1. The facts of the case out of which this appeal has arisen are these:
2. The parties are neighbours, their houses adjoining. The defendant appellant's house lies north of that of the plaintiff-respondent. In the year 1896 the latter building was the property of a person from whom the plaintiff has subsequently purchased. Both houses then were single-storied buildings. The northern boundary of the southern house was the south wall of the northern house. Between this wall and the actual building of the southern house was an open bit of land, forming a courtyard of the latter. On this bit of land two water-spouts discharged the rain water which fell upon the roof of the defendant's house.
3. The plaintiff's vendor wished to extend his building up to the wall of his neighbour and to support the roof of the extension by fixing his beams into the defendant's wall, He appears to have approached his neighbour and they came to an agreement evidenced by the document of 10th March, 1896. The document was not registered. The defendant acquiesced in the request in return for a consideration which was that the water from his spouts should continue to discharge the rain water on the roof of the extension and if in the future he should build a second storey to his house he should also be allowed to discharge the extra water used daily for household purposes in that storey through the two spouts on to the roof of the extension.
4. To this the plaintiff's vendor agreed. The material part of the agreement has been translated in the judgment of the first appellate court as follows and this may be taken to be correct:
Inasmuch as there is a masonry wall and from that wall two spouts have always discharged into my house and as I desire to place the beams of my house on the aforesaid wall, etc., and I shall take and carry away the water of the two spouts on the roof of my house and whenever the aforesaid owner shall build a second storey on his house and shall arrange to discharge his daily water, I shall bear the burden of that too and the arrangement for the carrying away of that water shall be upon me, I shall never object to this, etc.
5. The extension of the house was carried out: subsequently the plaintiff made his purchase.
6. The defendant began to build a second storey, upon which the plaintiff brought a suit to restrain him claiming the party wall as his own property. Pending the trial, the defendant completed the upper storey and began to discharge his 'daily water' through the two spouts as agreed. He further put a third spout on the top of the second storey which discharged its rain water on the plaintiff's roof. On this the latter brought the present suit to restrain the defendant from thus discharging the water through the three spouts.
7. In the course of the trial the parties come to terms in regard to the spout on the roof of the second storey and the bone of contention remaining was the discharge of the water used for daily household purposes through the two original spouts.
8. In respect to these the Munsif held that the deed of 10th March, 1896, evidenced the grant of a license under Section 53, Act No. V of 1882 (Easements Act) and that therefore the plaintiff as the transferee of the grantor was not as such bound by the license. (Section 59, Easements Act). In this view he granted to the plaintiff a decree in terms of the compromise in respect to the one spout; and an injunction restraining the defendant from discharging anything but rain water, through the two old spouts.
9. On appeal, the Additional District Judge held that there was *no grant of a license; that prior to the extension of the southern house, the court-yard thereof was the defendant's 'abchak', and he had a right to discharge thereon all kinds of water, except such as was injurious to health, and that when the two owners executed the agreement, the language thereof amounted only to an admission of the defendant's pre-existing right and an agreement by the owner of the servient tenement to respect it. In his opinion no new right had been granted as there was a pre-existing one. In this view he admitted the appeal and dismissed the suit in too, overlooking the fact that part of the Munsif's decree was based upon compromise.
10. The plaintiff preferred a second appeal to this Court. The error of the Additional District Judge was admitted by both sides. The learned Judge who heard the appeal held (1) that the language of the agreement could not be regarded as the admission of a pre-existing right of easement; (2) that it might possibly be construed as the grant of a license under Section 53, Act V of 1882, in which case the transferee of the grantor was not bound thereby in view of the terms of Section 59(3) of the Act; but that in his opinion the agreement of 10th March, 1906, was the transfer of an easement, an intangible thing within the meaning of Section 54 of the Transfer of Property Act (IV of 1882) and in order to be operative required registration, and (4) that the document being unregistered was inoperative. He accordingly restored the decree of the court of first instance.
11. The defendant has preferred this appeal under the Letters Patent in regard to the part of the decree restraining him from discharging any but rain water through the two spouts in question. That part of the decree based on the compromise is not attacked. The contentions raked on behalf of the appellant are: (1) that the learned judge of this Court was wrong in decreeing the claim on a ground which was not raised in the courts below:
(2) that Section 54 of Act IV of 1882 does not apply to the facts;
(3) That there is nothing in law which prevents the creation of an easement by means of an unregistered document.
12. The argument is that the document now in question evidences, not the transfer of an easement, but the creation of that right: that prior to the passing of Acts IV and V of 1882, the law did not require the express imposition of an easement to be evidenced by writing at all; vide Krishna v. Rayappa Shanbhaga (1868) 4 Mad. H.C. Rep. 98: that Act V of 1882 made no change in the law in this respect: that Section 54, Act IV of 1882, related to the transfer of an easement, and not to the creation thereof. Attention is called to Section 6, Clause (c) of that Act, which shows that an easement cannot be transferred apart from the dominant heritage and that the Act contemplates the transfer of a pre-existing easement and not the creation of a new one. In my opinion these arguments are well-founded.
