Suhrawardy and Chotzner, JJ.
1. This is an appeal against the order of the Court below dated the 15th September, 1923, passed in the execution of a decree. Gopi Nath Biswas, a brother of the respondent, brought a suit for partition of the family dwelling house which was in the joint occupation of all the co-sharers. There was a decree for partition and a Commissioner was appointed to effect it. By consent of parties, the Commissioner made the allotments by which two contiguous rooms under one roof were allotted to Gopi Nath and the respondent respectively. There are walls between the two rooms which fell to the share of Gopi Nath who had to pay some money to the other co-owners as compensation. Thereafter Gopi Nath sold the portion allotted to him to the appellant who applied for execution of the decree. Possession of the room allotted to Gopi Nath was delivered to the appellant by Court. The appellant, however, was not satisfied with the delivery of the possession of the walls between the two rooms as the beams and rafters of the roof of the respondent's room were resting on them and applied to the Court below to deliver to him 'exclusive possession' of the walls by removing the beams and rafters of the respondent as he said he was going to demolish the walls and rebuild his portion of the house. The learned Subordinate Judge disallowed the appellant's prayer remarking that the walls form the support of the respondent's roof and that the removal of the walls would mean the collapse of the respondent's room. The learned Judge has given no other reason for rejecting the appellant's application except that it would be a great hardship to the respondent if the appellant was allowed to remove the walls. This appeal is against that order and it is argued that as the respondent has no right to the walls which have been allotted to the appellant, the prayer for exclusive possession should not have been refused on the ground of hardship to the respondent.
2. A point by way of preliminary objection was raised by the respondent, namely, that as full delivery of possession had been effected and certified by the Court the question now raised by the appellant cannot be agitated in the execution proceedings though it may form the subject of a separate suit. But as the question has been raised in execution of the decree between parties to it, we think it is rightly raised under Section 47, Civil Procedure Code.
3. The respondent bases his claim to rest his beams and rafters on the appellant's walls on a right which is known in law as a 'quasi-easement'. 'The term 'quasi-easements' has been applied to those easements, which, not being easements of absolute necessity, came into existence for the first time by presumed grant or operation of law on a severance of two or more tenements formerly united in the sole or joint possession, or ownership, of one or more persons.' Peacock on Easements, Third Edition, page 343. Such easements will not come into existence where they are expressly excluded by the terms of the grant or are inconsistent with the intention of the parties. They generally arise on severance of tenements held under sole possession or one ownership or on division of a tenement held under joint ownership or possession. They are conveniences to which the law subjects one part of the property for the benefit of the other part. Such easements, therefore, arise on a partition of joint property as they do in the case of the division of a tenement possessed or owned by a single person under grants by him. The difference in the two cases is that, according to the law obtaining in places where the Indian Easements Act is not in force, while in the former case a division of joint property gives rise to reciprocal easements in favour of coparceners, in the latter case such rights do not ordinarily accrue to the grantor except by express reservation by the terms of the grant. But the law relating to quasi-easements, arising on a division of joint property, is based upon the same principle which governs the conveyance of a part of the tenement held by a single owner or possessor. The principle is that on the grant by the owner of an entire property or part of that property as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements, termed quasi-easements, which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant in use for the benefit of the part granted: Suffield v. Brown (1864) 4 DeG.J. & Section 185, Amutool Russool v. Jhoomuch Singh (1815) 24 W.R. 345, Delhi and London Bank v. Hem Lal Dutt (1887) I.L.R. 14 Calc. 839, 853. Such easements arise in favour of the grantee on several principles as observed in the case of Sarojini v. Krishna (1922) 36 C.L.J. 406. Applying the above principle, which is well established, to the case of partition of joint property, the law may be thus stated: 'As between coparceners, mutual conveyances of the shares allotted to them respectively upon a partition of joint property, whether under the direction of Court of law or otherwise, will carry with them by presumption of law the right to such continuous easements as are necessary for the reasonable use and enjoyment of the premises respectively allotted:' Peacock on Easements, page 393, Bolye Chander Sen v. Lalmani Dasi (1887) I.L.R. 14 Calc. 797, Sarojini v. Krishna (1922) 36 C.L.J. 406. One of such easements is the right of support (including lateral support) which passes by implication of law to a grantee [Dalton v. Angus (1861) L.R. 6 A.C. 740] and it is applicable to the case of a party wall which belongs entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintained as a dividing wall between the two tenements: Watson v. Grey (1880) 14 Ch. D. 129.
4. The learned vakil for the appellant maintains that the easement claimed by the respondent places an onerous burthen on his client's property, that it is not a case of absolute necessity, and that the respondent may erect a wall on his own property to support his portion of the roof. As we have observed, a quasi-easement need not be of absolute necessity but is one which is reasonably necessary, i.e., necessary for the occupation of the severed tenement in the same condition as it was at the time of the transfer. In this connection reference may be made to Section 13 of the Indian Easements Act. Though the Act is not in force in this part of the country, it may serve as a useful guide for ascertaining the rule of law on which the doctrine of lateral support is founded. See the first portions of illustrations (h), (i) and (j) to Section 13 and Krishna Marazu v. Marraju (1905) I.L.R. 28 Mad. 495, Ratonji v. Edalji (1871) 8 Bom. H.C. (O.C.J.) 181 and Purshotam v. Durgoji (1890) I.L.R. 14 Bom. 452. No doubt the easement claimed by the respondent to some extent affects appellant's property, but that fact is not in itself sufficient to annul a right founded upon a well recognised principle of law whether such right is claimed as one attached to property or under a presumed contractual relation between the grantor and the grantee or among coparceners. As to the suggestion that the respondent may erect a wall to support his portion of the roof, the same argument may be advanced against all quasi-easements which are not easements of necessity, and appears to us to be without substance.
5. On a consideration of the authorities on the subject and of the facts of the present case we are of opinion that the easement of lateral support claimed by the respondent arises by necessary implication on a partition of joint property and is well founded in law.
6. The partition suit was between brothers and it may fairly be presumed that in consenting to the allotments made by the Commissioner, it was not the intention of the respondent to surrender his right to such quasi-easements as legally accrued upon a division of the joint property, nor at that time was a controversy such as the present within the contemplation of the parties; and the intention of the parties is an important element, in such matters: Sarojini v. Krishna (1922) 36 C.L.J. 406. The mere fact that the price of the walls which were valued at Rs. 15 by the Commissioner, was taken into account in adjusting the value of the allotments and was included in the value put upon the appellant's portion does not in any way affect the applicability of the law as above stated.
7. The result is that the appeal fails and is dismissed with costs.