Right of Private Way Beyond (Other Than) Easement

Saji Koduvath, Advocate, Kottayam

Is it Possible to Acquire a (Private) Right of way otherwise than Easement?

Answer: Yes.

Examples:

  • Pathway formed by mutual grant (on the basis of custom or on an ‘agreement’).
  • A (private) pathway which lies on a property title of which is not (explicitly) vested in anyone.

Mutually Granted Ways – Irrevocable, on principles of Estoppel

The word ‘Grant’ in property law conveys bestowal of a revocable right. But it may be irrevocable in certain cases – a way made by ‘Mutual Grant’ (on the basis on an ‘agreement’) is an example. The principles of Estoppel may also apply to such an eventuality.

In Travancore area of Kerala State, there is a custom of separating two properties with retaining walls (usually mud-walls, in early times) leaving a space of 2-3 feet in between, called “Thondu” or “Kottappad” – meant for water drainage, use as pathway and maintenance of retaining walls, and also for clear separation of the properties. It is, in law, a mutual grant (but, not easement – for, easement is a right exercised on property on another alone).

After separating the properties by a ‘thondu’, it is considered that the property of each owner (by the side of the thondu) is only upto his retaining wall. But, technically the line of ownership is up to the middle of the ‘thondu’. Sometimes, it may give rise to an as-of-right user of way, to a third-party-neighbour who has to pass through that way.

Right of way Beyond (Other Than) Easement and Publlic Right  

In John Varghese (Pazhampallil) v. Sweena Anna Thomas, AIR 2014 Ker 1 (S.S. Satheesachandran, J.), it is held that the normal rule is that an existing pathway can be used by a property owner for the enjoyment of his property unobstructed by the defendant (neighbour) if it is shown –

  • that it is used as-of-right by the property owner and
  • title of that (way) portion of land is not with the defendant (especially when the disputed way is the only access to his property).

Facts in Nutshell (John Varghese v. Sweena Anna , AIR 2014 Ker 1)

  • The defendant was the adjacent property owner of the plaint property.
  • The only access to the plaint property was through the disputed way existed in between these properties.
  • The defendant blocked the way.
  • The plaintiff filed the suit for injunction for removal of the obstructions.
  • The suit was resisted by defendant contending that the plaintiff had no specific case –
    • as to any right of easement (to enjoy the way).
    • whether the pathway was a public way or a private way.

The Kerala High Court found –

  • The disputes to be adjudicated upon were –
    • what was the (civil) right claimed by plaintiff; and
    • should the plaintiff be non-suited for not pleading (i) a right of easement, or (ii) public right of way.  
  • The way was made when a partition was effected between the transferor of the plaintiff and his sister.
  • The partition deed would show that the pathway had been carved out earlier – even before execution of that deed, for convenient enjoyment of those properties. The defendant and her predecessor had only the right to use that pathway.

The High Court held (John Varghese v. Sweena Anna) as under:

  • “Where a person has a common boundary with a pathway beside his property, unless that pathway is shown to be the private property of another, normal rule is that he can make use of that pathway for enjoyment of his property.”
  • “If any portion of the pathway is owned by defendant, no doubt the plaintiff has to establish one of the two* aspects aforementioned.” (*easement/public-way)
  • “Defendant has no proprietary title over the pathway and as such no question of the plaintiff setting up any claim of easement against the defendant would arise for consideration.”
  • “In the given facts of the case plaintiff need not establish that the pathway had been dedicated to the public as a public way.”

What are the possible ‘Legal Rights’ in John Varghese v. Sweena Anna

It may be –

  • grant (say, implied or presumed grant, or lost grant),
  • customary easement, or
  • a civil right recognised by common-law or in equity.

Can it be a ‘Grant’ or an Easement

No. Because, ‘grant’ (or easement ) is a right on land of another.

  • Note: In State of Bihar v. Subodh Gopal Bose, AIR 1968 SC 281, it is observed as under:
  • ” … an easement being a right which is super-added to the ordinary common law incidents of the ownership of a dominant tenement, and which connotes a corresponding burden on a servient tenement, can only be created by grant, or by statute …

SECTION 4 of the Indian Easements Act defines Easements. It reads as under:

  • “An easement is a right
  • which the owner or occupier of certain land possesses,
    • as such,
  • for the beneficial enjoyment of that land 
  • to do and continue to do something, or to prevent and continue to prevent something being done,
  • in or upon, or in respect of, certain other land not his own.”

