Charles Arnold White, C.J.
1. In this case the plaintiff claimed among other things that he was entitled as owner of a house which we will call No. 67 to the use of a passage to a latrine Kris in his house the passage in question forming part of a house which we will call No. 11 - the property of the defendant. The two houses are practically adjacent. The learned Judge granted him this declaration. The Judge was of opinion that he was not entitled to the right which he claimed under Section 13 of the Easements Act or on the ground that it amounted to an easement of necessity. But on a construction of the sale deed in favour of the plaintiff the Judge held that the words of the conveyance were wide enough to pass by express grant the right over the defendant's passage. Now before considering the law it is desirable to state the precise findings with reference to this passage and the use of it. The learned judge found on the evidence that the plaintiff's scavenger always 'entered the latrine of the plaintiff's house through the passage which now forms part of the house of the defendant. On the question of ownership of the properties, he found that one Narasimhulu Naidu was the owner of the two houses till the 23rd January 1893, that on that date the plaintiff's house passed to Canthum and Co., and that both the properties again became subject to the same ownership on the 17th August 1894 when the defendant's house was sold to Canthum and Co., who had already purchased the house No, 67. It comes to this, according to the finding, that there was unity of possession in one owner of the two houses till January 1893, and severance between January 1893 to August 1894, and there was again unity of possession in one owner in August 1893. Now, this owner who had unity of possession became an insolvent, and the Official Assignee sold the two houses by auction on the 22nd April 1910. At the auction sale, the plaintiff bought No. 67 and the defendant bought No. 11, As regards the order in which the properties were sold we are told that the plaintiff bought before the defendant. Formal conveyances were given by the Official Assignee. The defendant got his sale deed on 3rd August 1910 and the plaintiff got his sale deed on the 2lst September 1910.
2. For the purposes of the question we have to decide it seems to me immaterial that house No. 67 was knocked down first at the sale by auction whilst the formal conveyance to the defendant was prior in time to the formal conveyance to the plaintiff because I think for the purposes of the question we have to decide we must take it that the transaction was one and that we must deal with the case a on the footing that the two conveyances were simultaneous, 'the law is stated in Mr. Peacock's book page 385, 'It is now settled law that when on a disposition of property belonging to the same owner the severed tenements are conveyed either simultaneously or different times but as part of one transaction quasi-easements apparent and continuous and necessary for the enjoyment of the severed tenement as they were enjoyed at the time of severance will pass by presumption of law to the grantees thereof. In either case the' conveyances are regarded in equity as one transaction and each grantee who takes his tenement with the knowledge that the other tenements are being conveyed at the same time or will be conveyed as part of the same transaction is deemed in the absence of express stipulation to take the land burdened or benefited as the case' may be by the qualities which the previous owner had a right to attach to different portions of his property before severance.' Then later on, on page 387 he says 'It is important to note that the rule applies not only in the case of simultaneous conveyances as in Allen v. Taylor (1880) L.R. 16 Ch.D. 355 but also in the case of conveyances executed at different times but as part and parcel of the same transaction. In such cases the conveyances are founded upon transactions which in contemplation of equity are equivalent to conveyances between the parties at the time the transactions were entered into, such transactions being entered into at the same moment of time and as part and parcel of one transaction. On behalf of the appellant it was contended that the right which the plaintiff claims in this case is not a quasi-easement apparent and continuous. It seems to me it is a quasi-easement. Whether it is a quasi-easement apparent and continuous, I do not think it is necessary to consider, because I think the principle laid down there with regard to quasi-easements apparent and continuous is applicable to the right which the plaintiff claims in this case.
