necessity’, for the following –

  • An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement.
  • The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land.
  • It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Sec. 41.
  • Such an easement will last only as long as the absolute necessity exists.

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, is the well accepted authority, as regards ‘easement by grant’, for the following –

  • The grant may be express or even by necessary implication.
  • In either case it will not amount to an easement of necessity under Sec. 13 of the Act eventhough it may also be an absolute necessity for the person in whose favour the grant is made.
  • Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone.
  • If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability.
  • Such a right does not arise under the legal implication of Sec. 13.
  •  An easement by grant does not get extinguished under Sec. 41 of the Act which relates to an easement of necessity.
  • Where the parties clearly provided for a right of access to the backyard of the defendant’s house when the Partition deed was executed and shares were allotted to various sharers taking into account various factors, it is a matter of contractual arrangement between them.
  • In such a contract if a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way.

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, is the well accepted authority, to differentiate ‘easement of necessity and grant’. It is laid down–

  • Easement of necessity is depended upon absolute necessity.  Easement by grant does not depend upon absolute necessity of it. (It is the nature of the acquisition that is relevant.)
  • Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. Still, easement of grant is a matter of contract between the parties, and the parties are governed by the terms of the grant and not anything else; whereas easement of necessity is controlled under the legal implications of Sec. 13 and it is extinguished by the statutory provision under Sec. 41 (which is not applicable to easement by grant). The grant may be express or that arisen by necessary implication (therefore controlled by Sec. 8).
  • In either case (express grant or grant arisen by implication) it will not amount to an easement of necessity under Sec. 13 even when grant is an absolute necessity for the person in whose favour it is made.

Read Blog: Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant

Pleaded ‘Grant’; Not, Implied Grant – Apex Court, allowed Implied Grant

Though the plaintiff pleaded only ‘Grant’; and not, Implied Grant, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622,  our Apex Court, allowed Implied Grant observing as under:

  • “It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned senior counsel for the appellants.”

Facts of the case (Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622), in a nutshell, are the following –

  • Plaintiff, owner of A-schedule property (dominant tenement), claimed “easement of necessity or of grant” in B-schedule property (servient tenement).
  • “Implied grant” was not specifically pleaded (only ‘grant’ was pleaded).
  • Dominant tenement had been separated from the servient tenement.
  • Plaintiff has been using the way in B-schedule property for a long period (about 50 years).
  • The trial court observed that the plaintiff claiming easement by grant or easement of necessity has only a primary burden to prove the absence of any alternate pathway (these findings were accepted by the Apex Court).
  • Defendant alleged that two alternate pathways existed. But, (in evidence) No other way to A-schedule property (dominant tenement).
  • The High Court found that there was implied grant of ‘B’ schedule property as pathway.
  • The Supreme Court upheld the view of the High Court and the Trial Court and held as under:
    • “… the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that
      • (i) no other pathway was provided for access to ‘A’ schedule property of the plaint and
      • (ii) there was no objection also to the use of ‘B’ schedule property …”