Even though the definition does not specifically says as to ‘right on a particular or identifiable person‘, courts in India consistently take the view that it is a right in the land of a ‘particular or identifiable’ servient owner so as to create a burden on the servient tenement. This principle is seen followed by the Kerala High Court in John Varghese v. Sweena Anna Thomas, AIR 2014 Ker 1 (supra).

Nevertheless, if it was possible to have a prescriptive right (under lost grant or otherwise) while there was an owner, when the right of way began, it is identified in law as ‘prescriptive easement’. (For this kind of easement, the way must have used for minimum 20 years.)

It can be a custom or customary easement

The essentials of a valid custom (SK Wodeyar v. Ganapati Madhuling Dixit, AIR 1935 Bom 371) are:

  • it must be definite,
  • ancient,
  • uniform and
  • not illegal in itself or unreasonable.

Our Apex Court observed in Ramkanya Bai v. Jagdish, AIR 2011 SC 3258, that to establish a custom, the following matters are to be proved:

  • (a) the usage is ancient or from time immemorial;
  • (b) the usage is regular and continuous;
  • (c) the usage is certain and not varied; and
  • (d) the usage is reasonable.

Section 18 of the Easement Act says as to customary easements. It reads as under:

  • “18. Customary easements. An easement may be acquired in virtue of a local custom. Such easements are called customary easements.”

Both custom and easement are involved in customary easement. In other words, when customary easement is claimed, elements of both custom and prescriptive easement are to be proved. [Lachhi v. Ghansara Singh, AIR 1972 HP 89.]

Customary easement includes, the right to take water and earth from a tank, use water for cattle from a tank,  graze cattle [Illustration (a) to sec. 18], to take earth for building and repairing their houses etc. [Jugal Kishore v. Umrao Singh, AIR 1949 All 272. ] These are rights of people of a locality; and it is not a public right.

Usually customary easements will not be accepted by a court without proper pleadings. But, it was held in Chandgi Ram v. Ram Lal, AIR 1963 Raj 161, that the customary easement of having access to a field would be available to tenants of land, if it was newly brought under cultivation, and the customary easement was so well known that the court could give effect to it – even if it was not pleaded in the plaint.

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Customary Easement – Not Necessarily be Annexed to Ownership of Land

In State of Bihar v. Subodh Gopal Bose, AIR 1968 SC 281, our Apex Court held as under:

  • “By the Explanation to s. 4 the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon. A profit-a- prendre is therefore included in the definition of “easement” in S. 4 of the Indian Easements Act. But an easement being a right which is super-added to the ordinary common law incidents of the ownership of a dominant tenement, and which connotes a corresponding burden on a servient tenement, can only be created by grant, or by statute. … ”
  • “An apparent exception to this rule is a customary easement. But a customary easement is not an easement in the true sense of that expression. It is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement: it is recognised and enforced as a part of the common law of the locality where it obtains. A customary easement arises in favour of an indeterminate class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is enforceable as a right to do and continue to do something upon land or as a right to prevent and continue to prevent something being done upon land. Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy.
  • A profit-a-prendre in gross – that is a right exercisable by an indeterminate body of persons to take something from the land of others, but not for the more beneficial enjoyment of a dominant tenement – is not an easement within the meaning of the Easements Act. To the claim of such a right, the Easements Act has no application. 
  • Section 2 of the Easements Act expressly provides that nothing in the Act contained, shall be deemed to affect, inter alia, to derogate from any customary or other right (not being a license) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property. A claim in the nature of a profit-a-prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law, undoubtedly the custom prevails. But to be valid, a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. A right in the nature of a profit-a-prendre in the exercise of which the residents of locality are entitled to excavate stones for trade purposes would ex facie be unreasonable because the exercise of such a right ordinarily tends to the complete destruction of the subject-matter of the profit.”

