“Implied Grant” in Law of Easements

Saji Koduvath, Advocate, Kottayam.

‘Implied Grant’ Recognised in Three Distinct Legal Connotations

  • 1. Theoretical Basis of Easement of Necessity. Implied from the necessity of enjoying the dominant tenement; arises by operation of law in the absence of any other access.
  • 2. Theoretical Basis of every Right of Easement  The origin of all easements is a grant by the servient owner; it may be expressed, as is mentioned in Sections 8 to 12, or implied from the circumstances as in Section 13, or presumed from long and continued user as in Section 15 of the Act.
  • 3. Judicially Acknowledged Sources of Easement. Common Law of India recognises following two modes of ‘easements’ –
    • (i) Village Pathways (falls under Sec. 18 Easements Act – Customary Easements): Easement inferred from a long and continued practice of user by a certain class of the public in certain locality. E.g.: a village pathway (See: Lachhi v. Ghansara Singh, AIR 1972 HP 89; Harendra Nath Chakraborti v. Asim Sindhu Chakraborty, AIR 1981 Cal 325; Yohannan Vs. Mathai, 1991-1 Ker LJ 605, 1991 KHC 571).
    • (ii) Implied Grant of Pathways: A species of easement by grant, inferred from the conduct of parties or surrounding circumstances; a recognised source of easement based on presumed intention. (See: Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622; L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307).

“Implied Grant”: Inferred or Presumed from the Circumstances

The origin of all easements is, in theory, a grant by the servient owner. ‘Easement by grant’ is a well-recognised category of easement, which may be either express or implied. An implied grant may be inferred from the surrounding circumstances or the conduct of the parties.

  • Note: Traditionally, the term ‘implied easement’ was used by the conventional authorities only to denote ‘easement of necessity‘. However, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the same to refer to an easement of grant ‘arising by implication‘.

The right to an easement by way of implied grant was upheld by the Supreme Court in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622. In this decision, the Court observed that an ‘easement of grant is a matter of contract between the parties (and it may have its own consideration)‘; and that ‘the grant may be either express or even by necessary implication‘.

It is seen that the Supreme Court has only reaffirmed the legal position previously upheld by several High Courts.

In L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307, the existence of a right of way was inferred from the words of the relevant documents. It was observed as under:

  • 8. From all these documents Thiru D. Ramaswami Iyengar stated, it is clear that there is an implied grant of easement over the 30-ft. road. He cited Ratanchand Chordia v. Kasim Khaleel, AIR 1964 Mad 209, wherein a Bench of this Court has laid down the principles on which an implied grant can be inferred. The question whether a grant can be implied or not would only arise in a case where there is no express grant. To say the least the contention that the absence of an express grant would negative an implied grant is quite untenable. It is from attendant circumstances and other documentary evidence that an implied grant has to be inferred. It is pity that the lower appellate Court has not bestowed its attention before it disposed of the appeal, on the aspect of spelling out an implied grant, which is recognised by law.
  • 9. Annapurna v. Santosh Kumar, AIR 1937 Cal 661 also makes it clear that in law implied grant has to be inferred and lays down that grant can be presumed from the description of boundaries in the conveyance which mentions the same to be a common passage.

In L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR  1972 Mad 307, the High Court also referred Kuppakkal v. Mathan Chettiar, AIR 1924 Mad 834, where ‘a grant of an easement of way’ had been inferred from the words of the lease deed. 

It was held in R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, that the plaintiff could found his case on an implied grant of easement 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.

Also read: Implied Grant: A Valid Mode of Creation of Easement under Indian Law

Can an ‘Implied Grant‘ exist Independent of Sec. 13 Easement Act?

R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, addressed the issue with clarity, holding as under:

  • Merely because the juristic basis of the easement of necessity (Section 13) is said to be an implied grant, the converse will not follow.
  • In other words, where an easement is acquired by grant, either expressly or by necessary implication, it will not amount to an easement of necessity.

K.S. Venkataraman, J., said it in the following words:

  • “43. In some of the decisions and text books it is observed that in the case of an easement of necessity, which is dealt within Section 13 of the Easements Act, the juristic basis is that the law implies a grant. I have already quoted from Peacock on Easements who calls this a presumed grant as distinguished from acquisition of grant by implication on a true construction of the deed. The further point to be noted is that, merely because the juristic basis of the easement of necessity, which is dealt with in Section 13, is said to be an implied grant, the converse will not follow. In other words where an easement is acquired by grant, either expressly or by necessary implication, it will not amount to an easement of necessity under Section 13 of the Act for the purpose of being liable to be extinguished under Section 41. Indeed, on principle it is clear that, if a person acquires a grant expressly or by necessary implication, it will usually be on payment and there is no reason why such an easement, which has been paid for, should be extinguished. In the case of an easement of necessity arising under Section 13, because the law raises it, it is understandable why it will come to an end when the necessity ceases, as enacted in Section 41. That reason cannot apply to an acquisition by grant.”