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

  • “17. The High Court limited itself to the issue whether the decree of the first appellate court granting the original plaintiff (since deceased) right of easement over ‘B’ schedule property by way of grant concurring with the findings of the trial court was sustainable.
  • 18. Before the High Court, the defendants pleaded that there had been no appeal or cross objection filed by the original plaintiff (since deceased) against the order of the Appellate Court which disallowed the claim of easement of necessity and, therefore, the finding that there existed no easement of necessity in favour of the original plaintiff (since deceased) over the ‘B’ schedule property stood confirmed. Further they contended that the alternative pathway on the western side of the ‘A’ schedule property was rendered inconvenient by the very act of the original plaintiff (since deceased) who sold that portion of the property to a third party who began digging that pathway resulting in the difference in level. The High Court, on consideration of these contentions, held that though the claim of right of easement by way of necessity over ‘B’ Schedule property may be affected by the subsequent sale of the said plot by the plaintiff in 1983, the claim of right of easement by way of grant over ‘B’ schedule property stood unaffected by the said conduct.
  • 21. The High Court relied on a number of observations in Katiyar’s Law of Easement and Licences (12th Edition) on law with respect to “implication of grant of an easement.” It may arise upon severance of a tenement by its owner into parts. The acquisition of easement by prescription may be classified under the head of implied grant for all prescription presupposes a grant. All that is necessary to create the easement is a manifestation or an unequivocal intention on the part of the servient owner to that effect.
  • 23. Applying these observations to the facts of the case, the High Court held that though the original grant was by Yogini Amma that grant could not perfect as an easement for the reason that Yogini Amma herself was the owner of both ‘A’ schedule and ‘B’ schedule properties and consequently there was no question of ‘B’ schedule property becoming the servient tenement and ‘A’ schedule property becoming the dominant tenement. However, it was the desire of Yogini Amma that was implemented by her disciples by virtue of the settlement deed. Therefore, the right of the plaintiff to have ‘B’ schedule property as a pathway could not have been taken away by the very same deed. In fact, there was implied grant of ‘B’ schedule property as pathway as can be inferred from the circumstances, namely,
    • i) no other pathway was provided for access to ‘A’ schedule property in the settlement deed and
    • ii) there was no objection to the use of ‘B’ schedule as pathway.
  • 25. We have heard Mr. T.L. Viswanatha Iyer, learned senior counsel for the appellants and Mr. Subramanium Prasad, learned senior counsel for the respondents. We have carefully examined the impugned judgment of the courts below and also the pleadings, evidence and the materials already on record. It is not in dispute that the trial court as well as the First Appellate Court concurrently found on a proper appreciation of the evidence adduced in the case that the ‘B’ Schedule Property of the plaint was being used by the original plaintiff (since deceased) and thereafter, by the respondents even after construction of the building in 1940 in ‘A’ Schedule property of the plaint. The appellants also did not dispute the case of the original plaintiff (since deceased) that he was in continuous occupation of the building even after its construction in the year 1940. It is also not in dispute that the appellants were not able to establish that the original plaintiff (since deceased) was using any other pathway for access to ‘A’ Schedule Property of the plaint and the building therein, which was in the occupation of the original plaintiff (since deceased). The case of the appellants that since there was no mention in the deed of settlement enabling the use of ‘B’ schedule pathway for access to ‘A’ schedule property and the building therein, cannot be the reason to hold that there was no grant as the grant could be by implication as well. It is not in dispute that the fact of the use of the ‘B’ schedule property as pathway even after execution of Exhibit A1, the settlement deed in the year 1982 by the original plaintiff (since deceased) would amply show that there was an implied grant in favour of the original plaintiff (since deceased) relating to ‘B’ schedule property of the plaint for its use as pathway to ‘A’ schedule property of the plaint in residential occupation of the original plaintiff (since deceased). In the absence of any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had an alternative pathway for access to the ‘A’ schedule property, it is difficult to negative the contention of the respondent that since the original plaintiff (since deceased) has been continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had acquired an easement right by way of an implied grant in respect of the ‘B’ Schedule property of the plaint. It is an admitted position that both ‘A’ schedule and ‘B’ schedule properties of the plaint belonged to Yogini Amma and her disciples and it was the desire of Yogini Amma that was really implemented by the disciples under the settlement deed executed in favour of the original plaintiff (since deceased). Therefore, the High Court was perfectly justified in holding that when it was the desire of Yogini Amma to Sree Swayam Prakash Ashramam & Anr vs G.Anandavally Amma & Ors grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original plaintiff (since deceased) to have ‘B’ schedule property of the plaint as a pathway could not have been taken away.
  • In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K. Mukherjee, as His Lordship then was observed:
    • “There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.”
  • 26. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

Implied Grant and Quasi Easement in a ‘Formed’ Way

There could be no implied grant where the easements are not continuous and non-apparent. But, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, our Apex Court found quasi easement under Section 13(b) of the Indian Easements Act over a way in the following circumstances –

  • Though there could be no implied grant where the easements are not continuous and non-apparent, if there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, an exception can be inferred (Annapurna Dutta vs. Santosh Kumar Sett, AIR 1937 Cal.661, B.K. Mukherjee, referred to).
  • There was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to dominant property and there was no objection also to the use of disputed way by the plaintiff.
  • An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances.
  • A trace of the pathway could be presumed to be in existence from the time when the plaintiff acquired the properties by separation of tenements.
  • Only access to the property was through disputed pathway.
  • It was required for the reasonable and convenient use of the plaintiff’s property and that on severance of the tenements, plaintiff can be presumed to have got a right over disputed pathway by an implied grant and also an easement of necessity.
  • The user was not obstructed for very long time.
  • There was no reason to disbelieve the plaintiff’s version that disputed way was given as grant for his use as he was a close relative of the former.
  • There was an apparent and continuous use which was necessary for the enjoyment of the `A’ schedule property within the meaning of Section 13(b) of the Indian Easements Act.
  • The defendants have not entered the witness box to disprove the evidence led by the plaintiff.
  • Therefore, the plaintiff was entitled to easement right in respect of the pathway.

Easement is Acquired; not arise out of ‘Express Permission’ (akin to Licence)

Sec. 12, Easements Act states that an easement is acquired by the owner of an immovable property. It is observed by the Apex Court in Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103, that the claimant of easement (prescription) should plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. 

Easement-by-Prescription – “Grant” or Acquisition by “Hostile or Notorious Act”? Is there Incongruity?

The basis of every right of easement is theoretically a grant from the servient-owner. Grant is presumed in easement by prescription, for long and continued user. Is there incongruity (in case of easement by prescription) in saying that it is ‘grant’ (on one part) and ‘acquisition by prescription’ which suggests ‘adverse’ and ‘hostile or notorious’ user (on the other part)?

