TRANSFER OF PROPERTY ACT

NATIONAL LAW UNIVERSITY, ODISHA

TRANSFER OF PROPERTY

_____________________________________________________________________________

VII SEMESTER

A PROJECT WORK ON:

“EASEMENT OF NECESSITY”

SUBMITTED TO:
SUBMITTED BY-

DR. DOLLY JABBAL AKASH GUPTA

(2016/BBA/002)

MS. RUJITHA ANANYA SINGHAL

(2016/BBA/008)
 TRANSFER OF PROPERTY ACT

TABLE OF CONTENTS

ABSTRACT........................................................................................................................................2

RESEARCH METHODOLOGY.............................................................................................................2

OBJECTIVE....................................................................................................................................2

HYPOTHESIS.................................................................................................................................2

RESEARCH QUESTIONS.................................................................................................................2

CHAPTERIZATION.........................................................................................................................3

CHAPTER 1: EASEMENT OF NECESSITY-DEFINITION & APPLICATION.............................................4

CHAPTER 2: DEFINING NECESSITY...................................................................................................7

EXTINGUISHMENT OF EASEMENT.................................................................................................8

CHAPTER 3: DISTINGUISHING EASEMENT OF NECESSITY FROM CUSTOMARY & QUASI-EASEMENT

.........................................................................................................................................................9

QUASI EASEMENT DISTINGUISHED............................................................................................10

CUSTOMARY EASEMENT DISTINGUISHED..................................................................................11

CHAPTER-4: JUDICIAL INTERPRETATIONS......................................................................................15

CONCLUSION..................................................................................................................................18

BIBLIOGRAPHY...............................................................................................................................19

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ABSTRACT

The easement of necessity refers to the state in which easement cannot be separable from the
enjoyment of the dominant estate and such state arises by way of operation of law. To claim
easement of necessity, the degree of necessity has to be shown. Authors in this project have tried
to analyse through various judicial pronouncement as to what amounts to degree of necessity and
whether it has to absolute enjoyment or a limited enjoyment. The authors have differentiated
easement of necessity from customary easement and quasi easements and have studied each one
of them separately and exhaustively. In early times, easement of necessity was only enjoyed on
the land locked properties, however with the passage of time it has been made more widened.
Thus authors have highlighted various necessities that have evolved by analyzing various judicial
pronouncements passed by Apex Court as well as High Courts.

RESEARCH METHODOLOGY
OBJECTIVE
This main objective of this paper is to understand the concept of easement of necessity and its
evolution by analysing various judicial pronouncements.

HYPOTHESIS

1. The necessity must be an absolute necessity and not merely a convenient mode of
enjoyment of the property.
2. Quasi easements and Customary easements are similar to easement of necessity.

RESEARCH QUESTIONS

1. What is the definition of necessity under easement of necessity and whether it has to be
absolute or a mere convenient mode of enjoyment of property?
2. What is the degree of necessity that is required to claim it as an easement of necessity?
3. What are different types of easements and how do they differ from each other?

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CHAPTERIZATION

This project has three parts. The first part deals with the Easement of Necessity- Definition and
its Application wherein the authors have analyzed the concept of easement of necessity and its
evolution. The first research question is dealt in this Chapter. The second part of the project deals
with the Definition of necessity, wherein the authors have through various judicial
pronouncements have analyzed as to how the definition of necessity has been widened and now
includes a lot more than just enjoyment by land locked property owners. The second research
question is elaborately dealt in this Chapter. The third chapter of the project deals with
distinguishing easement of necessity from quasi easement and customary easement. Here author
has though stated all types of easements, however restricted in elaborating only customary
easement and quasi easement. The third research question is dealt in this chapter. Thus after
analyzing the above chapters, the author has come to the conclusion of how the concept of
easement of necessity has evolved.

