K.S. Venkataraman, J.
1. The plaintiff is the appellant in this second appeal. The question for decision is whether in the lane marked V in the rough sketch. (Exhibit A-7) attached to the plaint, which belongs to the plaintiff, the defendants are entitled to a right of way. It is necessary to have an idea of the location of the properties as given in Exhibit A-7. There are five plots, designated by the letters I, II, III, IV and V in the sketch. Plot I is the westernmost plot and it abuts Kandasami Koil Street, which is west of Plot I and runs north to south. The north-south measurement of plot I is 30'. Plot II is just east of Plot I and it also measures 30' north to south. Plot III is just east of plot II, but its north-south measurement is only 22' (the east-west measurement being 30'). Thus the western boundary of Plot III is only to a length of 22' along the eastern boundary of plot II and that 22' is counting from the northern point of the common boundary. Plot IV is just east of Plot III and the north-south measurement thereof is also 22'(the east-west measurement being 60). Just east of Plot IV there is a public street called Satchidanandam Street. Plot V is immediately south of Plots III and IV aforesaid. Its north south measurement is 8; the east-west measurement is 30'+ 60=90'. In other words, the western boundary of Plot V is the sourthern portion of 8' of the eastern boundary of Plot II and the northern boundary of Plot V is the southern boundary of Plots III and IV. The following is a rough sketch of the properties described above:
_______________________________________________________________Kanda-| | | | |Satchi-sami | | | 22' | 22' |danandam Koil | I | II | III | IV |Street Street| | 30' | 30' | 60' | | | |____________________|________________| | | | 8' V ||___________|_____________|_____________________________________|
2. Originally all the five plots belonged to one Munuswami, having been allotted to him in a partition (Exhibit B-l) dated 25th April, 1927. On 1st May, 1973, (Exhibit B-2 is the registration copy) he sold the easternmost plot, i.e., Plot IV, to one Kanniah Naidu (60' east to west and 22' north to south). The southern boundary is described as the vacant site retained by Munswami.
3. On 7th February, 1935 (Exhibit B-3 is the registration copy) Munusami sold plot III to Raju Pillai and Subbaraya Pillai. This is the most vital document in the case and the relevant portion of the schedule thereto runs thus:
On the western side of Nalpulam Street (another name for Satchidanandam Street) west of the land purchased by Kanniah Naidu (under Exhibit B-2) east of the house and site of Munusami Pillai (vendor) (that is to say, plot II), north of the house and site of Sambanda Naicker and the lane which I have left in common for egress and ingress and south of Ekambaram Pillai's house and site : east-west measurement 30'; north-south measurement 22' .
4. As we shall see, the first defendant is the successor-in-title of the vendee under Exhibit B-3, and she contends that the common lane referred to is Plot V, the disputed plot in this appeal, and that a right of passage to and from the street in the east was granted to the vendees under Exhibit B-3 by the original owner, Munusami.
5. The question for consideration will be whether this contention is right, but in the meantime, I shall proceed with the other transactions relating to these properties.
6. Next, on 28th June, 1937 (Exhibit B-4 is the registration copy) Raju Pillai sells Plot III to Kanniah Naidu (who had purchased Plot IV under Exhibit B-2). The description of the property in Exhibit B-4 is:
West of your house in the western row of Nelpulam Veedi, east of Munusami Pillai's house, north of 8' common lane and south of Ekambaram's house : east-west measurement 30' and north-south measurement 22'.
7. Then on 29th April, 1938 (Exhibit B-5 is the registration copy) Munusami Pillai sells the westernmost plot (Plot I) to one Danakoti Ammal. We are not really concerned with that in this case.
8. Then on 8th August, 1945 under Exhibit A-1 Valliammal,the widow of Munusami Pillai sells plots II and V to Chidambara Odayar, the father of the plaintiff in the suit (Appellant in this second appeal). The properties are described as comprising of, firstly Plot II described as 45' long east to west and 30' broad north to south, and secondly the lane 90' long and 8' broad. The lane, however, is not described as a common lane.
9. On 21st February, 1952 Govindasami son of Kanniah Naidu (purchaser of Plots III and IV) sells under Exhibit A-2 plots III and IV to one Sambanda Naicker and his wife Pappathi Ammal. Govindasami the vendor under Exhibit A-2, has been examined as D.W. 1 in the case. The properties are described in two schedules, A and B. The A schedule refers to Plot IV, the measurements being north-south 22' and east-west 60'. The B schedule relates to Plot III. It is described as north of Narasanam Sandu, i.e., north of the common lane. (Incidentally, there is a slight-mistake in the dimensions : they are given as east-west 30' and north-south 33'--total area 660 sq. ft. It is obvious that the east-west measurement and the total area have been correctly described, but the north-south measurement should read as 22').