  • The answer is that the ‘grant’ herein is only a “presumption in law”; and virtually, easement by prescription has to be acquired by hostile and/or notorious acts.
  • It is clear from Sec. 12 and 15 of the Easement Act.

Tanba Nusaji Mahajan v. Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109 lays down the legal position accepted by Indian law, clearly, as under:

  • “The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

Chapsibhai Dhanjibhai Danad vs Purushotram, 1971 AIR 1878, it was pointed out as under:

  • “In Ravachand v. Maniklal (ILR 1946 Bom. 184), it was held that an easement by prescription under ss. 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man’s property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the fight.”

In Raychand Vanmalidas v. Maneklal Mansukhbhai, (1946) 48 BomLR 25, it was held as under:

  • “In any case it must be shown that the right was enjoyed as an easement, that is, as an assertion of a hostile claim of certain limited rights over somebody else’s property. Such an assertion cannot be held proved without satisfactory proof of the requisite consciousness. Prescriptive easement, as opposed to easement by grant, is always hostile. It is in fact an assertion of a hostile claim of certain rights over another man’s property and as such it resembles in some respects the claim to ownership by adverse possession of property; both are of hostile origin and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possession the possessor must assert his own ownership, in the case of easement he must assert limited rights of user on a property and acknowledge its ownership in some one else. It must, therefore, follow, in my opinion, that a person who asserts such a hostile claim must prove that he had the consciousness of exercising that hostile claim on a property which is not his own, and where no such consciousness is proved, he cannot prove the prescriptive acquisition of the right”.

Easement by prescription is ‘acquired’ by ‘prescriptive’ user. It should not have been by permission or agreement. In case of easement, law requires pleading and proof – that the right claimed was enjoyed independent of any express permission (Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103).

It is held in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 62 that the acquisition of easement by prescription may be classified under the head of implied grant; for, all prescription presupposes a grant.

Alternative Way Will Not Defeat Claim of Implied Grant (Grant that arise by Implication)

The existence of alternative way will defeat easement of necessity and quasi easement. But, it will not defeat the claim of implied grant. (See: John, S/o. Ulahannan v. P. Janaki, D/o. Late Vava, 2012, Kerala High Court.)

Easement by (implied) grant and quasi easement can be pleaded alternatively Easement by (implied) grant and quasi easement can be pleaded alternatively for, it is not mutually destructive, and it is permissible to raise inconsistent pleas (but  to confine either of the two at the time of evidence).

Easement of Necessity and Easement by Prescription are Antithetical (Easement of Necessity and of Implied-Grant (Grant that arise by Implication) are Analogous)

Easement by prescription is acquired by hostile and notorious acts; but user of it should be peaceable and open enjoyment, without interruption for twenty years. Therefore ‘grant’ is “presumed” in easement by prescription.

Origin of Easements of necessity and Easement by prescription are different (Easements of necessity is based on implied grants. It is based on some sort of ‘consent, approval or permission’; but, Easement by Prescription is arisen from prescriptive or hostile acts). Hence, both these rights are antithetical to each other. In Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649, it is observed as under:

  • “Implied grant and the concept easement by prescription are quite antithetical to each other. If a person is having an implied grant in his favour, then the question of prescription would not arise.” (Quoted in: Kalyan Spinning Mills v. M.  Chellappan, AIR  2023 Mad 8, P.  Sadayan v. Arumugam, 2020-1 Mad LW 535).
  • See also: Joy Joseph v. Jose Jacob, 2010 (4) KHC 167; Kochu Nadar v. Kunjan Nadar Gabriel,2011 SCC OnLine Ker 2674;  Kallen Devi v. Kizhakkekoroth Raghavan, 2012 (3) KLT 142; Kamala Devi Amma v. Rajan, 2017 (4) KLJ 700;  Lilly v. Wilson, 2018 (1) KLT 772.

Will Easement of Necessity Ripen into a Prescriptive Easement?

In other words-

  • Can one claim ‘easement of necessity’ and ‘easement by prescription’ with respect to a (same) way?  
  • Does a way  that started with minimum width (say a foot-path) under the claim ‘easement of necessity’, and continued, in the course of time, with a higher width (so that cars can be taken) for more than 20 years, yield or bring-in ‘easement by prescription’?

We find answer in negative form in Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109. It is held as under:

  • 10. However, a way of necessity is distinguished from the right of way acquired by prescription and cannot ripen into a prescriptive easement so long as the necessity continues. A way of necessity arises by virtue of conditions entirely different from easement of way created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negative the existence of a way by continuous adverse user. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

How to Subscribe ‘IndianLawLiveFree’? Click here – “How to Subscribe Free“

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Contract Act

Easement

Stamp Act & Registration

Will

Arbitration

Divorce

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Published by sajikoduvath

Leave a Comment