Customary Easement – Not an easement – Enforced under common law

It is observed in Gopalbhai Jikabhai Suvagiya v. Vinubhai Nathabhai Hirani, 2018  (Guj), that a customary easement is not an easement in the true sense of that expression; it is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement; it is recognized and enforced as a part of the common law of the locality where it obtains. A customary easement arises in favour of an indeterminate class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is enforceable as a right to do and continue to do something upon land or as a right prevent and continue to prevent something done upon land. Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy.

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Mutual way between adjoining landowners

B.B. Katiyar in his book ‘Law of Easements & Licences’, laid down as under:  

  • “22. Mutual way between adjoining landowners.-The weight of authority is to the effect that, where adjoining proprietors lay out a way or alley between their lands, each devoting a part of his own land for that purpose, and the way or alley is used for the prescriptive period by the respective owners of their successors-in-title, neither can obstruct nor close the part which is on his own land, and in these circumstances the mutual use of the whole of the way or alley will be considered adverse to the separate and exclusive use by either party. However, where the owners of land use an alley- way for their mutual convenience, the user being occasional, permissive, and for broken periods of time, no right of way in the alley is established by prescription“. (Quoted in: Varghese v. Jose Mathew @ Roy, 2014-3 KLT 1065; 2015-5 RCR (Civ) 457)

Section 15 is not Exhaustive

B.B. Katiyar in ‘Law of Easements & Licences’, further said as under: 

  • “67. Section 15 is not exhaustive.- As has been already pointed out the provisions of Section 15 do not exhaust, the modes of acquisition of an easement by long user and, therefore, do not preclude other titles of modes of acquisition. For instance, although a tenant cannot acquire a prescriptive right of easement in land belonging to his landlord he may claim such right by immemorial user on the basis of a presumed grant. If a plaint contains allegations of user of a way for fifty or sixty years and is not confined in its averments to the mode of acquisition in Section 15, namely, prescription, the acquisition of an easement of right-of-way can be implied under a presumption of lost grant, provided there was no prejudice to the defendant in such a case, the High Court in appeal can allow the claim without remanding the case. The word “easement” in Section 4 means perfected easement. To construe the expression “as an easement” occurring in Section 15 it is not proper to refer to the meaning of easement as given in Section 4″. (Quoted in: Varghese v. Jose Mathew @ Roy, 2014-3 KLT 1065; 2015-5 RCR (Civ) 457.)

In Halsbury’s Laws of England Vol 16(2) at Page 43, paragraph 79, it is observed as follows:

  • “79. Presumption in favour of long user. Every presumption is made in favour of long user. Not only ought the court to be slow to draw an inference of fact which would defeat a right that has been exercised during a long period, unless such inference is irresistible, but it ought to presume everything that it is reasonably possible to presume in favour of such a right. Where the user is equally consistent with two reasonable inferences, either of which would provide a lawful origin for the right enjoyed, the inference of a lost grant will not necessarily be drawn”. (Quoted in: Varghese v. Jose Mathew @ Roy, 2014-3 KLT 1065; 2015-5 RCR (Civ) 457.)

Paragraphs 81 and 82 read thus:

  • “81. Basis of prescription at common law. Prescription at common law is based upon a presumed grant which the law assumed to have been made prior to 1189, the first year of the reign of Richard I. By the ancient rule of the common law, enjoyment of an easement has to be proved from time ‘whereof the memory of man runneth not to the contrary, that is to say, during legal memory or since the commencement of the reign of Richard-I”.
  • 82. Time for which user must be proved. As it is usually impossible to prove user or enjoyment further back than the memory of living persons, proof of enjoyment as far back as living witnesses can speak raises a prima facie presumption of an enjoyment from the remoter era.
  • Where evidence is given of the long enjoyment of a right to the exclusion of all other persons, enjoyed as of right as a distinct and separate property in a manner referable to a possible legal origin, it is presumed that the enjoyment in the manner long used was in pursuance of such an origin, which, in the absence of proof that it was modern, is deemed to have arisen beyond legal memory. Unexplained user of an easement or other incorporeal right for a period of 20 years is also held to be presumptive evidence of the existence of the right from time immemorial, but the rule is not inflexible, the period of 20 years being only fixed as a convenient guide. It is not, however, necessary in the case of a claim by prescription at common law to prove user for 20 years next before the proceedings in which the claim is made”. (Quoted in: Varghese v. Jose Mathew @ Roy, 2014-3 KLT 1065; 2015-5 RCR (Civ) 457.)