10. On 7th December, 1959 (Exhibit B-6 is the registration copy) Sambanda Naicker settles the properties (Plots III and IV) in favour of Apurupammal (another wife of his). The A Schedule therein relates to Plot IV and the B schedule relates to Plot III. In the description of the property in the B schedule, the southern boundary is described as Naras Sandu. (The measurements are correctly given as 30' east-west and 22' north south area 660 sq. ft.)
11. On 20th December, 1963 (Exhibit B-7 is the registration copy) Apurupammal sells Plots III and IV to Rajammal, the first defendant in the present suit. In schedule B the southern boundary is described as the vacant site left for egress and ingress.
12. The second defendant is the husband of the first defendant.
13. The plaint describes Plots II and V together (which the plaintiff's father purchased under Exhibit A-l) as the A schedule to the plaint, and describes Plot V separately as the B schedule to the plaint. The plaintiff states that he was in absolute, exclusive and uninterrupted enjoyment of the A and B schedule properties. There were huts in the A schedule property, and B schedule property was a passage for the A schedule property to the street on the east and further contained a drain and a latrine. The plaint then describes Plots III and IV as containing, a single house, door No. 20-L Satchidanandam Street, and states that it had only one access to Satchidanandam Street directly.
14. The plaint states that there was originally a brick wall which Apurupammal had put up over twenty years before to demarcate her properties (Plots III and IV) from the disputed Plot in the south. The compound wall collapsed in October, 1966, during heavy rains. Then Apurupammal put up a ' thatti wall' (of leaves). The defendants who purchased Plots III and IV only four years before the suit(filed on 9th December, 1968) removed the thatti and began to put up constructions, leaving an opening into Plot V in order to claim a right of passage to Satchidanandam Street, through that opening over Plot V. The plaintiff therefore issued a notice on 4th February, 1964 (Exhibit A-4) and the defendants sent a reply, Exhibit A-5, dated 18th February, 1964 claiming right of way along Plot V. Therefore, the plaintiff instituted the suit for a declaration that the defendants had no right to the B schedule property and for an injunction restraining them from putting up any opening in the rear part of the southern wall in order to have access to the B schedule property.
15. The defendants in their written statement contend that there was a passage from Plot III along Plot V to the eastern street (Satchidanandam Street) and that it has been mentioned right through in the documents. They further point out that there is one house in Plot IV which is door No. 20, and another house in Plot III, its door number being 20-L and that the only access to the street for the house in Plot III is through the disputed plot (Plot V). The defendants claim that they have obtained a right of passage as easementary right under the documents or as easement of necessity.
16. Besides documentary evidence in the case, oral evidence was adduced on each side. M. Gururajan, the learned III Assistant Judge of the City Civil Court, Madras, who tried the suit, had no difficulty in holding that the description in the sale deed (Exhibit B-3) relating to Plot III by Munusami to Raju Pillai and Subbaraya Pillai and the then existing circumstances clearly showed that the disputed plot was set apart as a common passage to and from Satchidanandam Street not merely for the benefit of the vendor, Munusami Pillai, but also for the benefit of the vendees, because at that time there was no other means of access to and from the said street to Plot III the easternmost plot having been already sold to another party (Kanniah Naidu) under Exhibit B-2, in 1933 itself. He further points out that, when Kanniah Naidu purchased Plot III also under Exhibit B-4 in 1937, the said plot was described as 8' common lane. The learned trial Judge points out that, because Exhibits B-3 and B-4 were executed long before disputes arose, the recitals contained therein have great weight. But in his view, by setting apart the suit plot as a common passage, the vendor Munusami Pillai did not grant a right of way to Raju Pillai and Subbaraya Pillai, vendees under Exhibit B-3, but only recognized that they had an easement of necessity, under Section 13 (a) of the Easements Act. That provision runs thus:
Where one person transfers or bequeaths immovable property to another (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement.
The easements mentioned in this section, Clauses (a), (c) and (e) are called easements of necessity.