13. On behalf of the respondent it is urged (1) that the document of 10th March, 1896 evidences the grant of a license and not the creation of an easement: (2) that if it creates an easement, then it is the transfer by the owner of the servient tenement of one of that bundle of rights which go to constitute the full right of ownership, i.e., it transferred a part of his right of ownership as contemplated in Section 54, Act IV of 1882, and this being an 'intangible thing' as contemplated in the second clause of that section, can only be transferred by registered instrument. As regards the document of 10th March 1896, I agree with the learned Judge of this Court who heard the appeal that this is not the case of a license.
14. By the document, the respondent's vendor agreed that when the appellant built his second storey he (appellant) should have the right to discharge, not only rain-water but also the water used for daily household purposes, through the spouts in question, and that he would take this additional burden upon his, the servient tenement, What was granted was a right, which the defendant as owner of his house was to possess as such, for the beneficial enjoyment of that house, to discharge and continue to discharge his daily household water through the spouts in question, upon the roof of his neighbour's house which was not his own property. This most clearly falls within the definition of an easement set forth in Section 4 of the Act. The right granted was one for the benefit of an heritage and could be exercised only in the interests of that heritage and to supply its wants. It has been imposed on a thing, to wit, the respondent's house, and not on its owner. All these characteristics of an easement are present in this case now before us.
15. A license is the grant of a right to do in or upon the grantor's immovable property something which would, in the absence of that right, be unlawful, 'such right not amounting to an easement.' In the present case it does amount to au easement. In regard to the second portion of the argument put forward by the learned advocate for the respondent, I cannot agree that the plaintiff's vendor by the deed of 10th March, 1896, transferred any portion of his right of ownership as contemplated in Section 54 of Act V of 1882.
16. Prior to the execution of the deed, he had the right to prevent the discharge by the appellant of the soiled water upon his tenement, as that would have been an invasion of his right. He did not transfer this light to the defendant. He relinquished it, and it then ceased to exist pro tempore. It was not that right which arose in the defendant but a totally opposite right, one hostile to the right which till then had reposed in the plaintiff's' vendor. The one right came into existence when the other came to an end. A fresh burden was imposed on the servient tenement, the owner of which lost one of his rights; but he did not transfer the right so lost to the owner-of the dominant tenement. The right lost was one which might possibly revive in the future. It seems clear to me that the creation of a right of easement by grant is not such a transfer of ownership as is contemplated by Section 54 of the Act. Where under that section an easement is transferred, it must be so transferred along with the dominant heritage. There is no other way of transferring it and this arises by reason of the nature of the right. It exists only for the benefit of the heritage and to supply its wants. There is nothing in law which necessitates the creation of an easement being evidenced by writing. Prior to the enactment of Act V of 1882, this was clearly held to be the law by the Madras High Court in the ruling quoted. If the Legislature had thought it necessary to alter the law and adopt the rule of English Law which was different, it is hard to believe that it would not have made the charge in specific language. I can nowhere find any' such language in either Act IV or Act VI of 1882. The=e two Acts were passed together, receiving the assent of the Governor-General on 17th February, 1882. Dr. Whitley Stokes drew* the bill which became the Easements Act and was concerned with the passing of both bills.
17. In his Anglo-Indian Codes, in the introduction to Act V of 1832, he says at page 882: 'The Act (here following a decision of the Madras High Court and deviating from English Law) does not require the express imposition of an easement to be evidenced by writing.' On page 879 he points out that the Act was mainly based on English Law which had in many cases been held to regulate the subject in India, but a few deviations (thereinafter specified) had been made.
18. One of the deviations specified by him is that pointed out on page 882. The learned Judge of this Court has based his finding on certain remarks by Mitchell in his Commentary on the Act (2nd edition, page 46). Where he observes that 'by the Law of India wherever the Transfer of Property Act applies, the grant of an easement by way of sale must be made by a registered instrument; an easement being au intangible thing and if made by way of gift must also be by a registered instrument signed by or on behalf of the grantor and witnessed by at least two witnesses.' The author has shown no authority for his exposition of the law, and for the reasons I have stated I cannot agree with this. Peacock in his Tagore Law Lectures on the subject (edition of 1904, page 264) lays down the contrary. 'In India,' he says 'there does not appear to be any law requiring the express grant of an easement, as referring to the actual creation of the right, to be in writing.' Unfortunately he does not discuss the subject at length. But he agrees on the point with Dr. Whitley Stokes, and in my opinion their expositions of the law are correct. In this view of the law, I would allow the appeal and set aside the decree of this Court in so far as it relates to the discharge by the appellant of water used for daily household purposes through the spouts in question.
19. I entirely agree with my learned colleague, but as we are differing from a learned Judge of this Court, I wish to state briefly the reasons which have induced me to come to the conclusion at which we have arrived.
20. It is clear that the document of the 10th of March 1896, does not grant a license but imposes an easement. The question is whether an easement can be imposed otherwise than by an instrument in writing registered? There is no provision in the Indian Easements Act (No. V of 1882), which requires that the grant of an easement should be by a registered written instrument. Before the enactment of that Act and of Act No. IV of 1882, it was not necessary that the imposition of an easement should be evidenced by a written instrument; see Krishna v. Rayappa Shanbhaga (1886) 4 Mad. H.C. Rekp. 98. Have those Acts introduced any alteration in the law in this respect? The learned Judge of this Court from whose judgment this appeal has been preferred under the Letters Patent, seems to think that Section 54 of the Transfer of Property Act applies to the case of the creation of an easement by express grant. He says: The agreement of 10th of March 1896,
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