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CHAPTER 1: EASEMENT OF NECESSITY-DEFINITION & APPLICATION

Section 13 of the Indian Easements Act, 1882 provides for the Easement of Necessity. Easement
of necessity according to section 13 arises only where by a transfer, bequest or partition, a single
tenement is divided into and separate tenements and any of the separate tenements is so suited
that it cannot be used at all without enjoying an easement over the other such tenement or
tenements.1 The right of easement of necessity does not arise in a case in which the property
becomes useless without an easement being raised in favour of the party claiming it. This
implied only in cases of severance of tenements and unity of ownership of the dominant and
servient tenement at some time or other is essential.2

It is an established proposition of law that the mere fact that the servient and dominant tenements
belong to a common owner does not give rise to an easement of necessity. 3 It must be established
that both the tenements had constituted a single unit and after the severance, the situation of the
dominant tenement became such that it cannot be used at all without the easement claimed in the
suit over the servient tenement.4 In order to find an easement of necessity, the necessity must be
an absolute necessity and not merely a convenient mode of enjoyment of the property. 5In other
words, the easement of necessity is an easement without which the property cannot be used at all
and not merely for reasonable and convenient enjoyment of the property. 6 In Smt. Narayani Devi
v. Phool Chand and anr.7, it has been laid down that this is not the requirement of the law that
before being entitled to claim an easement by way of necessity it must be established by the
plaintiff that the claim is one of absolute necessity in the sense that there should be no other
manner of such enjoyment available in any circumstances whatsoever.8 Section 13 contemplates
that the easement, which is claimed as an easement of necessity, can be claimed as the only

1
Bhutnath Bhunia v. Srimanta Kumar Maity, (2012) 2 CALLT656(HC), 2012(3)CHN412.
2
Santosh kumar banerjee v. Krishan Kant Gupta and another, AIR 1985 Patna 12
3
Mariam Bibi and ans. v. Pradipta Kishore Mohanty and Ors, 106(2008)CLT658, 2008(Supp. 2)OLR901.
4
Id.
5
Smt. Usarani Das v. Bhaktahari Mohanty and others, AIR 1984 Orissa 97. 8
6
Id.
7
Smt. Narayani Devi v. Phool Chand and anr AIR 1981 Allahabad 99.
8
Karbhari & Ors. v. Mr. Devidas, AO Nos. 26, 27/14, MANU/MH/0273/2014
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possible mode of enjoyment of the right claimed having regard to the normal way of life of the
person belonging to this category.9

Under section 13 where a transfers or bequeath, immoveable property to another and an

easement in other immovable property of the transferor is necessary for enjoying the subject of
transfer10, the transferee shall be entitled to such easement and where an easement in the subject
of the transfer in necessary for enjoying other immoveable property of the transferor, shall be
entitled to such easement.11 Where before the transfer of a house, the service latrine in the house
used to be cleaned by the sweeper by approaching it through an adjacent open strip of land
owned by the transferor and the strip was thus open to the enjoyment to the transferor as an
easement of necessity,12 the transferee, a Hindu lady, also would be deemed to have established
easement of necessity in respect of the strip notwithstanding the fact that the sweeper could clean
the latrine by approaching it from within the house. 13 The reason is that the transferee being a
Hindu lady, it is well known that Hindus are generally averse to permitting entry to sweepers
inside the house for the purpose of cleaning a service latrine. 14Easement of necessity arises as the
severance of tenements.15 The rationale or the legal basis of this kind of easement can be traced
to the creation of an implied grant.16 Really, easement of necessity is an easement, which under
particular circumstances the law creates by virtue of the doctrine of implied grant to meet the
necessity of a particular case.17As far as the Indian law is concerned, the contoure of this doctrine
of implied grant to create an easement of necessity are well delineated in the section itself. 18 It
has to be remembered that it is an easement which is not merely necessary for the reasonable
enjoyment of the dominant tenement, but one without which that tenement cannot be used at
all.19 It has to be remembered that an easement of necessity arises where normally both dominant
and servient tenements have been in common ownership so that the creation of an easement by