3. With regard to this question of one transaction, I may refer to the terms of the conveyances. Both the conveyances recite the sale by the Official Assignee was under an order of Court, and both the conveyances, I think I am right in saying - certainly the conveyance to the plaintiff - recite the sale at Court auction to the vendees in pursuance of which a formal deed of conveyance was afterwards executed. Now, turning to the words of the conveyance itself, what the sale-deed to the plaintiff purports to convey is 'all his rights, title, interest and claim whatsoever and of the said adjudicated insolvents and of the said mortgagee in and to the said house and ground No. 67, Govindappa Naick Street, Pen Peddunaickenpettah, Madras more further described in the schedule hereunder written together with all the buildings, fixtures, rights, easements, advantages and appurtenances whatsoever to the said house and ground appertaining or with the same held and appurtaining or with the same held and enjoyed or reputed as part thereof or appurtenant thereto.' There is no express reference to any right of way. It seems to me that on the authority of the case Chunder Coomar Mookerji v. Koylesh Chunder Sett I.L.R. (1881) C.665 we ought to construe this conveyance to the plaintiff as wide enough to carry the right to use this particular passage for the purpose of obtaining access to the plaintiff's latrine. The words are 'appurtenances whatsoever to the said house and appertaining or with the same held and enjoyed or reputed as part thereof or appurtenant thereto.' Words, very similar if not identical, were before the Court in the case Chunder Coomar Mookerjee v. Koylesh Chunder SettI.L.R. (1881) C.665. Mr. Justice Wilson (page 670) in dealing with the law, says, 'about the law applicable to this question, there is, I think, no doubt. The words appurtenant or 'belonging' will ordinarily carry only actually existing easements, and therefore will carry no right over the land of the grantor.' Later on, he says, 'where further words are used, such as those in this deed, 'therewith held or used,'' - and we have these words in the deed before us, 'with the same held and enjoyed' - 'the case is different. Those words will carry a way formerly enjoyed as an easement, but is to which the right has been suspended by unity of possession : On the other land, such words will not carry a way made by the owner of both properties during the unity of possession for his own greater convenience in the use of the two properties jointly. Where again during the unity of possession, a way, which has never existed as an easement is in fact used for the convenience of one of the tenements afterwards severed, the authorities show that the words in question are large enough to carry it.' I should be disposed to hold that the present case comes within the first proposition, 'those words will carry a way formerly enjoyed as an easement, but as to which the right has been suspended by unity of possession.' Whether this is so or not, I have very little doubt that the present case falls within the third proposition, 'where again, during the unity of possession, a way, which has never existed as an easement, is in fact used for the convenience of one of the tenements afterwards severed, the authorities show that the words in question are large enough to carry it.' Here, we have the finding that the particular way has always been used as the means of access to the plaintiff's latrine, the inference from that finding is that, during the unity of possession, the way had in fact been used for the convenience of tenement No. 67 which was afterwards severed from tenement No. 11. On behalf of the appellant, it has been pointed out that there is express reference in the instrument which was being considered by Mr. Justice Wilson to 'ways, paths, passages etc.,' and that there is no such reference in the deed before us. That is, no doubt, perfectly true. But, notwithstanding that, it seems to me that the words 'appertaining or with the same held and enjoyed or reputed as part thereof or appurtenant thereto,' are sufficiently wide, as the learned Judge held, to carry the right in question. In connection with this point, I may refer to the decision in Bayley v. Great Western Railway Co. (1884) 26 Ch. D. 434. There, there was a conveyance to the vendee of all the rights of the vendor at the time the conveyance was executed. All that was conveyed was a house. In that case, 'the vendor had many years previously made a private road from the highway to the stable over his own land for his own convenience and had Used it ever since. The soil of this road was not conveyed to the company and no express mention of it was made in the conveyance. It was held that, notwithstanding the unity of possession of the stables and the private road at the date of the conveyance to the company, a right of way passed to the company, under the general words in the conveyance'. Other authorities have been cited to us, but I do not propose to discuss them, as it seems to me that this case falls within the principle of the decision reported in Chunder Coomar Mukerji v. Koylash Chunder Sett I.L.R. (1881) C. 665 and the view of the City Civil Court Judge that the words of the grant were wide enough to pass this particular right is right. I think that the appeal fails and should be dismissed with costs.
