An analysis of the concept of Easements and its transfer under the Transfer of property Act,1882

Introduction

Ever since the evolution of human societies, there has been a need for accumulation of resources essential for survival; food, water, etc. This was premised on the uncertainty of nature. Early humans did not have the guarantee of constant access to resources. Once we learnt how to grow crops, which served as a constant source of meal, essential for human survival, there was a need to settle down near these cultivated lands. Eventually, people started living together, sharing the burden of cultivating these crops and enjoying guaranteed supply of meals for themselves. More and more people settling down together eventually lead to more food, buying and selling of those foods, beginning of writing, establishment of power and with that, creation of laws, etc. One of the earliest evidences of property laws appear to be found in the Babylonian Code of Hammurabi[1] . Since then, prominent discourse has been made by scholars from the world of western philosophy. With the end of cold war and the establishment of US hegemony in the world, its political ideology of right wing capitalism and right to property has been heavy accepted as the norm. In the global scenario. In modern times, there has been a wide consensus around the world that right to property should be classified as a human right. The object of this article is to briefly understand what easements are and then specifically look at how they can be transferred under the Transfer of Property Act, 1882 (henceforth referred to as TPA), understanding their importance and how we make use of easements without realising.

Property rights in India

Ancient scriptures like the Manusmirti which evolved around 5 century B.C, governing different matters of the Hindu population in India, lays down the various ways the different caste groups were ought to possess property (if at all they were allowed to) and what to do with them. Therefore, as far as the evolution of the concept of property in India is concerned, it can be said that it has existed times immemorial.

With the commencement of the constitution of India, Right to property was included within part III under fundamental rights. However, with the 44nd amendment act, right to property was abolished from the list of fundamental rights and given the status of just a constitutional/ legal right, no longer enjoying the protection and supremacy given to fundamental rights. This change was made with government decision for the abolishment of zamindari, land reformation, reallocation and imposing of land ceiling. This was in accordance to the principle that our country is a welfare state, further supported by the existence of Directive Principles of State Policy under part IV of the Constitution of India.

The term ‘Eminent domain’ was taken from the legal dissertation De Jure Belli et Pacis, written by the Dutch jurist Hugo Grotius in 1625, which used the term dominium eminens (Latin for supreme lordship)[2]. It refers to the principle which gives government the power to take over private property for the use of a public purpose. Right to property in India is not an absolute right, there is an allowance for state intervention for genuine purposes. Such genuine purposes include a reason of it being in public interest as with respect to private property, the Supreme Court has declare that in a welfare state like that of India, right to property constitutes as a human right[3] . However, the issue that emerges out of this right of the government is that this term ‘public purpose’ has not yet been clearly defined and this leaves room for unjust government practices and abuse of the eminent domain power[4].

Easements

An easement is a non-possessory right. Which means that another person could get rights over one person’s property and not possess it. This could include the right of a person to use a part of land owned and possessed by another person to enter his own property or to enjoy his property appropriately. For example, this could include a passageway needed for person A to go to his own house through the land under the possession and ownership of person B or the necessary pathway to allow air and water to flow. Person A has a legal easementary right over that portion of person B to go to his property and reasonably enjoy his property. An express definition of easements has been given section 4 of Easements Act, 1882 . Important terms that should be discussed in reference to easements and our subsequent discussion on the transfer of easements shortly, are:

Dominant owner- The person A (from the example discussed above) on whose interest person B has to provide right to easement is known as the dominant owner.

  • Dominant heritage- The land that A benefits out of B’s property for the just enjoyment of his own property is known as dominant heritage.
  • Serviant owner: In this example, person B, who is legally bound to give up a part of his property to A to allow for a route to A’s house, is known as the serviant owner.
  • Serviant heritage: The piece of B’s land given to A for construction of a path to get to his house is termed as the serviant heritage.

Section 6 [c] of Transfer of Property Act

Section 6 of the transfer of property act deals with the subject of things which cannot be transferred. Clause [c] states that transfer of easements is not permissible, apart from dominant heritage. This means that simply alienating the right to easement is not possible. Right to easement is only possible with the transfer of the entire property. Along with the transfer of property, all rights and obligation that comes along with the property is transferred to the next owner. Therefore, in this circumstance, a transfer of dominant heritage along with the property will also take place.

Several cases over the years has given effect to this clause of section 6 of TPA. For example, in the case of T.V. Ravi v. B.R. Mohan[5] wherein the plaintiff had filed a suit for the grant of easementary right through agreement. The court declared that the dominant heritage will pass to the person in whose name the property has been transferred automatically. No separate transfer of easement or of property will take place.

