What is GRANT in Easement

Jojy George Koduvath.

“Basis of Every Right of Easement is Grant”

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: it is presumed that it is acquired by peaceable and open enjoyment, without interruption for twenty years and
  4. customary easements: it is inferred that it is 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.

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 a Right

Easement is a right possessed by the owner of a land (dominant land),

  • to use the land of another (servient land),
  • for the beneficial enjoyment of the dominant land.

Easement Does Not Confer Ownership or Possession

By virtue of easement –

  • No Ownership is bestowed in the (servient) land (AIR 2004 All 359; AIR 1925 Bom 335).
  • No Possession is obtained in the (servient) land. (2011 (2) KLT 605; AIR 1925 Bom 335).  
  • No Substantive Interest is created in the (servient) land. (2003 (1) KLT 320; AIR 1954 All 393).

Easement (सुखाधिकार) is Well Recognised, And Circumscribed by Law

  • Easement is a limited right to ‘use’or ‘enjoy‘ another’s land.
  • It is to do, or to prevent to do, some specific thing.
  • It is to be exercised in a way least onerous to ‘another’s land’.
  • It is not a right to build and enjoy.
  • The right gained cannot be enlarged.
    • That is, an easement of way to a particular (dominant) property cannot be extended to another property by the dominant owner; an easement for residential purpose cannot be enlarged for an industrial purpose. (Sec. 28, 29, 43 etc.)
  • Servient owner can use his land in any manner (without disturbing enjoyment of the easement).

According to ‘Katiyar on Easements’:                                                                   

  • Easement is not a right to land or exclude owner.
  • It is not a right to permanent occupation. 
  • It does not confer exclusive right of user/enjoyment.
  • And, it is not a corporeal interest in land.

Easement – Definition under the Indian Easements Act

SECTION 4 of the Indian Easements Act defines Easements 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.”

Salient Limitations of Easement under the Indian Easements Act

  • The owner of a land only ‘uses’or ‘enjoys‘ land of another (Sec. 31)
  • It is only ‘enjoyment’ of soil or things ‘subsisting’ (Explanation in Sec. 4).
  • It allows limited enjoyment of land, and advantages from its situation: S. 7
  • Right be exercised in a way least onerous to ‘another’s land’: Sec. 22
  • Servient owner can secure full enjoyment; but, he should cause as little inconvenience: Sec. 24: 2017-2 KLT 63

It is Not a right to:                                            

  • tend to total destruction of servient tenement: S. 17 (2003 (1) KLT320)
  • make additional burden: S. 23
  • make constructions in, or cultivate upon: (2003 (1) KLT 320).
  • prevent servient owner to use: S. 27 : 2003 (1) KLT 320
  • enlarge purpose of, or accustomed user: S. 28
  • substantially increase an easement: S. 29
  • prevent servient owner from obstructing excessive  ‘user’ of servient land – as ‘enjoyment of easement’: S. 31
  • increase burden by making permanent change in do. tent: S. 43
  • capable of forming grant – No easement, if Not capable of forming grant (without document or registration): Mohammed vs. Doomunhi Achari, 1987 (2) KLT 1037.

No easement if:

  • right claimed is incidents of ownership.
  • servient property belongs to him. Easement is a right with conscious knowledge that the servient property does not belong to him. AIR 1966 Raj 265. It must also be with proper animus as to easement: AIR 1973 Mad 173.

Easement is acquired; Not arise out of ‘Express Permission’

Sec. 12, Easements Act states that an easement is acquired (under grant, partition or prescription) by the owner of an immovable property. Section 12, Indian Easements Act, 1882 reads as under:

  • 12. Who may acquire easements-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.
  • One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.
  • No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.

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. 