17. On the above view, the learned Judge expressed the opinion that, when in 1937, under the original of Exhibit B-4, Kanniah Naidu, the owner of Plot IV, purchased Plot III also from Raju Pillai, there was no longer any necessity for the right of way--because Kanniah Naidu could reach Satchidanandam Street from Plot III by going over his property, Plot IV, and vice, versa, could reach Plot III from Satchidanandam Street by going through Plot IV. The learned trial Judge referred to Section 41 of the Easements Act which says:
An easement of necessity is extinguished when the necessity comes to an end.
18-19. He expressed the opinion that but for Section 41 the defendant's right of way over the suit plot could have continued. He referred to the fact that no such specific case had been pleaded in the plaint, namely, that there was an extinction of the easement under Section 41 of the Act, but he seems to have felt that it was immaterial. On the above view he decreed the suit as prayed for.
20. The defendants preferred an appeal which was heard by Thiru C.J.R. Paul, Principal Judge (as he then was, now a Judge of this Court). The learned appellate Judge, differing from the learned trial Judge, held that under Exhibit-B-3 Munusami Pillai granted a right of passage over the suit plot to the vendees and that the case did not fall under Section 13 of the Easements Act. The learned Judge expressed the opinion that the easement of necessity under Section 13 would arise not from any grant, but from certain circumstances detailed in that section. He proceeded to point out that Section 41 would extinguish only easements of necessity under Section 13, but not a right of way which was the subject-matter of a grant. The various other sections which refer to the extinction of easements, like Sections 37, 38, 39, 40, 42, 43, 44, 45, 46 and 47, did not apply at all, and there was no contention that any of those sections applied. In this view , he allowed the appeal of the defendants and dismissed the suit. Hence this appeal by the plaintiff.
21. The first question for determination is whether a right of way over the suit plot was granted to the vendees under Exhibit B-3, and the second question is whether, if that right of way had been granted, it would become extinguished under Section 41 of the Act. I have no hesitation is agreeing with the learned appellate Judge. On the first point, it is clear from the description in Exhibit B-3, construed in the light of the facts then existing, that Munusami Pillai, left the disputed plot as a common passage, common in the sense that it was common both for himself (as owner of Plot II which he still retained) and the vendees under Exhibit B-3. If he had not meant this, there was no need to use the word 'common' in describing it as a common lane.
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22. The appellant's learned Counsel sought to interpret the words as meaning that the eight feet lane was meant only as a passage for himself, but obviously the real meaning is that he had set apart the lane as a common lane for access to and from the street. If he had meant to retain it exclusively for himself, without a right of way to the vendees, he need not have referred to it as a common lane at all and he could have simply described it as his own exclusive property. This interpretation is clear from the description in Exhibit B-3, itself, but is made clearer if we remember that, as a matter of fact, there was no other access to the vendees under Exhibit B-3 to and from Satchidanandam Street. That Was because Plot II had been retained by the vendor and Plot IV had already been sold to Kanniah Naidu, under Exhibit B-2 in 1933 itself. The learned trial Judge himself recognizes this, but he would say that it Was merely a recognition of the easement of necessity arising under Section 13 of the Act, and would not amount to a grant.
23. In this he is clearly wrong. A grant need not be in express terms ; it is enough) if it can be gathered as a matter of necessary, implication from the recitals in the document, construed, if necessary, in the light of the circumstances then existing. The learned trial Judge himself, refers, inter alia, to the decision of Venkatasubba Rao, J., in Kuppakkal v. Mathan Chettiar : (1924)47MLJ477 , but misses the implication of the case.
24. In that case one Rangaswami Chettiar owed a big vacant plot out of which he sold a portion (designated as site A by the learned Judge) to the first defendant on 26th June, 1917. That strip of land was 102 feet, long and 21 feet wide and it had only this small frontage on a public road. South of the portion sold the owner had still with him a portion designated as site B and site B also abutted the public road. The bulk of the property which the owner still had was at the back of site A and site B. This bulk the learned Judge designated as site C. Access to the public road for site C was over site B. Sites B and C were also sold by the owner, Rangaswami Chetty, to certain persons three days subsequent to the sale of site A, and the plaintiffs in the second appeal which came up before the learned Judge, derived title from those vendees. The first defendant built a small house facing the public road on the site A and left the land at the back of her house as open space. She then built another house on that vacant land and, as it had no frontage on the road, she claimed a right of way over site B. The basis of her claim was that in the sale deed executed in her favour the southern boundary of the site conveyed to her was described as 'Pathway 18 feet in breadth which I am going to set apart.' This claim was resisted by the plaintiffs who brought the suit. The Courts below negatived her claim. She preferred the second appeal. The learned Judge observed:
Whether the first defendant has acquired the right she claims depends entirely upon the construction of the conveyance in her favour. In regard to the surrounding circumstances, two facts seem in my opinion, to be of outstanding importance: (i) The land sold to the first defendant was about 102 to 105 feet in length, and it was vacant building land. It was not to be expected that the first defendant would i only build one house upon it. If more than one house was to be built, the access to the house at the back of the first house would naturally be over the site No. B.