As of Right User and Theory of Lost Grant

After quoting Halsbury, it is observed in Varghese v. Jose Mathew @ Roy, 2014-3 KLT 1065; 2015-5 RCR (Civ) 457, as under

  • “18. A reading of the above literature on the subject leaves one no doubt that merely because Section 15 of the Easements Act is not attracted, it may not be proper to decline relief to the plaintiff if other ingredients as mentioned by the authors referred to above are satisfied. If it is proved that there does exist a way as alleged in the plaint and it has been used for considerably long period i.e. over 20 years, then merely because the ingredients to attract Section 15 are not established, will the court be justified in declining relief?
  • 19. The answer seems to be in negative. In such cases, the courts have invoked the theory of lost grant for granting relief to the parties. When it is shown that a pathway is in existence and it has been used for a long time, the initial presumption drawn is unless shown otherwise it is used as of right.”

“Land Locking” and Claim of Easement

In Muttil Rajan v. Kuthirakkal Letha, Kerala High Court (Thomas P. Joseph, J.), 2012, found easement of necessity; and, pointed out that the law did not intend “land locking”, in the following words:

  • “22. I must notice the precarious situation in which the respondents are placed. Even assuming that towards the south west of plaint A schedule, a portion of the property belongs to the appellants, it is practically admitted that the plaint A schedule is locked by private properties on all sides, the major portion belonging to the appellants. They can gain access to the public road on the extreme north only through private properties surrounding the plaint A schedule. Severance of tenements is also proved. In such a situation, it is hard to say that the respondents are not entitled a right of easement over the plaint C schedule by necessity. Holding so will amount to land locking the plaint A schedule and the appellants not being able to get out of the plaint A schedule. That is not the intend of the law. When the mother of the respondents claimed a right of access along the western side of the plaint B schedule, the appellants pointed  out the plaint C schedule as the way. Now when over the plaint C schedule the respondents made a claim, the appellants would say that it is not plaint C schedule but it is the PQRS way referred to in Exts.C3 and C4 which for reasons above stated, is not a way which respondents could use as of right. I am not inclined to think that by accepting such dilatory contentions raised by the appellants, the respondents should be driven from pillar to post for an access.
  • 23. This litigation which in effect started in the year, 1996 had reached this court in several forms. Having regard to the various circumstances, I do not find any substantial question of law, justice or equity in the claim now being raised by the appellants that the respondents can have no right of easement by necessity over the plaint C schedule and that the alternate way available to them is the PQRS shown in Exts.C3 and C4.”

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Where No Positive Law, Equity Invoked to Fill the Gaps

It is held in Bola v. Sardana, 1997-8 SCC 522, as under:

  • “Equity steps in where the law has left yawning gaps”. (Quoted in: A. P. Showkath Ali v. State of Kerala, 2018-11 SCC 688).

In A. P. Showkath Ali v. State of Kerala, 2018-11 SCC 688, it was held as under:

  • “Even for courts, equity jurisdiction is meant to be exercised when there is no law operating in the field.”

It is observed in M.  Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, as under:

  • “658. The correlation between law and justice was the defining factor– in one sense, equity modifies the applicable law or ensures its suitability to address the particular circumstances before a court to produce justice. The modification of general rules to the circumstances of the case is guided by equity, not in derogation or negation of positive law, but in addition to it. It supplements positive law but does not supplant it. In a second sense however, where positive law is silent as to the applicable legal principles, equity assumes a primary role as the source of law itself. Equity steps in to fill the gaps that exist in positive law. Thus, where no positive law is discernible, courts turn to equity as a source of the applicable law. In addition to these, Derrett notes that there is a third sense in which equity or aequitas assumed importance – where established political authority is taken away or is in doubt and the formal sources of law are in doubt, the nature of judicial office requires a decision in accordance with ex bono et aequo. This was evidenced in decisions concerning widows and orphans and in the realm of mercantile law.”