Following is the relevant portion of this Judgment where Peacock on Easements is referred:

  • “In Peacock on Easements (Third Edition), Chapter VI deals with acquisition of easements. Part II thereof deals with acquisition by express grant. Part III deals with acquisition by implied grant, and it is distinguished from acquisition by presumed grant or operation of law, which is dealt with in Part IV. Briefly speaking, it is pointed out that it would be acquisition by implied grant on the language of the document correctly construed, whereas acquisition by presumed grant or operation of law would arise under the provisions of law such as those contained in Section 13 of the Easements Act. Thus at page 326 it is observed as follows:
    • “An implied, grant, in the sense here used, is a grant which arises by implication from the language of the particular instrument construable according to the ordinary rules of construction, one of which is that the circumstances existing at the date of the grant may be looked at in order to ascertain the intention of the parties.”
  • This is repeated at page 336 as follows:
    • “Thus the question whether or not a way has passed under a grant or devise by the use of general words, still remains one of construction to be determined according to the intention of the parties as expressed in the instrument and ascertainable from the state of circumstances existing at the date of its execution.”

Methods of Acquisition of Easements

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are pointed out (Ramkanya Bai v. Jagdish, AIR 2011 SC 3258) to be the following:

  1. easements by grant: express grant by the owner of the servient heritage
  2. easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
  3. easements by prescription: that it is presumed to be acquired by peaceable and open enjoyment, without interruption for twenty years and
  4. customary easements: it is inferred to be acquired by virtue of a local custom.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

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

  • “13. On the question of easement by grant, the Appellate Court was of the opinion that the plaintiff’s claim in that respect stood proved. The plaintiff had acquaintance and association with the Ashramam and Yogini Amma from his childhood days as revealed from the oral and documentary evidence. Considering the location and nature of `B’ schedule pathway, the location of two pillars at its inception and the gate from which it started, it could be seen that it had been in use by the plaintiff as a pathway. The plaintiff had been residing in the house on `A’ schedule property even prior to the deed of settlement. Therefore, the Appellate Authority arrived at the conclusion that the plaintiff had obtained right of easement of grant from Yogini Amma over the `B’ schedule pathway.
  • An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar’s Commentaries on Easements and Licenses, p. 762).  It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff. Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B’ schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.”

The aforesaid Supreme Court decision (Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622) arose from the Kerala High Court decision, Sree Swyam Prakash Ashramam v. N. Gopala Pillai on 9 May, 2006. It was affirmed by the Supreme Court. The Kerala High Court held as under:

  • “Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

Upholding the view of the Kerala High Court the Apex Court held as under:

  • “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.”

No Explicit ‘Consideration’ Required for Easement by Grant

Neither the provisions of the enacted law (Easements Act, 1882) nor judicial decisions specifically address the requirement of ‘consideration’ in the creation of easements by grant. This omission is understandable, as Indian law clearly permits the acquisition of easements by grant – both express and implied. Since an easement may arise by implication, and the intention to grant can be inferred from the terms of the grant or the surrounding circumstances, the fundamental principle of easement law – that every easement is, in theory, rooted in a grant – supports the conclusion that no express consideration is required for the creation of an easement by grant.

Sec. 8 of the Indian Easements Act reads:

  • “An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or, on his behalf, by any person in possession of the same.”

Sec. 13 further elaborates on easements of necessity and quasi-easements, indicating that such easements can arise from the transfer or bequest of immovable property, again without a requirement for consideration.

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held:

  • “Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user.”

Basis of every Right of Easement is Theoretically a Grant

In Lachhi v. Ghansara Singh, AIR 1972 HP 89, it is held as under:

  • “The basis of every right of easement by whatsoever method it may have been acquired, is theoretically a grant from the servient-owner.
    • It may be expressed, as is mentioned in Sections 8 to 12 of the Act, or
    • it may be implied from the circumstances as in Section 13 of the Act or
    • it may be presumed from long and continued user for a certain period as in Section 15 of the Act, or
    • it may be inferred from a long and continued practice of user by a certain class of the public in certain locality.” 

Alternative Way – Not Defeat – Implied Grant (Grant by Implication)

The existence of alternative way will defeat easement of necessity and quasi easement. But, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held – ‘alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant‘. It includes the claim of implied grant also. (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, they are 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 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.

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.

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

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.

Easement is Acquired; Not Arise out of ‘Express Permission’

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. 

Note: A license is personal to an individual, whereas a ‘grant’ in an easement pertains to a right attached to the land.

Easement and Licence – Distinction

Division Bench of the Delhi High Court, in Chandu Lal v. Municipal Corporation of Delhi, AIR 1978 Del 174, distinguished easement and licence as under:

  • “26… A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain the right. He is entitled to resist in defence of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser……..”

End Notes:

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.”

Easement by Prescription is ‘Acquired’ by ‘Prescriptive’ user.

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 vs 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.

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, or  
  • 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.”

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

Yes.

It is held in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, Easement of Implied Grant can be granted in a suit even though “Grant” alone was Claimed (Alternatively to easement of necessity). Facts of the case, 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, No evidence of any 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.”

In this decision our Apex Court has also quoted the following from Katiyar on Law of Easements and Licences –

  • “There are numerous cases in which an agreement to grant easement or some other rights has been inferred or more correctly has been imputed to the person who is in a position to make the grant, on account of some action or inaction on his part. These cases rest on the equitable doctrine of acquiescence, but they may be referred to, for the purpose of classification, as imputed or constructive grants. The party acquiescing is subsequently estopped from denying the existence of easement. It is as if such person had made an actual grant of the easement… … It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. 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“.

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.

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

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

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