9
Id.
10
Zafaruddin aka Zafar Qureshi v. Sushil Singh, 2013(2) ADJ 634, 2013(4) ALJ 477, 2013 2 AWC 1152 All, 2013
120 RD637.
11
Id.
12
J.D. Jain, Indian Easements Act, 1882, 63-64, (5th Edn. 2009).
13
Id.
14
Hero Vinoth v. Seshammal, AIR 2006 SC 2234; 2006(4) ALD 28 (SC).
15
Seline v. Mary Varghese and another, ILR2013(1)Kerala372
16
H.P.S.E.B. & Ors. v. Shiv kumar Sharma & Ors., 1999 (2) ShimLC 111
17
Id.
18
Supra note 12
19
Aldridge v. Wright (1929)2 KB 117 CA, Union LighterageCo. v. London Graving Dock Co., (1902) 2 Ch 557
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implication of law can be said to be the outcome of the former jointness of the two tenements. 20
The disposition which causes the cessation of the common ownership that gives rise to the
creation of an easement may be of either tenement, or a simultaneous disposition of both
tenements.21

20
Chinnapillai v. Peruma and Kaliappan, 2004-1-LW469.
21
Maniyan Krishan and another v. Maniyan Nanukuttan, AIR 1986 Kerala 75.
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CHAPTER 2: DEFINING NECESSITY

An enduring controversy has developed between courts over the exact degree of necessity
required before an easement of necessity may be implied. Since the whole concept of Easement
of necessity is dependent on the degree of necessity, it is important to look into the extent and
quantum of necessity required for such easement. In its relevant dictionary definition, necessary
means that which cannot be done without or “absolutely required”. 22 Some Courts held that a
reasonable necessity is sufficient, while other authorities required absolute or strict necessity.
The foreign Courts have often used adjectives of necessity such as strict or absolute or
reasonable to find the degree of necessity in a particular case. 23 With respect to defining the
“necessity” in Indian context the law is settled. In the case of Karunakaran v. Janaki Amma24 it
has been observed that the word “necessity” will have to be construed in its ordinary sense.
When there is another means by which there is access, the question of such an easement will not
arise as all because “necessity” implies that it is not a rule of convenience. Easement of necessity
must be an absolute necessity and not a mere convenient mode of enjoyment of property.
Interpretation of the term “absolute necessity” is highly subjective and differs from facts and
circumstances of each case. Existence of alternative pathway, however inconvenient, is sufficient
to reject the claim of easement of necessity.25 In Krishnamaraju v. Marraju26 it has been
observed that if A has a means of access to his property without going over B‟s land, A cannot
claim a right of way over B‟s land on the ground that it is the most convenient means of access.
An easement of necessity therefore does not mean an easement of convenience of something
whereby your enjoyment of your property is increased, but it must mean a thing without which
you cannot enjoy your property at all.27The Supreme Court in the case of Hero Vinoth v.
Sheshammal28 observed that easement of must be of absolute necessity for it to come under the
category of easement of necessity.

22
Webster’s Third New International Dictionary, 1151 (1971).
23
Bowled v. Chapman, 180 Tenn. 321 (1943).
24
Karunakaran v. Janaki Amma 1988 (2) CCC 137.
25
Mathu Injodikkaran Anthony v. Varied, AIR 1989 NOC 53(Ker); Zachariah v. Kaliyani Amma, (1961) Ker. L.T.
829 relied on; Kali Pada Bose v. Fani Bhusan Roy, AIR 1924 Cal. 363 Disting.
26
Krishnamaraju v. Marraju ILR 28 Mad 495
27
Govind Bhatta v. Rambhatta, AIR 1927 Mad 1963
28
Vinoth v. Sheshammal AIR2006SC2234
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The exact degree of necessity usually varies according to the facts of the particular case, but the
courts will normally consider the circumstances of both parties and then balance the needs of the
claimant against the burden that will be placed on the servient estate. 29This standard is based on
the concept that the property owner is entitled as a matter of public policy to its use for all lawful
purposes, and that to accomplish this goal, a court will lend its hand to establish a right of ingress
and egress where none exists.30

EXTINGUISHMENT OF EASEMENT
An easement of necessity may also extinguish on account of certain actors. Extinguishment in
this context refers to the end of the easement which was gained from the servient estate.
Extinguishment may be by written release of license, by misuse of easement, Elimination of the
original purpose of easement or Abandonment. An easement may be extinguished by express
written releases of servient estate by way of deed or an agreement and in order to be effectual, a
release must be executed with the same formalities as are generally required in making transfers
of interest in land.31 Granting of a licence can extinguish an easement, for example, if the owner
of the easement grants a license to the servient estate to construct something which interferes
with the use and enjoyment of the easement, then the licence becomes a grant and as such when
the licence is executed, it is not revocable. 32 If the easement is used for a purpose different than
originally intended and the result is interference with the proper enjoyment of the remaining
servient estate or original easement, then the easement may be extinguished.33

