Right To Use Passage Granted In The Sale Deed Will Not Extinguish In Terms Of Section 41 Indian Easements Act: SC [Read Judgment]

The Supreme Court has held that right to use passage granted in the sale deed will not extinguish in terms of Section 41 of the Indian Easements Act, 1882.

In this case [Dr. S. Kumar vs. Ramalingam], the contention put forth on behalf of the plaintiff, was that the easement rights were not granted specifically to the defendant as the recitals in the sale deed are generic in nature usually put by the deed writers so as to confer complete title over the land sold to the defendants but that will not include the grant of any easement rights to the defendants.

Rejecting this contention, the bench comprising Justice L. Nageswara Rao and Justice Hemant Gupta observed that grant of easement right of passage granted in the sale deed to the defendant will not be negated only because the recital is generic in nature and usually put by the deed writers. Perusing the deed, the bench observed that there is a specific mention of easement rights reserved for defendant in the sale deed.

Referring to provisions of Section 48 of the Transfer of Property Act, 1882, the bench further observed:

The said provision contemplates that where a person i.e. Rajasekaran has created different rights in or over the same property i.e. 16 feet wide strip of land and such rights cannot be exercised to their full extent together, then each later created right shall be subject to the rights previously created. The exception is if special contract or reservation binding the earlier transferee is executed. It will mean that the exclusive right conferred on the plaintiff in the sale deed dated May 31, 1988 will not be legal till such time the earlier transferee i.e. defendant No. 2 has a special contract or reservation which binds her. Since the right of access to defendant No. 2 was reserved in the sale 8 deed dated April 1, 1976, therefore, the vendor could not confer exclusive right to the plaintiff vide sale deed dated May 31, 1988.

With regard to the contention that, there is no easement of necessity in terms of Section 41 of the Indian Easements Act, 1882 as such easement of necessity, if any, stands extinguished when the necessity comes to an end, the bench said:

The argument that right of easement stands extinguished once the easement of necessity comes to an end is not applicable to the facts of the present case. The argument is based on the fact that right, title and interest of both the defendants now stand merged in one person after the death of both the defendants. The rights of the parties arise out of document of title in the year 1976. Still further, the rights of the parties have to be adjudicated upon as they exist on the date of filing of the suit. The subsequent events of inheritance vesting the property in the same person will not take away the right of the defendants to use the passage adjacent to their land only because the defendant No. 2 has gifted part of land to defendant No. 1 or that after the death of both the defendants, the common legal proceedings inherited the property.
. The appellants have been granted right to use passage in the sale deed. Thus, it is not easement of necessity being claimed by the appellants. It is right granted to defendant No. 2 in the sale deed 9 therefore, such right will not extinguish in terms of Section 41 of the Indian Easements Act, 1882. 

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