Venkatasubba Rao, J.
1. Venkataramana Rao, J., has held that the defendants are entitled to have so much of the branches of the tamarind tree cut off as project over their land. The plaintiff attacks this decision and his counsel has argued the appeal mainly as if the question involved were one of easement. That if the plaintiff's case rested on an easement right, it should fail, there can be no doubt. As the learned Judge rightly points out relying on Lemmon v. Webb (1895) A.C. 1 no right of easement can be acquired in respect of a tree which gradually projects over the neighbour's land insensibly and by slow degrees. It is important in this case to ascertain the facts precisely in order to understand the correct principle applicable. Arguments based on a supposed easement right were advanced before us as before the learned Judge and this has imported considerable confusion into the case. A careful analysis of the facts will show -that totally different considerations apply. We are concerned with three plots, namely, 333, 338/2 and 338/1, which all belonged to a Hindu joint family. 338/2 adjoins, on the south, plot 333 and is contiguous to it; 338/1 is to the east of 338/2. At a family partition 333 and 338/2 (the two contiguous plots) fell to the defendants and 338/1 fell to the share of their coparcener Palani. On 338/2 was standing the tamarind tree, which has given rise to the present dispute. Although the right of Palani to the plot 338/2 was extinguished by the partition, a right was conferred upon him by its terms to a half share in the tree on that plot. In 1925, that is, subsequent to the partition, by Ex. A, Palani conveyed to the plaintiff (Arumugha) 338/1 together with his right to a moiety of the tree. In 1927 the defendants conveyed 338/2 to the plaintiff, including likewise that half interest in the tree in question. Thus it will be seen first that the plaintiff became the owner of 338/2, while the defendants continued to own the contiguous plot 333 and secondly that the plaintiff became the full owner of the tamarind tree in the plot 338/2.
2. Venkataramana Rao, J., after stating that the encroachment of the boughs would be a nuisance, asks, has the right to commit the nuisance been granted? The right to overhang the branches is analogous to preservation of the prospect, and the learned Judge points out that in both these cases, the burden would be imposed over a vague, indefinite and possibly an extensive area. So the question is, was the right granted to the plaintiff either expressly or by necessary implication? It is the previous unity of title and its subsequent severance that has given rise to the question in its present form; otherwise the matter would be free from all difficulty. The law undoubtedly is, that the owner of a tree has no right to prevent a person lawfully in possession of land, into or over which, its roots or branches have grown, from cutting away so much of them as project into or over his land per Lindley, L.J., in Lemmon v. Webb (1894) 3 Ch. 1 . But here the question is, do the facts already mentioned lead or not to the necessary inference that the right to project the branches has been conferred? From the very beginning the tamarind tree played an important part. First, let us take the partition. Palani was allotted a plot away from the one where the tamarind tree stood, but still he was given a half right in the tree. Secondly, when Palani sold his land 338/1 to the plaintiff, his half share to the tree was specifically conveyed. And thirdly when the plaintiff purchased from the defendants 338/2, their half right in the tree was likewise expressly mentioned and conveyed. What we here have is not a mere transfer of land, which, in law would carry with it the transfer of the tree whether mentioned or not; more than, that, the tree itself has been made the subject of the sale; this is of vital importance. Nor was this tree at the time of the sale a tiny plant or a sapling; it was, as the learned District Judge points out, an ancient tree about 100 years old, whose growth has practically ceased. It cannot be reasonably suggested that there has since been any additional burden imposed by the growing of the tree. It seems to us that the finding of the District Judge that by the common intention of the parties the right to project the boughs was transferred, ought not to have been disturbed. That the grantor shall not derogate from his grant, is a settled maxim. To allow the defendants to cut off the branches would be to violate the maxim. Venkataramana Rao, J., observes that if the plaintiff intended to have the right he claims, that should have been specially provided for in the sale deed. But on the contrary, the true position on the facts is, that had the defendants intended to reserve themselves the right to lop off the projecting branches, they should have expressly reserved it (see by way of analogy the passage in Halsbury's Laws of England, New Edition, Vol. XI, Section 524 which is based on Wheeldon v. Burrows (1879) 12 Ch. D. 31 and which has been cited by Sankey, L.J., in Aldridge v. Wright (1929) 2 K.B. 117 . We therefore think that the learned District Judge whose judgment has been reversed is right.
3. Venkataramana Rao, J., has held that the plaintiff has a right to enter (a right we presume, to be reasonably exercised) on the defendants' land for removing the produce so long as the branches are allowed to project. So also the learned Judge has, by restoring the Munsif's judgment, awarded to the plaintiff Rs. 10 as damages for the produce appropriated by the defendants from the projecting branches. The correctness of these orders has not been questioned.
4. In the result, the judgment of the District Judge is restored in toto, and as to the costs incurred by the plaintiff in the High Court, the defendants will pay them. The costs are awarded in one only of the two appeals before us.