JUDGMENT Mookerjee, J. - The subject matter of the litigation, which has culminated in this appeal, is a family dwelling house, at one time the property of Harimohan Haldar. He died in or about the year 1890, and left a widow Giribala who was made the second defendant in this suit but has died during its progress. Harimohan also left two sons by a predeceased wife, namely, Amritalal Hallar and Raj-kumar Haldar, who inherited his properties in equal shares. Amritlal died in 1839 and left a widow Sarojini, the first defendant in this suit; during the pendency of the litigation, she made a gift of her right, title and interest in the disputed properly to her brother Satyeudranath Banerjce who was thereupon added as the fifth defendant. Rajkumar died in 1903, and left three sons Hiralal, now deceased, Jaharlal, who is the third defendant, and Krishnalal, the plaintiff. The share of Hiralal has been transferred by his widow Arunbala to Panchanan Saha, the fourth defendant. The family dwelling house was petitioned in the first instance as between the branches of Amritlal and Rajkumar, by an award of arbitrators which was pronounced on the 7th july, 2007 and was made a rule of Court on the 9th August, 1907. Later on, a partition was effected amongst the sons of Rajkumar by an award of arbitrators which was made on the 22nd June, 190, and was confirmed by a decree of Court on the 1st October, 1900. The dispute in the present- litigation relates to the allotment made to-Sarojini, the widow of Amritalal, under the first arbitration award, and the allotment given to Krishnalal the son of Rajkumar, by the second arbitration award. In the eastern wall of the portion of the house allotted to Sarojini, there are three openings on the ground floor and four on the first floor. Of the three openings on the ground floor, two are windows and one is a door; of the four openings on the first floor, one was a widow and three were doors ac the time of the partition; two of the doers have since them been converted into windows, so that at the time of the suit there were on the first flour wail three windows and one door. The existence of the window and the doors on the ground fleer and on the firs, floor render it possible for people in the portion of the Louse occupied by the first defendant, to obtain access to the premises now field by the plaintiff, to overlook his rooms and to destroy his privacy. The plaintiff accordingly erected walls on his own land 10 stop these openings, but they were demolished by force by the first defendant. The plaintiff has accordingly instituted this suit, for declaration of his right to obstruct the doom and windows and for an injunction restraining the first defendant from interference with the construction and maintenance of the wall which he proposes to erect. The defendant denied the right of the plaintiff to obstruct the door and windows in any manner. The Subordinate Judge has held that the plaintiff was entitled to obstruct the doors and windows, but only by the erection of wooden structures with blinds fixed up and he has made a decree accordingly. On the present appeal, the first defendant has contended that the plaintiff was not competent to obstruct at all the doors and windows. The plaintiff on the other hand, has presented a memorandum of cross-objection and has urged that he cannot be compelled to adopt a prescribed method for the obstruction of the doors and windows, and, that, if he so chooses, he may for the purpose, erect a brick wall on his land instead of a wooden structure. The principle applicable to cases of this character is well known and was explained recently in the case of Tustee Mondal v. Renaram Mondal [1921] 34 C.L.J. 518. But before we deal with the question, it may be useful to point out, as was done by Lord westbnry in (sic) v. Jomes [1865] 11 H.L.C. 305, that the expression "right to obstruct" lias a tendancy to mislead. 'If my adjoining neighbor builds upon his land and opens numerous windows, which look over my gardens or pleasure grounds. I do not acquire from this act of my neighbour any new or other right than I before possessed. I have simply the same right of building or raising any erection I please on my own land, unless that right has been, by some antecedent matter, either lost or impaired, and I gain no new or enlarged right by the act of my neighbour". I have simply the same right of building or raising any erection I please on my own land, unless that right has been, by some antecedent matter, either lost or impaired, and I gain no new or enlarged right by the act of my neighbour". The erection of a wall or other obstacle is, indeed, the only remedy available to a landowner, if he is annoyed by the opening of new windows overlooking his ground; he can maintain no action nor can he obtain other relief at law or in equity; in building to obstruct new windows, however, he nm-t be careful to avoid obstructing ancient lights Re Penny and SB Ry Co. [1857] 7 E.