CHAPTER 3: DISTINGUISHING EASEMENT OF NECESSITY FROM CUSTOMARY

& QUASI-EASEMENTS

29
Hunter C. Carroll, Easements by Necessity: What Level of Necessity is Required?, 19 AMERICAN JOURNAL
OF TRIAL ADVOCACY 475 (1996-1996).
30
Hunter C. Carroll, Easements by Necessity: What Level of Necessity is Required?, 19 AMERICAN JOURNAL
OF TRIAL ADVOCACY 475 (1996-1996).
31
Sedilio Title Guaranty, Inc. v. Wagner, 80 N.M. 429, P. 2d. 361
32
Supra note 12.
33
Phoenix Title and Trust Company v. Smith, 1 Ariz. App. 424 P.2d.
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The definition of different easements, the manner of imposition and acquisition of easementary
rights, the incidents of easements and the remedies in case of interference or disturbance with
easements are governed by the provisions of the Indian Easements Act, 1882. Easement Act
refers to the different methods by which easements are acquired or imposed, that is, namely
easements by grant, easements of necessity, easements by prescription and customary easements.
Acquisition of an easementary right, by any of the aforesaid methods, requires fulfilment of the
conditions prescribed under the Easements Act.36 A private easement, including a right of way
to a person's land or right to take water from a source to his land, cannot be acquired in a manner
not contemplated or prescribed by the Easement Act. 34

Easements by grant require a grant by the owner of the servient heritage.

2. Easements of necessity are based on implied grants or reservations made by the owner of a
servient heritage, at the time of disposition such as transfers and partitions.

3. Quasi easement are based on reasonable enjoyment of the land by the possessor of property
which is partitioned part of which is separated by gift, sale etc.

4. Easements by prescription can be acquired only by peaceable and open enjoyment, without
interruption for twenty years.

5. Customary easement can be are acquired by virtue of a local custom.

Easement of grant and Easement by way of prescription are completely different from easement
of necessity. There is no area for comparison between the same, however quasi easements and
customary easements are similar to easement of necessity and a proper distinction between the
same is necessary. By way of the chapter the author tries to distinguish between Easement of
necessity from these two forms of easements and their enjoyment.

QUASI EASEMENT DISTINGUISHED

Quasi easements and Easement of necessity are defined under the same section under different
subsections. There are many similarities between the two hence a distinction between the same
becomes necessary. Quasi easement is an accommodation as it existed during the common
ownership that must not only be necessary for the enjoyment of the transferred, retained or
34
Smt. Ramkanya Bai and Anr. v. Jagdish and Ors, AIR 2011 SC 3258.
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severed portion, but also must be apparent and continuous during the common ownership till the
transfer bequest or severance.35 The quasi easement is only to the extent it was enjoyed when the
transfer, bequest or partition took effect.36 An apparent easement is one which could be
perceived. Continuous easement is one which is or may be continued without the act of man.
Unless it is also apparent and continuous, quasi easement cannot be claimed simply because it
may be necessary for enjoyment.37 These two conditions viz. apparent and continuous are not
necessary for an easement of necessity. What is required is only that it must be necessary for the
enjoyment. But in cases of easements of necessity the necessity must be absolute in the sense
that without it the property could not be enjoyed in any way or any state much less in the way or
state in which it was enjoyed before. So also, as soon as the necessity ceases the easement of
necessity also gets extinguished. But in the case of a quasi-easement, the necessity is not
absolute, but only qualified.38 It is available even in cases where the property is otherwise
enjoyable. The only condition is that without the easement it is not otherwise enjoyable in the
way in which it was enjoyed till the severance. 39 Hence it can be concluded that quasi easement
is an easement of qualified necessity whereas easement of necessity is an easement of absolute
necessity.40 The primary differences can be observed in the table below

S.NO EASEMENT OF QUASI EASEMENT

NECCESITY
1. The easement is necessary for The easement is meant for
the existence of the dominant better and convenient use of
tenement. the dominant tenement.