1. On the 22nd April 1910 the Official Assignee sold by public auction the properties now owned by the respondent and the appellant respectively. The conveyance to the appellant is dated the 3rd August 1910 and the conveyance to the respondent is dated the 21st September 1910. In the first of the two conveyances, i.e., to the appellant, there is no reservation by the Official Assignee of any such right of way or passage as is claimed by, the respondent, and we have to decide whether, in the words of the Earl of Selborne in Russel v. Watts (1885) 10 A.C. 590, the respondent in this case has the right to 'insist that the appellant cannot consistently with the terms and good faith of the contract under which he derives his title' obstruct the respondent from using the passage in question. The case to which I have alluded shows that such rights may arise though there may be no express reference to them in the conveyance, and the question is whether the facts in the present appeal come under the principle laid down or implied in this case. They clearly cannot come under the principle unless we come to the conclusion that the two conveyances in this case form part of one transaction. I agree with the learned Chief Justice that there are sufficient reasons for our holding that these two conveyances did form part of one transaction.
2. Assuming that the two conveyances are to be taken as forming one transaction, I agree with the learned Chief Justice that, under certain circumstances such as exist in the present case, we should be justified in holding that the conveyance to the appellant must be read with such reservations as to entitle the grantor, i.e., the Official Assignee, to pass to the respondent the right in question, and to burden the appellant with the correspondent duties, notwithstanding that such reservations may not have been expressly contained in the conveyance to the appellant. The principle of law governing such cases, I understand to be that where the same grantor conveys in the course of one transaction portions of his property to several grantees, it is equitable under certain circumstances to presume that it was intended that each grantee should take the property conveyed to him subject to such rights as are created in favour of the other grantees, and that each grantee knew that it was so intended and consequently that the grant to him must be read with such reservations. The principle must, of course, be applied with great caution. Nothing could more strikingly illustrate this than the difference of views in Russell v. Watts (1883) 25 Ch. D. 434. That case, it must be observed, was concerned with the obstruction of windows, and it is clear that the easement of light and air stands on a somewhat different footing from that of a right of way. But when a reference is made to the remarks by Mr. Justice Chitty in Bayley v. Great Western Railway Co. (1885) 10 A.C. 590 and to the remarks of Sir Charles Sargent C.J. in Esubai v. Damodar Ishvardas I.L.R. (1892) B. 552 the latter of which were alluded to by the learned Judge in the 10th paragraph of his judgment, I think it will be found that the principle to which I have referred above may be applicable also where the disputes are of the nature that we have to deal with in this case.
3. It remains to decide whether, assuming that the two convey ances formed part of one transaction and that the said principle is applicable to the present case, the terms in which the conveyance to the respondent is couched are such as to give him any right to this passage. The clause in the conveyance so far as material is as follows: 'All rights, easements, advantages and appurtenances whatsoever...appertaining to or with the same held or enjoyed or reputed as part thereof or appurtenant thereto.' Now, on the authority of the cases referred to by the learned Chief Justice, I think we should be justified in holding that the right of passage in question falls within the description of 'rights, easements, advantages and appurtenances.' The cases decided in England, such as the decision of Mr Justice Chitty in Bayley v. Great Western Railway Co. (1885) 10 A.C. 590 show the wide meaning given to such words as 'rights'. We have here, in addition, the word 'advantages.' Again, the cases referred to by Mr. Justice Wilson in Chunder Goomar Mookerji v. Koylash Chunder Sett I.L.R. (1881) C. 665 show the meaning to be given to such expressions as 'appurtenant to,' 'enjoyment of or' being reputed as forming part of in deciding what easements or other rights are to be taken as having been granted under a conveyance which contains them. It seems to me, therefore, that, both when we consider the class of rights that are referred, to in the conveyance in the descriptive part of the clause, and when we refer to the manner, in which those rights are annexed to the premises, we have words sufficiently wide to pass the right of passage involved in this appeal. I therefore agree that this appeal should be dismissed with costs.
Judgment in Memorandum of Objections.
1. As regards the drain the Judge said he was not satisfied that it existed before the purchase by the plaintiff. It is true, there was no cross examination of the plaintiff's next friend with regard to this, and there is no specific denial of the allegation in the plaint with reference thereto; but the written statement states that the defendant does not admit any of the allegations not expressly admitted. We are not satisfied the Judge was wrong as to this. Also we are not satisfied he was wrong as regards the water pipe.
2. The Memorandum of objections is dismissed with costs.