1. In this case plaintiff No. 1 and defendant No. 1 are brothers. Plaintiff No. 2 and defendant No. 2 are cousins, being the son of plaintiff No. 1 and the son of defendant No. 1 respectively. Originally they formed a joint family, but in l921 a deed of partition was executed by the parties. Under this deed a certain house bearing Municipal No. 197 with a well at the back fell to the share of the defendants, while the neighbouring house No. 201 fell to the plaintiffs' share. This latter house has got no Well. There were other properties covered by this partition deed, with which we are not concerned. The deed contained a clause at the end to the following effect:-
In the house, Municipal No. 197, in (its) back part, (there) is a well of water. That has exclusively gone to the hare of Janardan and Narayan. Ramchandra and Gopal, not having a well should, out of brotherly affection, be allowed to take the water of the well. They are asking (it), not as a matter of right, hut simply out of (brotherly) regard. Hence this recital is herein written (inserted).
2. Disputes arose about the use of the water from the well in question, and the defendants built a wall which the plaintiffs contend obstructed their old passage to the well, and their right to take water from it. So litigation resulted. The plaintiffs case in the trial Court was that the plaintiffs had an absolute right to take water from the well, and that the erection of the wall in the way of the passage to that well was an illegal obstruction ; they, therefore, asked for a mandatory injunction that that wall should be removed. The defendants, on the other hand, contended that the clause in the deed was passed under circumstances which showed that the right was granted only as a matter of favour during the defendants' pleasure and for a limited time ; they, accordingly, pleaded that the plaintiffs had no right either to the well or to the way to it, as claimed in the plaint. They wanted to give oral evidence as to what they asserted was the real agreement, but the Subordinate Judge, in our opinion, rightly refused to take oral evidence on that point contrary to the provisions of Section 92 of the Indian Evidence Act. On a consideration of the clause he held that there wad no indefeasible right of easement, such as the plaintiffs claimed, and that the utmost effect the concession in question could possibly have was to grant a personal right to the plaintiffs to take the water of the well and nothing more. Ho held, accordingly, that the plaintiffs had no right to ask for the removal of the wall, which the defendants had put up. He further said that the plaintiffs would be able to go by another route to take water from the well, even if the doorway in the wall happened to be closed, and that would be sufficient for the exercise of the right given by the clause in the deed. Consequently, he held that the plaintiffs' suit entirely failed and dismissed it with costs.
3. On appeal, the District Judge has held that what is granted by this clause amounts to an easement to take the water of the wel, vesting in the plaintiffs as owners of house No. 201; and that the defendants had no right to prevent the plaintiffs from exercising this right of easement and taking water from the well in suit.
4. As to the question whether a mandatory injunction should issue as prayed for, the learned Judge said :-
It is not clear from the materials on the record whether the existence of the wall sought to be removed causes any such obstruction to the full enjoyment of the easement under Section 24 of the Easements Act.
He, therefore, reversed the decree of the lower Court and remanded the. suit for disposal according to law, with reference to the remarks and findings in his judgment.
5. The main question in this second appeal is the right construction of this clause, and the nature of the right that the plaintiffs obtained under it. In my opinion, due weight should be given first of all to the fact that obviously joint possession was not given of this well, as might have been done. The house with its appurtenances including this well was definitely allotted to the defendants for their exclusive possession and ownership, and there was no reservation of the well for joint possession. Furthermore, in my opinion, the terms of the clause in referring to the grant as one made out of brotherly affection, and not as a matter of right, do not favour the contention of the defendants appellants that what was granted was an easement as defined in the Indian Easements Act. The District Judge has referred to illustration (b) to Section 4 of the Indian Easements Act which, no doubt, deals with a right of the kind in question, namely, the right to go on a neighbour's land and to take water for the purposes of his household out of a spring therein. But the whole point of the illustration is that A has that right as the owner of a certain house, and if in this case the partition deed had plainly said that the plaintiffs, as owners of house No. 201, had a right to take the water from the well, there would of course be no question about its amounting to an easement, as shown in that illustration. But to my mind it is perfectly clear that the clause cannot be construed as having that effect, and that the mere fact that under the partition deed they were allotted house No. 201 cannot prevail over the terms in which this clause has been couched.
6. If then the right is not an easement, the nest question is whether it is a license, and if so, whether it is a revocable license or an irrevocable license. The definition of a license in Section 52 of the Indian Easements Act seems to me to apply to this case, inasmuch as a right has been granted to the defendants to do or continue to do, in or upon the immoveable property of the plaintiffs something which, in the absence of such right, would be unlawful, and inasmuch as that right, for the reasons I have already given, does not amount to an easement. Nor can it be said to be an interest in the property. The words 'an interest in the property' are presumably intended to cover cases where there might be a right in the property granted such as a lease, or a right of joint possession, that I have already dealt with. But in this case the clause does not confer a definite interest in the property but merely a right of taking water.
7. Then we have to refer to the terms of Section 60 of the Indian Easements Act to see whether the license is revocable or not. The only part of it that is applicable to the present case is Clause (a), under which a license is irrevocable if it is coupled with a transfer of property and such transfer is in force.