2. The exercise of the right must The easement of one property

be absolutely necessary for the is not absolutely necessary for
use of the dominant heritage. the enjoying the other. The
right to enjoyment is a
qualified necessity.
3. It may be continuous or In case of quasi easement it
discontinuous, apparent or has to be apparent, continuous
non-apparent, but it is and more convenient or
necessary to prove necessity reasonable

35
Leela v. Ambujakshy and Ors., AIR 1989 Ker 308.
36
Ponnaiyan v. Karuppakkal, AIR2002Mad443.
37
Kochan Ramanathan v. Kochan Natarajan, 1990(2)KLJ617
38
Id.
39
Supra note 35.
40
Malkajappa Chanvirappa Hullur v. Rachappa Panchappa Guledgud, AIR1942Bom305
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4. Easement of necessity may not The quasi easement claimed

be in existence at the time
when the tenement was
severed.
5. The easement of necessity
arises when the properties
were enjoyed under single
ownership and later has been
divided into two or more parts
and one part or parts requires
easement for the very
existence of such one part.
must be in existence when the
tenement was severed
A quasi easement exists in the
property even before the
property has been divided into
two parts by way of sale,
partition, gift etc.

CUSTOMARY EASEMENT DISTINGUISHED

Section 18 of the Easements Act states that an easement may be acquired in virtue of a local
custom and such easements are called customary easements. However for the court to rule upon
a particular easement as a customary easement the same needs to be specifically pleased and
proof regarding the same needs to adduced.41In this case, admittedly the respondents have not
pleaded that there existed such a custom. Therefore, they are not entitled to avail of the said
provision. On the basis of which, such a custom is peculiar to a town whereby the owner or
occupier of a house cannot open a new window so as to substantially invade the neighbour's
privacy. That requires a clear plea and proof. It can be popularly called as 'localcustom'. As
already indicated above, there is no such plea by the defendant. The law is so certain that the
right of privacy is a customary right not attached to any individual person but to the 'locality'.
But, it can be proved by particular instances in which such right was claimed, recognised or
exercised.42 In cases of well-known customs the Court can take even judicial notice. 43Even the
right to privacy can be pleaded as a customary right and the opening of a window can become as
issue of contention. However the courts do not agree with individuals pleading right of privacy
and that is not available to them. Similar is the view taken by the High Court of Patna in
Prabhavati Devi v. Mahendranarain Singh44 and Andhra Pradesh High Court in Pasitpuleti
Krishnamurthy v. Annadasu Bapanayya45 . The Courts below have not dealt with this question in

41
S. Ramalingam Pillai v. Dhanalakshmi Ammal and Ors. (1984) 1 MLJ 253.
42
Kanbhampati Srihari v. Nallamalli Kanchivaradharanjan and Ors., 1998(1)APLJ138.
43
Syed Habib Hussain v. Kamal Chand, AIR1969Raj31
44
Prabhavati Devi v. Mahendranarain Singh AIR1981Pat133
45
Pasitpuleti Krishnamurthy v. Annadasu Bapanayya 1956, An.W.R. 719
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the light of the settled law. In the absence of clear pleading and proof in support of right of
privacy by the plaintiffs, such a right has been held to be established to grant the reliefs
unjustifiably. A customary right is different from a customary easement and the same needs to
be kept in mind while deciding application for injunction based on customary easements. The
reason is that while it is no doubt true that custom gives rise to a customary right as well as a
customary easement, there is a vital difference between the two as Section 2(b) of the Easements
Act makes it quite clear that the Act does not deal with a customary right. The reason is that
customary rights are rights arising by custom, but appurtenant to a dominant tenement, while a
customary easement can exist only for the beneficial enjoyment of other land and it is
appurtenant to the dominant heritage and cannot exist in gross.46 All the same, where a
customary easement is claimed by virtue of Section 18, the essential characteristics of a custom
bearing on it have to be established. The courts, however, recognized the customary right of
privacy even before the commencement of; the Easements Act, in States or localities where it
was found to exist, and it was only later that it was recognized as an easement under Section 18
of the Easements Act.47 Hence it can be seen that customary easement requires a long standing
understanding that the right exists within the locality or the region and not between individuals
or independent parties as is existent in Easement of Necessity. The burden of proof is much
higher in cases of Customary Easement as dealt under section 18 of the Easements Act. A
detailed distinction is as follows.