(2) The sites B and G were not laid out as building plots, but on the contrary they were regarded as forming one block to be conveyed to one purchaser. That being so, there was no significance in describing site B as an intended pathway unless it was a pathway intended also for the use of the first defendant.
These two circumstances strongly support the first defendant's case. On a construction of the words relied on, I am of the opinion that her contention must prevail.
The learned Judge then refers to some previous decisions on the point in support of his view.
25. This decision is authority for the position that, though a right of way had not been expressly granted to the first defendant in that case under the sale deed to her, it was held, as a matter of construction of the actual recitals in the deed and in the light of the surrounding circumstance that by necessary implication there was grant of a right of way as a pathway which the vendor was going to set apart just south of her land to a width of eighteen feet. This decision applies exactly to the construction of Exhibit B-3 in this case.
26. On the question of the construction of Exhibit 6-3, Mr. G. Jagadisa Iyer, learned counsel for the respondents (defendants), has also cited the decision of Jagadisan and Venkatadri, JJ. in Ratanchand Chordia v. Kasim Khaleeli : AIR1964Mad209 . The relevant facts are these. The Princess of Arcot owned a property in the Southern part of Mount Road. In the southern portion a building was originally put up called 'Rushkrum,' originally bearing number 1/35, Mount Road. Khaleel Shirazee purchased this property from the Princess of Arcot in 191 o. He remodelled the property and in front of 'Rushkrum' he put up buildings known as 'Khaleel Mansions', almost abutting Mount Road, 'Khaleel Mansions' were put up in two portions, leaving a wide common passage A B G D, in between. That common passage A B G D was the way used by the occupants of 'Rushkrum' as access to and from Mount Road. Under a deed dated 1st April, 1925 Khaleel Shirazee settled 'Rushkrum' in favour of the plaintiff, one of his sons. He settled 'Khaleel Mansions' in favour of another son, Abbas Khaleel. Abbas Khaleel became an evacuee to Pakistan, and his property, 'Khaleel Mansions', was declared to be evacuee property and became vested in the Gustodian of Evacuee Property. They closed up the passage A B C D, by raising a wall X Y so as to prevent the plaintiff from having access to Mount Road from the property, 'Rushkrum'. The plaintiff prayed for the removal of the obstruction. He claimed a right of way by prescription, or, alternatively, by an implied grant under the settlement deed dated 1st April, 1925. The learned Judges held that he was entitled under both the heads. We are now concerned with the second head. They observed (at page 298):
We have now to consider the question whether the plaintiff can found his case on an implied grant of easement. The settlement deed by Khaleel Shirazee, Exhibit A-2, dated 1st April, 1925, in favour of the plaintiff does not of course, confer a right of easement in his favour through the pathway A BCD. If that had been provided for, the question need not be further discussed. Is thereanything implicit in the document to show that the grantor must have intended to confer a right of Way to the gifted property from the main road, viz., Mount Road? The property given to the plaintiff is described as follows : ' House and ground No. 1/35-B and 1/ 5-A at Mount Road, Pudupakkam, Madras, within the Sub-Registration District of Triplicane and Registration District of Madras--Chingleput, bound-ed on the north by Woods Road, south by Club House Road, west by premises No. 1/35 and 1/35-C, east by land of Mohammed Khaleel Shirazee bearing old S. No. part of 35 and resurvey No. 314 of the value of Rs. 92,000'.
