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Musunoori Satyanarayana Murti Vs. Chekka Lakshmayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad79
AppellantMusunoori Satyanarayana Murti
RespondentChekka Lakshmayya and ors.
Cases ReferredSital Chandra v. Allen J.
Excerpt:
- - 612 and i cannot do better than refer to the exposition of the law on this point contained in that judgment in answer to the appellant's arguments......plaintiff's lands. plaintiffs' claim to discharge the water through the channel is based upon an easement right granted to plaintiff 1 under ex. e by the defendant's father. ex e dated 30th july 1911 is a letter written by the defendant's father, dikshithalu, to plaintiff 1. it runs as follows:you wanted a bodi for flowing freely the surplus water through the land along eastern bund of re survey inam no. 187 owned by us in pedavarthi village. having given a bodi to you in the said manner, i wanted you to give me at a future time a bodi to my land 187 through your land 75 in case i dig the earth from my land and lower the level of the same and you consented to the same. on this understanding i allow a bodi through my land.2. the defendant contended (1) that ex. e is inadmissible in.....
Judgment:

Madhavan Nair, J.

1. The facts necessary for the decision of this second appeal may be briefly stated as follows:

The defendant is the appellant. Plaintiffs sued the defendant to establish their right to let out drainage water along the bodi (drainage channel) marked CC-1, in the plaint and for the issue of an injunction restraining the defendant from obstructing the plaintiffs in repairing the said channel. The drainage channel passes through the defendant's fields which lie to the south of the plaintiff's lands. Plaintiffs' claim to discharge the water through the channel is based upon an easement right granted to plaintiff 1 Under Ex. E by the defendant's father. Ex E dated 30th July 1911 is a letter written by the defendant's father, Dikshithalu, to plaintiff 1. It runs as follows:You wanted a bodi for flowing freely the surplus water through the land along eastern bund of Re Survey Inam No. 187 owned by us in Pedavarthi village. Having given a bodi to you in the said manner, I wanted you to give me at a future time a bodi to my land 187 through your land 75 in case I dig the earth from my land and lower the level of the same and you consented to the same. On this understanding I allow a bodi through my land.

2. The defendant contended (1) that Ex. E is inadmissible in evidence for want of registration under Section 54, T.P. Act, and (2) and that, if admissible in evidence, the 'document is not binding on him with respect to a portion of the bodi, inasmuch as, when his father granted the easement, he had no right over that particular portion of the property, which in 1916, i.e., after his father's death, came to him (the defendant) by way of reversion. The lower appellate Court disallowed the contention of the defendant on both these points and decreed the plaintiff's suit. These points are again urged before me in second appeal.

Point No. 1.-In support of this contention reliance is placed upon Clauses 1 and 2, Section 54, T.P. Act. Clause 1 states that

Sale is a transfer of ownership in exchange for a price paid or promised or part paid or part promised.

3. Under Clause 2

Such transfer...in the case of a reversion or other intangible thing can be made only by a registered instrument.

4. It is argued that, under Ex. E, an easement right, that is, a part of the right of ownership as contemplated in Clause 1, Section 54, T.P. Act, has been transferred to plaintiff 1 and this, being a transfer of an intangible thing as contemplated in Clause 2 of that section, it can only be done by a registered instrument and since Ex. E is not registered it is inadmissible in evidence. Under Section 6 (c), T.P. Act, an easement cannot be transferred apart from the dominant heritage. Section 54 of the Act taken along with Section 6 (c) would appear to contemplate the transfer of an existing easement as distinguished from the creation of the imposition of a new easement. It is clear that there is a distinction between the transfer of an existing easement and the creation or grant of a new easement. The transfer of an existing easement is the act of the dominant owner and is inseparable from the transfer of the dominant heritage, while the creation of a new easement is the act of an owner imposing a burden on his property. On this reasoning the grant of an easement does not involve such a transfer of ownership in immovable properties as is contemplated by Section 54, T.P. Act, hence Ex. E does not require registration.

5. The arguments addressed to me were all elaborately considered by the learned Judges of the Allahabad High Court in Bhagwan Sahai v. Narasingh Sahai [1909] 31 All. 612 overruled. It was held in that case that an agreement granting an easement right did not require registration, not being a transfer of ownership as contemplated by Section 54, T.P. Act. Prior to the enactment of the Easement Act, Act 5 of 1882, it was laid down by this Court in Krishna v. Rayappa Shenbhaga 4 M.H.C. 98 that it was not necessary that the imposition of an easement should be evidenced by a written instrument. In his Anglo-Indian Codes, Dr. Whiteley Stokes in the introduction to Act 5 of 1882 says that the Act, following the decisions of the Madras High Court and deviating from the English law, does not require the express imposition of an easement to be evidenced by writing. Peacock, in his Tagore Lectures, also expresses the same opinion. Mitchell in his commentary on the Easements Act, Edn. 2, p. 46, states that

by the law of India, wherever the Transfer of Property Act applies, the grant of easement by way of sale must be made by a registered instrument, an easement being an intangible tiling, 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.

6. The learned author does not cite any authority in support of this proposition. Apart from the argument based on the meaning of the expression 'transfer of ownership' used in Section 54, T.P. Act, these are the only authorities cited by the learned advocate for the appellant. As I have already pointed out, all these arguments and authorities have been, if I may say so with respect, very carefully and elaborately considered in Bhagwan Sahai v Narasingh Sahai [1909] 31 All. 612 and I cannot do better than refer to the exposition of the law on this point contained in that judgment in answer to the appellant's arguments. In that case

the owner of a house undertook by an ' argument' to permit the owner of an adjoining house when he built a second storey which was in contemplation, to discharge rain water and also water used for daily household purposes into the premises of the former.

7. Referring to the argument that by this 'agreement' its executant transferred a portion of his right of ownership as contemplated in Section 54, T.P. Act, Tudball, J., made the following observations.

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 right 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 esement 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.

8. Then the learned Judge proceeded to discuss the authorities to which I have already drawn attention. Banerji, J., also expressed a similar view. This decision was followed by Jackson, J., in Kondayya v. Veeranna A.I.R. 1926 Mad. 543. A Bench of the Calcutta High Court in Sital Chandra v. Allen J., Delanney 20 C.W.N. 1158,. has pointed out that the provisions of the Transfer of Property Act have no application to the creation of easements and that the Act was not intended to deal with them Accepting the principle laid down in these decisions which I am prepared to follow, I hold that Ex. E is not inadmissible in evidence for want of registration. (The judgment then deals with the question of. fact whether a portion of the land through which the bodi passed did not belong to the defendant's father in 1911 and holding that the defendant's father had title to and was in enjoyment of the entire land through which the suit bodi passed dismissed the appeal).


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