SL.NO CUSTOMARY EASEMENT EASEMENT OF

NECESSITY
1. Easement acquired in virtue of Easement absolutely necessary
a local custom for the use of dominant
heritage and not for mere
convenience.
2. A customary easement is An easement of necessity
independent of any dominant exists with a dominant
heritage and is vested in a heritage and is vested in an
defined class or community of individual for his sole benefit.
a particular locality
3. Customary easements are Easements of necessity are
public rights annexed to a private rights.
place in general
46
Ramchandra Singh v. Pratap Singh. 1LR (1965) Raj 948 : AIR 1965 Raj 2171
47
Supra note 43.
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4. Customary easement must be Easement of necessity must be

reasonable absolutely necessary.
5. Must be ancient, continuous, Must be absolutely necessary
reasonable, certain and due to splitting of the parent
compulsory property by partition, sale, gift
etc.
6. There is no express or implied
grant There is express or implied
grant.
7. Origins of customary easement Origins of the easement are
may not be necessary necessary to grant the same.

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CHAPTER-4: JUDICIAL INTERPRETATIONS

1. Easement of necessity when arises: In order to find necessity the necessity must be
absolute necessity. In the case of Usarani Dass,Sm. V. Bhaktabhari Mohanty48 it was held
that the mere fact that the servient and dominant tenements belong to common owner
does not give rise to an easement of necessity. It must be established that both of them
had constituted a single unit and after the severance, the situation of a dominant tenement
became such that it could be used at all without the easement claimed in the suit over the
servient tenement. None of the said elements have been proved in this case and hence no
easement of necessity can be found in favour of defendants. An easement of necessity i
an easement without which the property cannot be used at all and not merely for
reasonable and convenient enjoyment of property.
2. In case of Thottathil Thamasikkum Ceootty v. Puliyaratharayil Velayudhan Nair 49- it was
held that as the plaintiff has no right easement of necessity and also easement by
prescription, he cannot claim that he is entitled to walk through the particular portion of
defendant’s property, so as to cause hardship to the defendant. The first appellate court
went wrong in appreciating the evidence on record. In the result the second appeal is
allowed, the decree and judgement o h first appellate court are set aside.
3. Easement of Necessity how arises- In the case of Maniyan Krishnan v. Nanukuttan,50- it
was held that an easement of necessity arises normally where both the dominant and
servient tenements have been in common ownership so that the creation of an easement
by implication of law, may be said to be he outcome of the former jointness of two
tenements. The disposition which causes a cessation of common ownership that gives rise
to creation f an easement, may be either tenement, or a simultaneous disposition of both
the tenements.
4. Easement of necessity cannot be claimed in respect of property other than severed
portion- In the case of Mirza Ahmad Jan v. Kh. Ghulam Hasan51 e question is whether
the plaintiff can ask the defendant to give him right of passage from his other property
48
A.I.R. 1984 Orissa 97 a pp. 102,104
49
A.I.R.1998 Ker. 164 at P. 167.
50
A.I.R. 1986 Ker. 75.
51
AIR 1944 Lah 417 at p.419
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which had been sold by him to the defendant under the same sale deed. It was held by the
court that an easement of necessity can only arise on a severance of tenement.
5. Requirement of animus for an easement- in the case of Qazi Mohamad Isha v. Abdu
Wahed,52 it was held that sine there can be no easement without animus and a mere
passage by license would not entitle the claimant to the right of easement unless he can
prove that he has been doing act as of right, the contention that he exercised the right
because he was a joint owner will destroy the claim of easement. The two contents are
self- destructive and would disentitle the defendant- respondent to a finding that the right
in question had been prescribed by him or he was entitled to it because of necessity.
6. In the case of Asha Devi v. Govind Singh53 it was observed by the court that even if the
plaintiff has enjoyed the right of easement for more than twenty years, he can maintain a
suit by filing he same within two years of challenge/ contest made by servient owner to
the right of dominant owner.
7. In the case of Muncipalty of city of Poona v. Vaman Rajaram Gholop 54 it was held that
a Man annot acquire by a way of necessity, if he has other means of access to his land,
however inconvenient it may be, than by passing over his neighbour’s soil. A purchaser
of a plot of land, adjoining his own land and having access to it from his own land,
cannot acquire a way of necessity over the vendor’s land. The question will not be
affected by the fact that, if a stranger had bought the land, he could have acquired a way
of necessity.
8. In the case of Wutzler v. Sharpe55 it was observed by the court that an easement of way,
claimed as a way of necessity, can only be created where there is an absolute necessity
for it, and not when thee is possibility of finding out another way, though a greater
expense.
9. In the case of Gurram Sanappa v. Guram Pedda thippaiah56in the instant case both the
courts had recorded findings that the existence of alternative way to reach the lands had
not been established and the oral evidence let in by the defendant also had been