At the time of the settlement the property given to the plaintiff had the amenity of being reached from Mount Road. In fact, Khaleel Mansions Building itself came into existence only some time between 1923 and 1925 and when Khaleel Shirazee made a gift of 'Rushkrum' to the plaintiff knowing full well that the right of way to the building was from the Mount Road and executed the document without expressly stating that the old right of way should continue, it would not amount to the plaintiff (donee) being deprived of that right. It is significant to note that there is no alternative right of way mentioned in that document of gift. If nothing was said in the document, it would rather mean that the donor wanted the old state of affairs to continue and not that he was averse to confer any right on him. We are unable to agree with Mr. Gopalaswami Ayyangar's contention that because there are no express words in the document of gift in favour of the plaintiff it would be impossible for a Court to spell out an implied grant. The question whether a grant can be implied or not would only arise in a case where there is no express grant. To say the least, the contention that the absence of an express grant would negative an implied grant is quite untenable.
An easement may arise by implication under a grant, if an intention to grant can properly be inferred, either from the terms of the grant, or from the circumstances. An easement may also arise, by what may be called a constructive grant, from general words in the grant, read in the light of the circumstances. (See Gale on Easements, Thirteenth Edition, pages 67-68). It is the intention of the grantor whether he can be presumed to have intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement.
27. The learned Judges then discuss the authorities bearing on the point and conclude:
In our opinion, the facts of the present case are such as to lead us to the conclusion that Khaleel Shirazee must be presumed to have conferred a right of access to the grantee of Rushkrum from the Mount Road direct at the time when 'he made the settlement of the two properties Rushkrum and Kaleel Mansions.
28. It seems to me that the above decision can also be usefully applied to the construction of Exhibit B-3 in this case. Incidentally it may be noted that in that case it was not as if the Way claimed by the plaintiff through the passage A, B, C, D was a necessity, because the evidence showed that there Was some other means of access, though not quite convenient, from Rushkrum to Woods Road on the east and Club House Road on the west. (The directions are mentioned wrongly at page 294 of the report, but I have referred to the sketch which was available before Kailasam, J., from whose judgment the Letters Patent Appeal was filed, and anybody who is acquainted with the locality will also know the correct description). It may also be noted that a right of way is not a continuous easement and therefore Section 13 (b) of the Act would not apply either. Therefore, the plaintiff could succeed only if there was a grant in his favour. If that was the position even where the way was only convenient for him and was not a way of necessity, it seems to me that the position would be stronger for the defendants in this case.
29. The reason for the view of the learned trial Judge, that there was no express grant and that there was only a recognition of the easement of necessity arising under Section 13 (a) of the Easements Act, seems to be that there are no express words in Exhibit B-3 granting a right of way. But it is clear from the two decisions cited viz., Kuppakkal v. Mathan Chettiar : (1924)47MLJ477 , and Chordia v. Kasim Khaleeli : (1964)1MLJ293 , that the grant of a right of way which has necessarily to be implied on a true construction of the deed, has as much efficacy as an express grant. It will be noted that Jagadisan, J., refers to Gale on Easements, Thirteenth Edition, pages 67-68. The corresponding reference to the Fourteenth Edition is at pages 82-83 : Part II ' The Acquisition of Easements', Chapter 3 'Creation of Easements by known Transactions'' Sub-section 3 'Creation by Implication';
An easement may arise by implication under a grant, including a lease and a testamentary gift, of land, if an intention to grant it can properly be inferred. This intention may be inferred:
1. Where the grant contains particular words of description. Alternatively, in such a case, the easement may be created by estoppel.
2. Where the circumstances indicate that it was contemplated that the land granted would be used in some particular manner. The easement may be implied by the necessity of the case.
3. Under the doctrine of non-derogation from grant, by virtue of which, as already noticed , there may be acquired not only easements, but also immunities of a special kind not recognised as easements.
4. Under the rule in Wheeldon v. Burrows (1879) 12 Ch.D. 31, which is a branch of the general rule against derogation from grant, but which is commonly considered under a separate head.
Again at page 118 of the Fourteenth Edition, it is stated:
It has been held that if a house or land with a drive or other obvious means of approach is granted without the drive or any right over it, a right over the drive will a rise by implication. No case of necessity arises, because a right over a defined way is impliedly granted....
This passage means for us that, if a right over a defined way is impliedly granted on a true construction of Exhibit B-3, no case of necessity under Section 13 (a) of the Easements Act arises.