Conclusion

In Nar Bahadur Khatiwada v. State of Sikkim, 2013 (Pious Kuriakose, J.) held as under:

  • “Unlike in England, in this country we do not have separate courts of equity. Indian Courts are governed by principle of equity also. The Supreme Court in Ashok Kapil v. Sana Ullah : ((1996) 6 SCC 342) has held that the maxim “Nullus commodum capere protest de injuria sua propria”, thereby meaning “no man can take advantage of his own wrong” is a salient tenet of equity which Indian Court have been following from time to time.”

From the above, it is beyond doubt that in Indian situation, it is necessary and proper to invoke the equity jurisdiction in the matters of ways to the plots of lands, wherever it is required.

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End Notes

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.

“Basis of Every Right of Easement Is, Theoretically, a Grant”

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user. It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, 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.”

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.” 

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. 

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, from long and continued user. Is there incongruity (in easement by prescription) between ‘grant’ (on one part) and ‘acquisition’ of easement 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 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.

“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.

Rule of Equity

The maxim ‘nullus commodum’ is applied in cases where false representation or fraudulent representation is made.

In Eureka Forbes Ltd. v. Allahabad Bank, 2010-6 SCC 193, the Supreme Court reiterated the principle as under:

  • “66. The maxim nullus commodum cap ere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations. In the present case Respondents 2 and 3 and the appellant have acted together while disposing off the hypothecated goods, and now, they cannot be permitted to turn back to argue, that since the goods have been sold, liability cannot be fastened upon Respondents 2 and 3 and in any case on the appellant.”

No man can take advantage of his own wrong & No Perpetration of a legal fraud

The Supreme Court, in Ashok Kapil v. Sana Ullah, (1996) 6 SCC 342, held as under :

  • “7. If the crucial date is the date of allotment order, the structure was not a building as defined in the Act. But can the respondent be assisted by a Court of law to take advantage of the mischief committed by him? The maxim “Nullus commodum capere ptest de injuria sua propria” (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, the respondent cannot secure the assistance of a Court of law for enjoying the fruit of his own wrong. The upshot is, if the District Magistrate has commenced exercising jurisdiction under section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, in respect of a building which answered the description given in the definition in section 3(i), he would well be within his jurisdiction to proceed further notwithstanding the intervening development that the building became roofless. We are inclined to afford such a liberal interpretation to prevent a wrongdoer from taking advantage of his own wrong.”

It is observed by Lord Tomlin in Maine and New Brunswick Electrical Power Co. Ltd. v. Alice M. Hart:

  • “In order to invoke a rule of equity, it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as for example, non-performance of a contract of which equity can give specific performance.”
  • (See: Bengal Nagpur Ry. Co. Ltd. v.  Ruttanji Ramji, AIR 1935 Cal – 347;
  • Ferro Alloys Corporation v. AP State Electricity Board, AIR 1993 SC 2005;
  • Dushyant N. Dalal v. Securities and Exchange Board of India, AIR 2018 SC 447; 2017-9 SCC 660)

Perpetration of a legal fraud

In A.P. State Financial Corporation v. Gar Re Rolling Mills, (1994) 2 SCC 647, it was observed as under:

  • “A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.”

Mere false description not vitiate, if sufficient legal certainty

The principles of nullus commodum is subject to another principle – mere false description will not vitiate, if there be sufficient certainty as to the object.

In Harikrishna Lal v. Babu Lal Marandi, (2003) 8 SCC 613, the Supreme Court observed as under:

  • “13. A reference may usefully be made to the maxim “falsa demonstratio non nocet, cum de corpore constaf” which means mere false description does not vitiate, if there be sufficient certainty as to the object. ‘Falsa demonstratio’ means an erroneous description of a person or a thing in a written instrument and the above rule respecting it signifies that where the description is made up of more than one part, and one part is true, but the other false, there, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the device; the characteristic of cases within the rule being that the description, so far as it is false, applies to no subject at all, and, so far as it is true, applies to one only. (See Broom’s Legal Maxims, 10th Edn., pp. 426-27.) Broom quotes (at p. 438) an example that an error in the proper name or in the surname of the legatee should not make the legacy void, provided it could be understood from the Will what person was intended to be benefited thereby.”

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