52
1975 Pakistan L.D.82 at P.97
53
AIR. 2013 Uttar. 117 at p. 120
54
I.L.R. 19 Bom 797
55
I.L.R 28 Mad. 495
56
AIR 2007 A.P. 112 at p. 115.
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appreciated and the same had been negative. Court held that convenience is not the test of
an easement of necessity. The law in India in this respect is the same as in England.
10. Grant of easement of necessity regarding passage- Recently in the case of Thomas
Ambrose v. Ramdas Balmiki57 the plaintiff has stated thata common passage of 8 feet in
width is situated n front of the house of plaintiffs well as defendant is being used by
them. However in evidence he has stated that width is 4 feet 6inch. He again admitted
that he has not adduced any evidence to show that the passage in dispute i situate on the
land which belongs to Municipal Corporation, Jabalpur, and that the washroom was
construed by the defendant on the passage in dispute 15 years ago. From the report of
commission it was seen that the alternative way was available to plaintiff to approach his
house apart from passage in dispute which was not being used by him. Thus the plaintiff
cannot be granted easement of necessity as an alternative passage is available to him.

57
AIR 2013 M.P. 187 at p. 189.
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CONCLUSION

The easement of necessity is one in which the easement is indispensable to the enjoyment of the
dominant estate. Such arises by operation of law when land conveyed is completely shut off from
access to any road by land retained by granter or by land of grantor and that of a stranger. For
claiming the easement of necessity, the degree of necessity has to be shown. The requirement for
such property or passage is the only way in which the property can be enjoyed has to be
established for easement of necessity. As it has been held by Supreme Court and various High
Courts, the degree of necessity will vary from case to case basis, depending upon the facts and
circumstances of each case, as the same is highly subjective in nature. But the necessity must be
an absolute one and not a convenient mode of enjoyment. Being an absolute necessity, the
easement is entitled to be granted as a matter of public policy and for the purpose of enjoyment
of the property. The easement of necessity is different from that of customary easement and
quasi-easements. Where quasi easement is meant for better use and convenient of the property,
necessity easement remains the only way to enjoy the property. And customary easement is also
separable from necessity, where customary easement is generally acquired by way of custom as
discussed in detail in the previous chapter. The easement of necessity is an old principle, evolved
to allow the properties, generally land-locked to be enjoyed. The easement of necessity may also
include water passage, electricity, light, air etc. With time, wide range of necessity has evolved
but each has to be judged on the basis of the facts at hand. Hence in conclusion it can be said that
the principle of Easement of necessity shows the foresight of the drafters as to the requirement of
enjoyment certain immovable properties need and how the same can be justified on the basis of
absolute necessity. It shows that a person can enjoy a particular property without having an
ownership rights only on the basis of absolute necessity.