30. That this is the true position emerges from a reading of the several provisions in the Indian Easements Act. Chapter II deals with the imposition, acquisition and transfer of easements. Section 8 says that an easement may be imposed by any one in the circumstances and to the extent in and to which he may transfer his interest in the heritage on which the liability is to be imposed. This means that the owner of the servient heritage may impose an easement on it in favour of the dominant owner, and this is usually referred to as a grant of easement which in turn may either be express or implied. Again Section 9 says that, subject to the provisions of Section 8, a servient owner may impose on the servient heritage any easement that does not lessen the utility of the existing easement. This again recognizes that a further easement may be imposed on the servient heritage, by the servient owner. Section 10 says that a lessor or mortgagor may impose any easement, subject to some limitations. Similarly Section 12 says an easement may be acquired by the owner of immovable property. It is only after these provisions that Section 13 occurs. Again it may be noted that in Chapter V, which deals with the extinction, suspension and revival of easements, Sections 37 to 40 deal with the extinction of easements generally, and they would apply to the extinction of easements acquired by grant (express or implied). Section 41 comes after these provisions. It deals with the easement of necessity, and says:
An easement of necessity is extinguished when the necessity comes to an end.
This has reference to easements of necessity such as are referred to in Section 13 (a), (c) and (e), and it would not be a reasonable construction to hold that this provision applies also to easements acquired by way of grant.
31. Neither side has been able to cite any direct decision of this Court on the question whether Section 41 will apply to a case of easement by grant. But Mr. Jagadisa Iyer for the respondents (defendants), has cited the decision of Srivastava, J., of the Oudh Chief Court, in Hirajee v. Suraj Bali 115 I.C. 303, which is entirely in his favour. There the plaintiff purchased a plot of land with a house from the then owner, Musamat Samkora. Later the heirs of Musamat Samkora sold the rest of the land to the defendants. The defendants constructed a house on the land purchased by them. The plaintiff's grievance was that the wall constructed by the defendants blocked his passage through a door which he had opened in his house. He contended that under the sale deed in his favour he had been expressly permitted to open the door in question and that it was intended to be used for ingress and egress from the house. The learned District Munsiff who tried the suit held that he had acquired a right of way through the door in question by prescription. The learned Subordinate Judge on appeal upheld the right on the ground that the right of way had been granted under the sale deed. This reasoning of the learned Subordinate Judge was confirmed in appeal by Srivasatava, J., The learned Judge observed:
It is quite clear from the terms of the sale deed executed by Musammat Samkora that the plaintiff was expressly permitted to open the door in question. I agree with the learned Subordinate Judge that there could be no object in granting permission for the opening of the door unless the door was intended to be used for ingress and egress from the house. This intention is further supported by the fact that at the time when the sale took place there was no convenient access to the house from the public road. I can, therefore see no reason to disagree with the opinion of the lower appellate Court that the terms of the sale deed coupled with the oral evidence fully established the alleged grant. The argument about the grant having terminated is based on the ground that though there was necessity for such a grant at the time of the sale deed, yet no such necessity exists now as the plaintiff can have access to the house from the public road otherwise than by the route in respect of which the right of way is claimed in the suit. It is urged that the grant must be considered to be a grant of easement of necessity and as there is no longer any absolute necessity for the alleged right of way, the grant also must be deemed to have come to an end. I cannot accept this contention. The scope of the grant must be determined by the terms of the contract between the parties. There is nothing in the terms of the sale deed to limit the grant until such time as the necessity is absolute. If it was intended that the grant should be limited in the sense contended for by the defendants, one should have expected some express provision in the sale deed to the effect that the door was to be closed when the necessity was no longer absolute. In the absence of any such provision in the sale deed and in the absence of any other evidence in support of such agreement, I must hold that the grant cannot be limited as the defendants would wish to limit it. I must, therefore overrule the contention.
32. Though the learned Judge does not refer to Section 41, it is clear that reference to Section 41 was made before him and that he overruled it. His ruling therefore amounts to this, that an easement acquired by grant cannot be extinguished on the ground stated in Section 41. I respectfully agree. It is true that in that case there was an express provision in the sale deed permitting the plaintiff in that case to open a door. But I have already pointed out that there is no difference in this respect between an express grant and a grant by (necessary implication on a true construction of the deed.
33. The above decision is quoted with approval in Katiyar on Easements, in the commentaries on Section 41, in the following terms:
This case may further be held to have laid down that the present section can have no application where an easement is created by grant, though otherwise it could have arisen as of necessity.