Sec. 28 of the Easement Act reads as under:

  • 28 Extent of easements -With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:-
  • Easement of necessity -An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed.
  • Other easements -The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired. In the absence of evidence as to such intention and purpose-
    • .(a) Right of way -A right of way of any one kind does not include a right of way of any other kind;
    • (b) Right to light or air acquired by grant -The extent of a right to the passage of light or air to a certain window, door on other opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non-testamentary instrument was made;
    • (c) Prescriptive right to light or air -The extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used;
    • (d) Prescriptive right to pollute air or water-The extent of a prescriptive right to pollute air or water is the extent of the pollution at the commencement of the period of user on completion of which the right arose; and
    • (e) Other prescriptive rights -The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right.

Sec. 29 of the Easement Act reads as under:

  • 29. Increase of easement -The dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement. Where an easement has been granted or bequeathed so that its extent shall be proportionate to the extent of the dominant heritage, if the dominant heritage is increased by allution, the easement is proportionately increased, and if the dominant heritage is diminished by dilution, the easement is proportionately diminished. Save as aforesaid, no easement is effected by any change in the extent of the dominant or the servient heritage.

Who has the Burden to show Alternate Way

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, it is held that the plaintiff claiming easement of necessity or grant has only a primary burden to prove the absence of any alternate pathway.

  • “In a case where the original plaintiff was claiming easement right either as grant or as of necessity the plaintiff has only a primary burden to prove the absence of any alternate pathway. As the defendants have not proved the existence of any pathway for access to Plaint `A’ schedule property the version of the plaintiff that there is no alternate pathway shall be accepted. … The defendants have not entered the witness box to disprove the evidence led by the plaintiff.”

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.”

Easement and Grant

The term ‘Grant’ is used in law to denote-

  • A generic term to mean ‘transfer’ of immovable property (e.g., sale, lease, gift etc.).
  • But, it will not be a ‘transfer’ of property; and remain as a concession, permission, settlement, grant of easement etc., if it is used in place of ‘transfer’, purposefully, to denote a lesser right.
  • Present, aid, help etc., and the act of a settlor of trust, or of donor of a charity.
  • A technical term to denote conditional-transfer of lands by sovereign especially when it is purposefully used to differentiate from ‘transfer’ of property.
  • More than a licence (which does not create an estate or interest) and less than an outright and unconditional ‘transfer’ of property.

Characteristics of ‘grant’

  • Usually it denotes a grant by deed.
  • It can be with or without consideration.
  • Unless specifically specified, it is creation of an ‘interest’ in property (in case of easement, no interest is created; but only a right of enjoyment). 
  • As long as the conditions are fulfilled, grant is usually irrevocable.
  • Conditions can also be fixed to limit the period of grant.
  • Inferior interest, out of an interest retained by the grant or, e.g. the grant of a lease of land by the person holding the freehold. (Collins Dictionary of Law).

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

‘Grant’ – Salmond on Jurisprudence

What is ‘grant’ is stated in Salmond’s Jurisprudence, 12th Edition, at pages 338-339, under the heading ‘The Classes of Agreements’. According to Salmond  a grant–

  • ” is an agreement“,
  • “creates a right“
  • is NOT “a right in Personam between the parties to it”,
  • examples – “grants of leases, easements, charges, patents, franchises, licences and so forth“.

Salmond distinguishes ‘grant’ from other legal concepts as under.

  • “…. A contract is an agreement which creates an obligation or a right in personam between the parties to it.
  • A grant is an agreement which creates a right of any other description; examples being grants of leases, easements, charges, patents, franchises, licences and so forth.
  • An agreement which transfers a right may be termed generically an assignment. On which extinguishes a right is a release, discharge, or surrender.” (Quoted in H. Anraj v. Government of Tamil Nadu  (& Shri Dipak Dhar v. The State of West Bengal), AIR 1986 SC 63: (1986) 1 SCC 414.)

Grant of Right of Way must be Liberally Construed

Katiyar on Easements repeatedly said in his treatise that a ‘grant of right of way must be liberally construed’ to ensure the dominant owner’s beneficial enjoyment of his land. Gale on Easements (leading English treatise) and “Law of Easements and Licenses” by P.S. Narayana also emphasised this principle.