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BIBLIOGRAPHY

Cases

Aldridge v. Wright (1929)2 KB 117 CA.........................................................................................5

Asha Devi v. Govind Singh...........................................................................................................16
Bhutnath Bhunia v. Srimanta Kumar Maity, (2012) 2 CALLT656(HC), 2012(3)CHN412...........4
Bowled v. Chapman, 180 Tenn. 321 (1943)....................................................................................7
Chinnapillai v. Peruma and Kaliappan, 2004-1-LW469.................................................................6
Govind Bhatta v. Rambhatta, AIR 1927 Mad 1963........................................................................7
Gurram Sanappa v. Guram Pedda thippaiah..................................................................................16
H.P.S.E.B. & Ors. v. Shiv kumar Sharma & Ors., 1999 (2) ShimLC 111......................................5
Hero Vinoth v. Seshammal, AIR 2006 SC 2234.............................................................................5
Kanbhampati Srihari v. Nallamalli Kanchivaradharanjan and Ors., 1998(1)APLJ138................12
Karbhari & Ors. v. Mr. Devidas, AO Nos. 26, 27/14, MANU/MH/0273/2014..............................4
Karunakaran v. Janaki Amma 1988 (2) CCC 137...........................................................................7
Kochan Ramanathan v. Kochan Natarajan, 1990(2)KLJ617........................................................10
Krishnamaraju v. Marraju ILR 28 Mad 495....................................................................................7
Leela v. Ambujakshy and Ors., AIR 1989 Ker 308.......................................................................10
Malkajappa Chanvirappa Hullur v. Rachappa Panchappa Guledgud, AIR1942Bom305.............10
Maniyan Krishan and another v. Maniyan Nanukuttan, AIR 1986 Kerala 75................................6
Maniyan Krishnan v. Nanukuttan..................................................................................................15
Mariam Bibi and ans. v. Pradipta Kishore Mohanty and Ors, 106(2008)CLT658, 2008...............4
Mathu Injodikkaran Anthony v. Varied, AIR 1989 NOC 53(Ker);................................................7
Mirza Ahmad Jan v. Kh. Ghulam Hasan.......................................................................................15
Muncipalty of city of Poona v. Vaman Rajaram Gholop..............................................................16
Pasitpuleti Krishnamurthy v. Annadasu Bapanayya 1956, An.W.R. 719.....................................12
Phoenix Title and Trust Company v. Smith, 1 Ariz. App. 424 P.2d...............................................8
Ponnaiyan v. Karuppakkal, AIR2002Mad443...............................................................................10

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Prabhavati Devi v. Mahendranarain Singh AIR1981Pat133.........................................................12

Qazi Mohamad Isha v. Abdu Wahed.............................................................................................16
Ramchandra Singh v. Pratap Singh. 1LR (1965) Raj 948.............................................................12
S. Ramalingam Pillai v. Dhanalakshmi Ammal and Ors., (1984)1MLJ253.................................12
Santosh kumar banerjee v. Krishan Kant Gupta and another, AIR 1985 Patna 12.........................4
Sedilio Title Guaranty, Inc. v. Wagner, 80 N.M. 429, P. 2d. 361...................................................8
Seline v. Mary Varghese and another, ILR2013(1)Kerala372........................................................5
Smt. Narayani Devi v. Phool Chand and anr AIR 1981 Allahabad 99...........................................4
Smt. Ramkanya Bai and Anr. v. Jagdish and Ors., AIR2011SC3258.............................................9
Syed Habib Hussain v. Kamal Chand, AIR1969Raj31.................................................................12
Thomas Ambrose v. Ramdas Balmiki...........................................................................................17
Thottathil Thamasikkum Ceootty v. Puliyaratharayil Velayudhan Nair.......................................15
Union LighterageCo. v. London Graving Dock Co., (1902) 2 Ch 557...........................................5
Usarani Dass,Sm. V. Bhaktabhari Mohanty..................................................................................15
Wutzler v. Sharpe..........................................................................................................................16
Zafaruddin aka Zafar Qureshi v. Sushil Singh, 2013(2)ADJ634....................................................5

Other Authorities

Webster's Third New International Dictionary................................................................................7

Books

J.D. Jain, Indian Easements Act, 1882, 63-64, (5th Edn. 2009)......................................................5

Journal

Hunter C. Carroll, Easements by Necessity: What Level of Necessity is Required?, 19

AMERICAN JOURNAL OF TRIAL ADVOCACY 475 (1996-1996)......................................8

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