8. Now there are two ways of reading the words 'transfer of property' with reference to the facts of this case. First of all, it seems to me that the case may be said to fall under this clause, in so far as this particular license is coupled with a transfer of property under the terms of the partition-deed. That deed assigns some of the family property to the plaintiffs and some of it to the defendants ; and although it is true that it is open to question how far the partition-deed could be said to amount to a 'transfer of property,' as defined in the Transfer of Property Act, yet it seems to me that Section 60 does not necessarily use these words in the limited sense of a transfer as defined in the Transfer of Property Act. The provisions of the Transfer of Property Act do not expressly refer to the case of a partition, but that does not justify the conclusion that it cannot effect a transfer of property. And if you look at the corresponding English law on the subject, you will find that the word generally used is not 'transfer' but 'grant.' I think the word 'transfer' is used in that sense. Here it may be said that the license was granted as part of a partition which granted certain property to the plaintiffs, and that, therefore, it is a license coupled with a transfer of property falling under Clause (a) of Section 60.
9. Another way of looking at the case is to read Clause (a) of Section 60 as merely reproducing the corresponding English common law on the subject. If you refer to cases such as Wood v. Leadbitter (1845) 13 M. & W. 838 you find the distinction made in English law rests on whether the license is merely a simple license, or whether it is connected with a grant; and a familiar instance is that of a license being given to a man not only to hunt but to take away the deer, when killed, to his own use. That is said to be a license coupled with a grant. There are also other cases where there has been practically a grant of what are called profits a prendre, in which the license is held to be irrevocable. From this point of view the license in this case is not merely one to go upon the defendants' land to the well, but is coupled with a right to take water out of the well. That is a grant or transfer of property under the wide language used in Section 60 of the Indian Easements Act and the corresponding English law. Consequently, I think there is ample authority for saying that this particular license should be treated as an irrevocable one. On the other hand, under Section 56 it is not transferable. In my opinion, it is a personal right granted merely to Ramchandra and Gopal, though I would not go so far as to say that it is a license which cannot be exercised by their servants or agents. The words 'save as aforesaid' in the second part of Section 56 of the Indian Easements Act bring in the words 'unless a different intention is expressed or necessarily implied'; and having regard to the nature of the license, namely, a right to go and take water from the well, which would ordinarily be done, if so desired, by servants or agents, I think it must be taken that there is an implied intention in the grant that the right could, to a reasonable extent, be exercised by servants or agents.
10. This view is a middle course between the two extremes of that of the Subordinate Judge and that of the District Judge. In my opinion, it satisfies the equities of the case sufficiently. On the one hand, the plaintiffs will not be able to transfer the right as an easement if they happen to sell the house No. 201. On the other hand, they will still retain the right as a personal right, even if they remove from house No. 201 to some other neighbouring house.
11. As regards the question of obstruction by the wall erected by the defendants, it might no doubt not be a real obstruction, if the plaintiffs have full use of the door-way in this wall, or when that door is closed have other means of access to this well. But, as the District Judge points out, there are no sufficient materials on the record to decide whether the wall is such an obstruction that a mandatory injunction with regard to it should issue, or some other proper relief be granted. Therefore, the order remanding the case back to the lower Court for disposal according to law does not seem to me to require our interference, though it would be more satisfactory for the two brothers to come to some arrangement and so obviate further litigation.
12. I would, therefore, confirm the order of the lower Court, subject to the above remarks, and in the circumstances, as neither aide has wholly succeeded, I would direct that each party should bear his own costs in appeal, The order as to costs in the lower Court should stand.
13. I concur in the conclusion arrived at by my learned brother. In substance it is really a question of the construction of the clause in the partition deed, which has been quoted in the judgment of the trial Court. That question to my mind is not free from difficulty. It is quite possible that it was intended that the plaintiffs, that is, Ramchandra and Gopal, should have the same use of the water of this well which they used to have before the partition in virtue of their ownership and occupation of the house No. 201. But it is also clear that this clause is put in at the end of the partition deed, and it is also expressly stated that though as a matter of right the well has been exclusively assigned to the share of the defendants, it is out of brotherly affection that the right to use the water of the well is allowed to the plaintiffs. It would not be fair to hold on the construction of this clause that the right was really attached to the ownership of house No. 201 under the terms of the document. If it cannot be read under the circumstances as a right attaching to the ownership of house No. 201, the next alternative is really to treat it as a license, and then the question would be whether it is revocable or not. Apart from its being called a license, it seems to me in substance that the defendants intended to give to the plaintiffs the right to take the water of the well, though the reason for granting it was brotherly affection. On that ground they were prepared to concede that right in favour of the plaintiffs. As it is coupled really with the transfer of property in which this well is situated in the sense that by the same deed the house No. 197 has been assigned to the share of the defendants including the well as a part of that house and its appurtenances, it is with reference to the transfer effected of this property in favour of the defendants that this particular right to take the water of the well has been reserved in favour of the plaintiffs. Though it is not clear that this particular right was given to the plaintiffs as owners of house No. 201, it is fairly clear that it was coupled with a transfer of the property. That transfer is in force, and the plaintiffs have a right to use the water of the well. As pointed out by my learned brother, having regard to the nature of the right, it must be taken to be necessarily implied that the right can be exercised not only by the plaintiffs personally but by their servants and agents. That being the nature of their right the relief suitable to that right will have to be determined as indicated in the judgment of my learned brother.