In another case of Pandhari v. Motiram Jayram Deogade[6] which reiterated the rule laid down in section 6 [c] of TPA and also specifically deals with the question of registration of easements. The judgement lays down that in cases where there is no transfer in property, easements can be granted by executing a document and did not need a registration document. Therefore, the kabuliyatnama mentioned in this case was very valid and did not require registration under the Registration act, 1908. Reliance was placed in the case of Musunoori Satyanarayana Murti v Chekka Lakshmayya and ors[7] , where it was held that “an agreement granting easementary right did not require registration as there was no transfer of ownership as contemplated by section 54 of the Transfer of Property Act, 1882. I find that the aforesaid statement of law applies to the facts of the present case”.

Prabin Guha v. Uttam Chand Surana[8] also dealt with the question of registration of easements. According to section 2[6] of the Registration Act, 1908 includes within immovable property inter alia ‘right of way’. Thus any transfer of easement requires registration.

Profits a prendre

Easements and profits a prendre are terms that are sometimes interchangeably used. Profits is an English law concept and has been adopted in India. There is a mention of profits in these statutes: Registration Act and the General clauses Act, although there is no definition given in either of these statutes.

Just like Easement rights, profits a prendre is also a proprietary interest and a non-possessory right. There also exists several similarities between the two concepts because of this reason. Profits a prendre refers to the right to make use of or take something out of someone else’s land to yield profits for themselves. For example, the right to fish or the right to gather timber from someone else’s owned property.

There is no transfer of ownership here as well, just because person A (dominant owner) acquires the right to acquire things from the land of person B (servient owner). As discussed in detail earlier, an easement is simply a positive right, which annexes a part of the servient land for just benefit of the owner of the dominant land. Both these rights no do not require that the servient owner of the land make any other facilities available other than just giving up the land for dominant owner’s enjoyment and use. Both the grant of easements and a right to incur profits from someone else’s land are included under the definition of immovable property

. Section 3 of TPA, section 2(6) of Registration Act and section 3(26) of General Clauses Act, are statutes which define immovable property. Since all immovable property requires registration, a grant of profits a prendre and easements, as already discussed above also requires registration[9] . This aspect of registration of a grant of profit was discussed in the case of Bihar eastern Gangetic Fisherman Co-operative Society Ltd v. Siphani Singh[10] and Anand Behara v. State of Orissa[11] wherein in the former case, the right to fishing was considered as a profit a prendre and had to regard as immovable property. In the latter case the court discussed what profit a prendre is and the fact that such grants had to be registered compulsorily as it amounted to immovable property. Some other important cases where the concept of profits was discussed and interest in immovable property are Shantabai v. State of Bombay[12], State of Orissa v. Titagarh Paper Mills Company[13] etc. Difference between a right of easement and profits is that easements are mostly granted without the context of yielding of any profits and merely to ensure apt enjoyment of the dominant owner’s piece of land. Grant of profits is also made in order to allow the other person to remove something out of the land. This is not necessarily in the case of easements[14].

Conclusion

The subject of easements is best understood after a thorough reading of the Indian Easements Act, 1882. However, in this paper my focus has primarily been on the transfer of easements specifically. Easements are everywhere, especially in rural areas in India where the inhabitants of the village share wells, ponds, a common drinking water source, disputes regarding the use of these common spaces are solved my making use of easement rules. In some cases, if the right to easements did not exist, people would be devastated without a means to make use of their property. Easements help keep the peace between neighbours and communities. This makes it very important for detailed legislation regarding the subject of easements and its transfer.


[1] Gopal Sankarnarayanan, ‘The Fading Right to Property in India’ https://www.jstor.org/stable/43239608 Law and Politics in Africa, Asia and Latin America 44(2) 2011 Accessed 25 May 2020

[2] Nowak, John E.; Rotunda, Ronald D. (2004). Constitutional Law (Seventh ed.). St. Paul, MN: Thomson West. p. 263.

[3] Krishnadas Rajagopal, ‘Private property is a human right: Supreme Court’ Private property is a human right: Supreme Court – The Hindu Accessed 25 May 2020

[4] Umeshwari R. and Dr. A. Sree Latha, ‘Doctrine of Eminent Domain in India’ https://acadpubl.eu/hub/2018-120-5/2/166.pdf International Journal of Pure and Applied Mathematics 120(5) 2018 Accessed 25 May 2020

[5] 2016 SCC OnLine Mad 9911

[6] 2018 SCC OnLine Bom 3027

[7] AIR 1929 Madras 79

[8] 2011 SCC OnLine Cal 894

[9] Vishnumolakala Chandra Sekhar, Analusis on the legal implication of profit a prendre’ 1(3) SAJMS http://sajms.com/wp-content/uploads/2014/12/Analysis-on-Legal-Implications-on-Profit-A-predre.pdf accessed 26 May 2020

[10] 1977 AIR 17

[11] 1956 AIR 17

[12] 1958 AIR 532

[13] 1985 AIR 1293

[14] F.R Crane, ‘Easements, Profits a Prendre, Covenants and Licenses: A Reappraisal’ (1962) 4(1) Malaya Law Review https://www.jstor.org/stable/24861635 accessed 25 May 2020

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