&B. 660; 110 R.R. 773; Turner v. Spconer [1861] I Dr.&Sm. 467; 127 R.R. 192; Chandler v. Thompson [1811] 2 Cam 80; 13 R.R. 756. To put the matter briefly, every one may build upon or otherwise utilize his own land, regardless of the fact that his doing so involved an interference with the light which would otherwise reach the land and building of another person. On the other hand, every man may open any number of windows looking over his neighbour's land, for the interference with a neighbour's privacy or with his prospect, does not, by itself, give the latter a cause of action, in the absence of other circumstances. If windows are so opened, the neighbour may, by building on his own land, obstruct the light which would otherwise reach them. The problem, therefore, which really arises in this case is, whether the first defendant has acquired the right to use unobstructed the doors and windows. It is not disputed that she has not acquired such a right by prescription by lapse of the statutory period since the date of the partition. Consequently, the question reduces to this, whether such right was impliedly reserved in her favour at the time of the partition. 2. It may be stated as a general rule that whether a grant of an easement arises by implication on a conveyance of land depends on the intent of the parties, which must clearly appear; in order to determine the intent, the Court will take into consideration the circumstances attending the transaction, the particular situation of the parties and the state of the thing granted. This principle holds only where there is no express contract relating to the matter; for, where there is a valid express agreement fairly made, the law does not indulge in presumptions, and the rights of the parties will be upheld according to the terms of such agreement; in such circumstances, no question arises as to grant of easement by implication. 3. Thus, where the owner of an entire tract of land, or of two or more adjoining parcels employs a part thereof, so that one derives from the other a benefit or an advantage of a continuous and apparent nature, and sells the one in favour of which such continuous and apparent quasi-easement exists, the easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication; Ewart v. Cochran (1861) 4 Mac H.L. 117; J 23 R.R. 938, Suffield v. Brown (8864) 4 De G&S. 185; 146 R.R. 267 Wheeldon v. Burrows (1879) 12 Ch D. 31 ;Bayley v. Great Western Ry. Co. (1884) 26 Ch D. 434 Brown v. Alabaster (1887) 37 Ch. D. 490 Wattas v. Kelson (1871) L.R. 6 Ch App. 166 Swan v. Cotton (1916) 2 Ch. 459. The reasons for this rule have been formulated in a variety of ways: (i) where a man grants a thing he grants with it everything necessary to its enjoyment; (ii) a grantor cannot derogate from his own grant; (iii) the grant should be construed against the grantor, so far as to pass the privileges annexed by himself to the property conveyed; (iv) if, at the time of the transfer, there are visible and apparent easements and privileges annexed to it, necessary for its reasonable enjoyment, it must be assumed that they were taken into consideration when the price was fixed. It has been maintained that these reasons, as also the rule founded thereon, become inapplicable where the tenement in respect of which the easement is claimed is carved out for the first time from the entirety, by the deed relied upon, and is substantially different from that in connection with which the easement had formerly been enjoyed : Horsfall v. Braye (1908) 7 Com. L.R. 629. 4. L.R. 629. 4. The principles just mentioned have been applied to cases of transfer of two tenements, and it has been ruled that if the owner of an estate, part of which is quasi dominant and part quasi servant transfers the two portion to two different persons, the respective transferees will take the portions granted to them, burdened or benefited, as the case may be, by those rights in the nature of apparent and continuous easement which the previous owner had the right to attach to them Barnes v. Lach (1879) 4 QB.D. 494; Atlen v. Taylor (1880) 16 Ch. D. 355 This rule is held applicable where there are several grants, not absolutely at the same moment, but so far at the same time that they are considered as one transaction ; Russell v. Watts (1883) 25 Ch. D. 559; (1885) 10 App. Cas. 590. 