A GRANT Must be Construed Most Strongly Against the Grantor

Jojy George Koduvath

Introduction

The general principles of interpretation of ‘grant’ is seen in the Privy Council decision -Basiram Saha Roy v. Ram Ratan Roy, AIR 1927 PC 117; 1926 54 Law Reports Ind.App. 196. It reads as under:

• “A grant in respect of its amplitude is always construed (unless it be a Crown grant) against the grantor.”

Part I

Grant is controlled by the terms and conditions of the Grant

A right of easement by grant is controlled by the terms and conditions of the grant (C. Hirajee v. Suraj Bali – AIR 1929 Oudh 351). An inference is possible that the way was meant for vehicular traffic if the grantee owned a vehicle at that time.

F. Peacock in “Law Relating to Easements”, 3rd Edition at page 494, states that when the easement is by way of grant its extent and mode of enjoyment must, in conformity with the general rule, be ascertained from the terms of the instrument itself which are to be construed with reference to the circumstances existing at the date of the instrument. (See: C.H. Saraswathi Amma v. C.H. Seethamma, 2009 Supreme(Online)(KER) 10248, SA/136/1999, 18-11-2009 (Thomas P.Joseph, J.)

Where grant is silent about the extent of the user, construed against granter

The general accepted principle of law is that where the grant is silent about the extent of the user, the grant must be construed most strongly against the granter and a reasonable user in the circumstance of each case is to be interfered

In Bina Das Gupta v. Sachindra Mohan Das Gupta, AIR 1968 SC 39, followed the statement of law in Savill Bros. Ltd. v. Bethell (1902) 2 Ch. 523 at pp. 537, 538), by Stirling L. J. which held as under:

• “It is a settled rule of construction that where there is a grant and an exception out of it, the exception is to be taken as inserted for the benefit of the grantor and to be construed in favour of the grantee. If then the grant be clear, but the exception be so framed as to be bad for uncertainty, it appears to us that on this principle the grant is operative and the exception fails.” (Quoted in: Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 SC 2609; 1973-2 SCC 825.)

In Simon v. N. Jayanth , 1986 KLT 457, the Kerala High Court observed as under:

• “……….Where, the grant however is silent about the extent of the user, the grant “must be construed most strongly against the grantor” and a reasonable user in the circumstances of each case is to be inferred. A right of way cannot be enlarged in such cases to extend the area of the right of easement; it cannot also be unduly restricted within that area either. If, therefore, the right of way admits the use of vehicles, that right cannot normally be refused and a right of way in such cases cannot be reduced to a mere footpath.”

The High Court quoted the following passage from Halsbury’s Laws of England, (Fourth Edition), Vol. 14, paras 149 to 151:

• “If a right of way is claimed under an express grant which is actually existing, the nature and extent of the right depends upon the proper construction of the language of the instrument creating it. It is for the court to put the true construction upon the words used in the grant, guided, in the absence of any clear indication of the intention of the parties, by the maxim that a grant must be construed most strongly against the grantor.
• The construction of the grant depends on the circumstances surrounding the execution of the instrument. Thus, a grant of a right of way per se and nothing else may be a right of footway or a general right of way or a right to any other kind of way, according to the circumstances of the case. Among these circumstances the nature and description of the land or buildings comprising the dominant tenement, and the nature of the place over which the right is granted as it existed at the date of the grant, are always very material considerations.”

After quoting the above passage it is held in Kumaran Nair v. Radha Bai, 2024 KER 43228 (C. Pratheep Kumar, J,) as under:

• “Therefore, while considering the width of the grant, paramount consideration should be given to the intention of the grantor.”

In Mary Varghese v. Saju John, R.S.A. Nos. 2 & 3 of 2008, 25.5.2015, 2015 Supreme(Ker) 413, (A.V. Ramakrishna Pillai, J.), after referring Simon v. N.Jayanth , 1986 KLT 457, it is observed as under:

• “13. It is true that the recitals in Ext.A3 are not cogent enough to clearly identify the starting point as well as the end point of the pathway. However, as it specifies that the lie of the pathway is along the northern boundary of DW2, the only possible inference that can be drawn is that it runs through the entire northern boundary of the aforesaid 21.250 cents of property covered by Ext.A3, starting from east and ending in the public road on the western side.”

Grant governed by the Terms; It can arise by Implication

The grant of easement may be express or even by necessary implication.

 In Sree Swayam Prakash Ashramam and another Vs. G. Anandavally Amma, (2010) 2 SCC 689, the Supreme Court considered:

• i) whether a case for easement of grant by implication can be raised?
• ii) even if there are no pleadings in the plaint regarding easement by grant by implication, can such a question be decided?

The two questions were answered in affirmative. It was held that merely because the settlement deed in that case did not mention the right to use the way, that by itself will not mean that a grant by implication is not made out.

 It is observed in Sree Swayam Prakash Ashramam and another Vs. G. Anandavally Amma, (2010) 2 SCC 689

• “22. The High Court quoted with approval Katiyar’s note to Section 8 of the Easement Act, which reads as follows:
  • “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”.
• 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.”

It was further held that even in the absence of any issue regarding the same, if the defendant is not able to show that plaintiff was using any other way it is difficult to negate such contention. It is held as under:

• “23. We have heard Mr. T.L. Viswanath Iyer, learned senior counsel for the appellants and Mr. Subromanium 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.
• 24. 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).
• 25. 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).
• 26. 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 respondents 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.
• 27. 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 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.
• 28. In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K.Mukherjee, as His Lordship then was observed (AIR p.663):
  • “………….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.”

In Velayudhan v. Padmanabhan, 1988 (2) KLT 417; 1988 KHC 461, it was held by the Kerala High Court that easement of grant is a matter of contract between the parties and it may have its own consideration in some form or another.

In Hero Vinoth Vs. Sheshammal, (2006) 5 SCC 545, the Apex Court affirmed the above view and held that in the matter of grant the parties are governed by the terms of the grant and not anything else.

Easement of necessity and quasi easement 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.

Part II

Grant should be construed most favourably to the Sovereign

In Mohsin Ali v. State of M.P., AIR 1975 SC 1518; 1975 2 SCC 122, it is observed that the State-Grants require a different interpretation. It is said as under:

• “16. In England contrary to the ordinary rule applicable to grants by a subject, grants by the Crown are usually construed most favorably for the Crown. The rule in case of Royal Grants is that general words will not pass prerogative rights by implication.”

In Raja Rajendra Chand v. Mst. Sukhi, AIR 1957 SC 286, it was pointed out that the English rule that a grant should be construed most favourably to the Sovereign was subject to the exception that, in cases of grants made for valuable consideration, as is the position in the lease before us, the Sovereign s honour must take precedence over the Sovereign’s profit. This Court said (at page 292) there:

• “It is, we think, well settled that the ordinary rule applicable to grants made by a subject does not apply to grants made by the Sovereign authority; and grants made by the Sovereign are to be construed most favourably for the Sovereign. This general rule, however, is capable of important relaxations in favour of the subject. It is necessary to refer here to such only of those relaxations as have a bearing on the construction of the document before us : thus, if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals. In case where the grant is for valuable consideration, it is construed in favour of the grantee, for the honour of the Sovereign: and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereign s profit (see para 670 at p. 315 of Halsbury s Laws of England, Vol VII, Section 12, Simonds Edition).” (Quoted in: Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 SC 2609; 1973-2 SCC 825.)