In Peacock on Easements (Third Edition), Chapter VI deals with acquisition of easements. Part II thereof deals with acquisition by express grant. Part III deals with acquisition by implied grant, and it is distinguished from acquisition by presumed grant or operation of law, which is dealt with in Part IV. Briefly speaking, it is pointed out that it would be acquisition by implied grant on the language of the document correctly construed, whereas acquisition by presumed grant or operation of law would arise under the provisions of law such as those contained in Section 13 of the Easements Act. Thus at page 326 it is observed as follows:
An implied, grant, in the sense here used, is a grant Which arises by implication from the language of the particular instrument construable according to the ordinary rules of construction, one of which is that the circumstances existing at the date of the grant may be looked at in order to ascertain the intention of the parties.
This is repeated at page 336 as follows:
Thus the question whether or not a way has passed under a grant or devise by the use of general words, still remains one of construction to be determined according to the intention of the parties as expressed in the instrument and ascertainable from the state of circumstances existing at the date of its execution.
34. This must be contrasted with what is stated at page 338 (Part IV--Acquisition by presumed grant or operation of Jaw) ;
The distinction between what for the sake of convenience has been called an 'Implied Grant' and a 'Presumed Grant' has already been observed upon.
In the former case the grant is one which arises out of the intention of the grantor as expressed in the words used by him and considered with reference to the state of circumstances existing at the time of the grant, whereas, in the latter case, the grant operates not by virtue of any words used by the grantor, but by virtue of a legal presumption arising on the ground of necessity, whether absolute or of the qualified character to be found in what are called quasi easements.' The subject is further continued at Page 339), etc.
35. Mr. Imamdar Abdus Salam, Counsel for the appellant, has relied on the decision of Anantakrishna Ayyar, J., in Venkatapathiraju v. Subbaraju : AIR1930Mad789 . But that is not a case of acquisition of easement by grant, and it is a case purely falling under Section 41. In fact, the learned Judge quotes a passage from Volume 14 of Cyclopedia of Law and Procedure in America which contains the following sentence at page 1194:
The rule that the right ceases with necessity has no application to Ways acquired by express grant or by prescription.
This sentence means that the rule enacted in Section 41 of the Indian Easements Act will have no application to ways acquired by express grants or by prescription, which is the case before us.
36. Similarly the decision of Krishna-swami Nayudu, J., in Mariyayi Ammal v. Arunachala Pandaram 69 L.W. 435 : A.I.R. 1956 Mad. 584, is not helpful on the present point. As regards the decision in Hari Lal v. Gora Chand 69 L.W. 435 : A.I.R. 1956 Mad. 584, also cited by learned Counsel, it is sufficient to observe that the learned Judge was not prepared to infer a grant on the facts and circumstances of that case.
37. So far I have confined myself to the Indian Easements Act, which alone governs us. But I may say that the same appears to be the position in England and America as well. Thus taking Goddard on Easements (Eighth Edition), it is seen from pages 2, 3, 4, 35 and 36 that an easement can be acquired by grant and that in such a case no question of easement of necessity arising under law (as in Section 13 (a) of the Indian Easements Act) would arise. Thus at page 2 it is stated:
One kind consists of easements created at the will of the landowner affected by them for the benefit of a neighbour and his land.
At page 4 it is stated:
A grant by deed will pass an in-defeasible right to an easement in perpetuity not only against the grantor and his assigns, but against strangers.
38. It is after dealing with easements acquired by grants that the learned author deals with easements of necessity (such as those dealt with under Section 13 of the Indian Easements Act). The treatment of the subject in Gale on Easements also shows that an easement may be acquired by grant, that it may arise by implication and that in such a case no question of easement of necessity under law arises. (See for example pages 82, 118, 194, 261. Chapter 9). Similarly in Chapter 12 under the heading 'Extinguishment of Easements by Operation of Law', it is stated:
An easement may be extinguished by operation of law. Thus it has been said that a way of necessity is limited by the necessity which created it, and when such necessity ceases the right of way is extinguished. Again, where an easement is created by grant for a certain period, when that period has elapsed, the easement comes to an end.
In other words, a distinction is made between an easement of necessity, as under Section 13 (a) of the Easements Act, and an easement created by grant.
39. The commentaries in 12 Halsbury (Simonds) Third Edition, are also to the same effect, but I find that a slightly different terminology has been employed, even under the heading ' Creation by Grant.'
Thus it is stated that an easement may arise (i) by express grant, (ii) by presumed grant, or (iii) upon a grant arising by implication of law. In the creation by' express grant are included not merely grants in express terms, but also grants which can be gatherd from the words) used, if they are sufficient to show the intention to create an easement grantable at law. The expression ' presumed grant' is used to denote an easement claimed under the doctrine of prescription. The heading ' Easements arising by implication of law ' deals with easements which are implied by the law itself (such as those which are enacted in the Indian Easements Act). (See pages 529, 532, 538 and 539).
