1. One Sukhdei got a decree for a portion of certain buildings and the rest was given to Kidarnath. It is admitted that the buildings before partition belonged to one owner and that the decree reserved no easement of way in favour of Kidarnath.
2. Sukhdei, in execution of the decree, applied for the possession of the share allotted to her. Kidarnath objected that he had the easement of way over the doorway in question. The Court below granted the easement claimed by him. Sukhdei appealed to this Court and her learned Advocate contended that the Court below, as an Executing Court, could not grant an easement which had not been awarded by the decree. We, by our order dated the 11th of July 1910, remitted the following issue to the Court below for trial: Is the doorway, over which the lower Court has granted the right of passage, the only means of egress and ingress to the defendant's property
3. The findings of the Court are to the effect that a door can be opened on the north in Kidarnath's share but that it will not be convenient, inasmuch as the utility of the house will be very much reduced and that excepting the doorway in question, there is no other possible and convenient means of egress and ingress to the share of Kidarnath, The learned Advocate of Sukhdei urges that, the findings fail to establish an easement of necessity which is founded upon absolute necessity and not upon a more convenient use of the dominant tenement. This contention of the learned Advocate, in our opinion, is sound.
4. The English Law on the subject is that an easement of necessity arises only when it is absolutely necessary and not when it is necessary to the reasonable enjoyment of the dominant tenement.
5. The leading case on the point before us is Wheeldon v. Burrows (1879) 12 Ch. D. 81 : 48 L.J. Ch. 853 : 41 L.T. 327 : 28 W.R. 196 and was followed in Union Lighterage Company v. London Orating Dock Company (1902) 2 Ch. D. 557 : 71 L.J. Ch. 791 : 87 L.T. 381 in which at page 573 we find the following passage: 'In my opinion an easement of necessity, such as is referred to, means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property.' The cases of Wheeldon (1879) 12 Ch. D. 81 : 48 L.J. Ch. 853 : 41 L.T. 327 : 28 W.R. 196 and Union Lighterage Company (1902) 2 Ch. D. 557 : 71 L.J. Ch. 791 : 87 L.T. 381 are referred to in Ray v. Hazeldine (1904) 2 Ch. D. 17 : 73 L.J. Ch. 537 : 90 L.T. 703 and as the judgment of Kekewich, J, is highly instructive I quote the following portion therefrom: If a vendor of land desires to reserve any rights in the nature of an easement for the benefit of his adjacent land which he is not parting with, he must do it by express words in the deed of conveyance. That is settled law, and expresses the result of the decision in Wheeldon v. Burrows (1879) 12 Ch. D. 81 : 48 L.J. Ch. 853 : 41 L.T. 327 : 28 W.R. 196 where the Court of Appeal affirmed the decision of Bacon, V.C. That is the general rule, but the rule is subject to certain exceptions. One of them is the well-known exception of an easement of necessity, that is to say, where the enjoyment of the alleged right over the adjoining land is necessary to the property which is not conveyed, then (he Court will consider the easement as impliedly reserved, though it has rot been reserved by express words. Such easement, or right in the character of an easement, may be a right to the access of light to a particular window. In a large majority, a window which lights a room, is deemed necessary to the lighting of that room and is, on the whole, essential to the comfortable enjoyment of that room, but it does not follow that the right to access of light is an easement of necessity. Where are you to draw the line? Suppose (he blocking up of the window largely interferes with the comfort and enjoyment of the room, is the grantee of (he adjacent land entitled to block it up or does the exception stand? It seems to me that the line to be drawn is pointed by Sterling, L.J. in Union Lighterage Company v. London Graving Dock Company (1902) 2 Ch. D. 557 : 71 L.J. Ch. 791 : 87 L.T. 381. His Lordship makes a distinction between an easement of necessity and an easement necessary to the reasonable enjoyment of property. After referring to the two rules laid dawn in Wheeldon v. Burrows (1879) 12 Ch. D. 81 : 48 L.J. Ch. 853 : 41 L.T. 327 : 28 W.R. 196 and the exceptions thereto he says: 'The appellants did not dispute that there is no express reservation in the conveyance to the plaintiffs, but they contended that the easement claimed by the defendants is an 'easement of necessity' within the recognised exception to the second rule. Now, in the passages cited, the expressions 'way of necessity' and 'easement of necessity' are used in contrast with the other expressions, 'easements' which are necessary to the reasonable enjoyment of the property granted, and 'easements'...necessary to the reasonable enjoyment of the property conveyed, and the word 'necessity' in the former expressions has plainly a narrower meaning than the word 'necessary' in the latter. In my opinion an easement of necessity such as is referred to means an easement without which the property retained cannot be used at all and not one merely necessary to the reasonable enjoyment of the property.' Then, after pointing out that the light in Wheeldon v. Burrows (1879) 12 Ch. D. 81 : 48 L.J. Ch. 853 : 41 L.T. 327 : 28 W.R. 196 were reasonably necessary to the enjoyment of the workshop, he says: So here it may be that the tie-rods which pass through the plaintiffs' properly are reasonably necessary to the enjoyment* of the defendants' dock in i(s present condition but the dock is capable of use without them, and I think that there cannot be implied any reservation in respect of them. That seems to me to draw the distinction between what is absolutely necessary and what is reasonably required for the enjoyment of the land or building as it stands. In my judgment this is a window to which the access of light cannot be reserved by implication upon the ground that the light is necessary to the pantry. It cannot be that there is any necessity by reason of its being used as a pantry, since it can be used for some other purposes. It cannot be said that a special use of light attaches to it as a pantry, and to say, as the defendant does, that the access of light to the window is reserved to him by necessity is giving to the word 'necessity' a meaning which it does not bear in this connection.' '
6. The reason of the law that there must be absolute necessity is very well stated by Goddard. He says, 'ln support of this view, the name by which they are known easements of necessity points to the fact that there must be absolute necessity before the law will compel a land-owner to submit to so detrimental a right as an easement in his land a right in reality though not in theory imposed on his land against his will. It must be borne in mind how detrimental generally it is to an estate to be burdened with an easement, what nuisance it is to an owner of land to have another person walking at his pleasure over a field, or digging through the surface, or erecting a steam engine thereon and how such rights may prevent building on land or using it in many of the ways the owner may desire'...pp. 38, 39, 6th edition.
7. The above rule of the English Law, so far as partition of land is concerned, is enacted in the following portion of Section 13 of the Indian Easements Act (Act No. V of 1882) Where a partition is made of the joint property of several persons, (e) If an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement.' The easements mentioned in this section, Clauses (a), (c) and (e), are called easements of necessity,' It may be noted here that the Indian Easements Act was extended to these provinces by Act VIII of 1891 on the 6th March 1891 and the case is governed by the Indian Easements Act.
8. Reading the findings of the Court below in the light of the provisions of Section 13 as to easements of necessity we hold that Kidarnath failed to prove facts which would entitle him to the right of way claimed, inasmuch as the user of that right is not absolutely necessary for the benefit of his share of the house. He certainly can open a door to wards the north for access to his share. It is contended by his learned Advocate that with reference to the existing state of the building and without any alteration therein the use of the doorway in question for access to his share of the building is absolute necessity. There is, however, no authority to favour the contention and] the share cannot be deemed to be absolutely useless without the right of way claimed.
9. For the above reasons we allow the appeal, set aside the decree of the Court below and disallow the objection of Kidarnath with costs.