In Mathai v. Jordi Poulose,  ILR 2011-2 Ker 484; 2011-2 KHC 591; 2011-2 KLT 605, it was found that the suit agreement, made it clear that the right given thereunder was not a personal right but a right for the beneficial enjoyment for the property, and it could only be a right of easement and not a licence. The High Court  referring Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, said further as under:

  • “18. True, the plaint did not specifically show that appellant has claimed a right of easement by grant. But as rightly argued by the learned counsel appearing for the appellant, a pleading must be liberally construed and placing undue emphasis on the form is not in the interest of justice. The Honourable Supreme Court in Ram Sarup Gupta v. Bishun Narain Inter College (AIR 1987 SC 1242) held:
  • “It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.”

Taken from: What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?

Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545

The Supreme Court has observed, in Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545 as under:

  • “25. In the case at hand the High Court found that the approach of the trial court and the first appellate court was erroneous inasmuch as they proceeded on the basis as if it is a case of easement of necessity. Had the trial court and the first appellate court considered the evidence in the light of the respective stands of the parties and then concluded one way or the other, the position would have been different. When the approach was fundamentally wrong the High Court cannot be faulted for having gone into the question as to what was the proved intention of the party as culled out from the partition deed. The relevant (translated) portion reads as follows:
  • “Aravamutha Chettiar commonly enjoy the well situate on the portion allotted to Purushothaman Chettiar, likewise Purushothaman Chettiar commonly enjoy the lane situate on the portion allotted to Aravamutha Chettiar. Well is the exclusive property of Purushothaman Chettiar and lane is the exclusive property of Aravamutha Chettiar.”
  • 26. Though an attempt was made by learned counsel for the appellant to contend that the quoted portion was only the preamble and not the intention of the parties, the same is clearly untenable. Earlier to the quoted portion it has been noted as follows:
  • “As per the above arrangement we decided to enter into the partition deed and hence we are writing this partition deed. We should take possession of our respective shares and enjoy the same uninterruptedly forever.”
  • 27. Therefore, there is no manner of doubt that the intention was clear that it was a grant and not an easement of necessity which could be extinguished.
  • 28. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) 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. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasieasement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though 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. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute; in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13.
  • 29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. 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 recognised in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.”

Mathai v. Jordi Poulose

In Mathai v. Jordi Poulose, ILR 2011-2 Ker 484; 2011-2 KHC 591; 2011-2 KLT 605, it is held as under:

  • “An easement can be acquired by an express grant or even by implied grant. The express grant could be oral and need not even be written and no form is prescribed. It will be sufficient if the words stated or written convey the idea of grant of a right of easement unequivocally.”

The High court quoted the following from In B.B.Katiyar Law of Easements and Licences Thirteenth Edn. at page 12 which reads as under:

  • “an easement may be acquired by express grant. It may be oral and need not be in writing or registered.”

The High Court continued as under:

  • “12. Justice Madhavan Nair in Musunoori Satyanarayana Murti v. Chekka Lakshmayya and others  RSA 1267 & 1270 of 2005 24 (AIR 1929 Madras 79)quoting Peacock in his Tagore Lectures on the Easement Act by Mitchell that “by the law of India, wherever the Transfer of Property Act applies, the grant of easement by way of sale must be made by a registered instrument, an easement being an intangible thing, and if made by way of gift must also be by a registered instrument signed by or on behalf of the grant or and witnessed by at least two witnesses” held:-
  • “If I may say so with respect , very carefully and elaborately considered in Bhagwan Sahai v. Narasingh Sahai(1909 31 All.612) and I cannot do better than refer to the exposition of the law on this point contained in that judgment in answer to the appellant’s argument. In that case “the owner of a house undertook by an “argument” to permit the  owner of an adjoining house when he built a second storey which was in contemplation, to discharge rain water and also water used for daily household purposes into the premises of the former.”

Sec. 92 of the Evidence Act

But, it is noteworthy that Sec. 92 of the Evidence Act enacts that when the terms of a grant or other disposition of property are reduced into writing, whether or not such contract or grant is compulsorily required to be reduced into writing and registered, no oral evidence shall be admitted to contradict, vary, add to or substract from its terms.

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