In particular, at page 532 in paragraph 1155 it is stated:
The use of the word ' grant' or any other particular word is not necessary for the express creation of an easement. Any words are sufficient which clearly show the intention to create an easement grantable at law.
One of the authorities quoted in support of this is the following passage from the decision of the House of Lords in Ramsbotham v. Wilson (1860) 8 H.L.C. 348.
It is undoubted law that no particular words are necessary to a grant ; and any words which clearly show the intention to give an easement which is by law grantable are sufficient to effect that purpose.
This passage would apply to the case before us.
40. Turning to America, Volume 14 of the Cyclopedia of Law and Procedure deals firstly with creation of easements by express grants (for instance, at page 1159 etc) and then with easements acquired by implication (page 1166 etc.,) I have already referred to the passage at page 1194 containing the following sentence:
The rule that the right ceases with the necessity has no application to ways acquired by express grant or by prescription.
Similarly in 28 Corpus Juris Secundum 'Creation of easement by express grant or covenant' is first dealt with in Sections 23 to 29, and then easements arising by implication of law are dealt with later, and in Section 54 the following sentence occurs:
The rule that the right ceases with necessity has no application to ways acquired by express grant or by prescription, a right to a way so created cannot be defeated by showing that the owners have another convenient and accessible way of going to and from their premises.
41. Similarly in American Jurisprudence (Second Edition) easement by express grant is dealt with in Section 20, and it is stated that 'no set form or particular words are necessary to constitute a grant of an easement, as a general rule any words clearly showing the intention to grant an easement, which is by law grantable, are sufficient.'
42. In part 3, Sections 24 to 33 easements which arise by implication are dealt with and in Section 34 ways of necessity are dealt with as easements founded on implied grant or implied reservation.
43. In some of the decisions and text books it is observed that in the case of an easement of necessity, which is dealt within Section 13 of the Easements Act, the juristic basis is that the law implies a grant. I have already quoted from Peacock on Easements who calls this a presumed grant as distinguished from acquisition of grant by implication on a true construction of the deed. The further point to be noted is that, merely because the juristic basis of the easement of necessity, which is dealt with in Section 13, is said to be an implied grant, the converse will not follow. In other words where an easement is acquired by grant, either expressly or by necessary implication, it will not amount to an easement of necessity under Section 13 of the Act for the purpose of being liable to be extinguished under Section 41. Indeed, on principle it is clear that, if a person acquires a grant expressly or by necessary implication, it will usually be on payment and there is no reason why such an easement, which has been paid for, should be extinguished. In the case of an easement of necessity arising under Section 13, because the law raises it, it is understandable why it will come to an end when the necessity ceases, as enacted in Section 41. That reason cannot apply to an acquisition by grant In this particular case it will be clear that, if the defendants are denied the right of way which they acquired under Exhibit B-3 for plot III, they would be obliged to provide a right of way to Satchidanandam Street over plot IV and the house thereon. But that would detract materially from the value of plots III and IV and often-times it will not be possible to provide such a way. Plot III has been purchased as a separate unit and plot IV has been purchased subsequently. The easement of right of way over plot V to plot III is annexed to plot III--and there is no reason, in principle or on a reading of the statute, why such a right should cease when the owner of plot IV purchased plot III.
44. The question has been argued purely as a matter of law and no reference has been made to the evidence. The learned trial Judge also has not really given any definite finding on the evidence. The learned appellate Judge says that the right of way has been exercised by the owners of plot III from 7th February, 1935 onwards and up to the date of suit. Though there is no detailed discussion, this must be taken as a finding on the evidence in favour of the defendants, and it is binding on me in second appeal. Even otherwise, on examining the evidence I have definitely come to a conclusion in favour of the defendants, and I am not at all prepared to accept the evidence on the side of the plaintiff. It is highly improbable that a wall was put up with brick and mortar, that it suddenly collapsed during the rains in 1963, and that the defendants should think of putting up a construction in that connection just a few months before the suit. These allegations appear to be inherently artificial and false and seem to have been made only for the purpose of the suit.
45. In the result, I confirm the judgment and decree of the learned appellate Judge and dismiss the appeal, but without costs. No leave.