5. Analogous to the creation of easements by severance of unity of possession at common law, is the creation by what is known as divination du pere de famille under the civil law, in other words, the disposition or arrangement which the proprietor of several heritages has made for their respective use see the judgment of Lord Westbury in Suffield v. Brown (8864) 4 De G and S. 185; 146 R.R. 267. Under the civil law, if the owner of two estates, between which there exists an apparent sign of servitude, sells one of those estates and if the deed of sale is silent respecting the servitude, the same continues to exist, actively or passively, in favour of or upon the estate which has been sold. The Civil law thus does not (sic) a distinction analogous, (sic) ween implied grant (sic) reservation at the Com (sic) latter rule, as explained (sic) reviewed in (sic) been very much (sic) years, if not (sic). 6. The doctrine (sic) ready explain (sic) cases of partition (sic) and it has been (sic) rule is the (sic) share (sic) maner (sic) quasi (sic) for the (sic) at the dean (sic), unless the existence of (sic) easement has been discontinued by the heirs before partition, or unless "provision is made in the partition for a discontinuance; see Nicholls v. Nicholls (1899) 81 L.T. 811. The substance of the matter is that permanency, continuity and necessity are all essential qualities of the easement or accommodation claimed by implied grant. The substance of the matter is that permanency, continuity and necessity are all essential qualities of the easement or accommodation claimed by implied grant. There has been some apparent divergence of judicial opinion as to the decree of necessity required, and it is plain that no inelastic formula can be framed to comprehend all concrete cases. The test is not whether the easement or accommodation will make the enjoyment convenient, but whether it is necessary for the comfortable enjoyment of the property as it existed at the time of the severance of the title Ewort v. Cochrane (1831) 4 Mac H.L. 117. 123 R.R 938; Union Lighterage Co. v. London Graming Deck Co. (1902) 2 Ch. 557; Roy v. Hozelaine (1904) 2 Ch. 17; Schwanu v. Cotton (1887) 37 Ch. D. 490 (sic)erry v. Sanders (1919) 1 K.R. 223; Gordon v. Oailvie (1899) 15 T.L.R. 239; Whedlon v. Barouhs (1879)12 Ch. D. 31; Richard v. Rose (1853) 9 Exch. 218: 96 R.R. 675. We may take it then as well settled that on a severance of tenements by a partition of joint property, and in the absence of contrary intention, expressed or necessarily implied, all such easements is are apparent, continuous and necessary for enjoying any of the undivided shares when the partition was effected, pass to the coparceners to whom such shares are respectively allotted in severalty. This view is supported by the decisions in Bolye v. Lalmoni (1887) 14 Cal. 797 Dwaraka Nath v. Sunder Lal (1881) 3 C.W.N. 407 & Kodambini v. Kali Kumar (1899) 26 Cal. 516 (sic) v. Elalji (1871) 8 Bom. H.C.R. 181; Purshotam Durgajee (1890) 14 Bom. 452 ; Krishnamaruzu v. Murarju (1905) 28 Mad. 495. Reference may in this connection he also made to section 13 of the Indian Easements Act and illustrations (d), (e) (f) and (m) appended thereto, which, though not directly applicable, may be regarded as enunciating principles of justice, equity, and good conscience: Kodambini v. Kali Kumar (1899) 26 Cal. 516. The statutory provisions mentioned make necessity an essential test. 7. Tested in the light of these principles the case for the first-defendant completely breaks down. 516. The statutory provisions mentioned make necessity an essential test. 7. Tested in the light of these principles the case for the first-defendant completely breaks down. The Subordinate Judge, upon a careful review of the evidence recorded before him and after inspection of the promises on two occasions at the request of the parties, came to the conclusion- that the retention of the does and windows was not necessary for the use by the defendant of the rooms allotted to her. He has taken the rooms, one by one, considered its situation, and given adequate reasons for his conclusion that the rooms could be comfortably occupied, even if the doors and windows in dispute were closed. The only serious dispute was as regards what is called the middle room. There is no doubt that the room would have sufficient light at ail times of the day, even if the windows should be closed. There-would also be sufficient ventilation for habitable or sanitary purposes, but the defendant urge I that if the casern windows were closed there-might not be a continuous current of air. The Subordinate Judge overruled this contention and held, on the authority of the decision of Peterson, J. in Barrow v. Archer [1863] 2 Hyde 125, that if the light were sufficient, the access of air might be presumed to be sufficient. This may not always be strictly true, for the grounds upon which the Court will restrain the obstruction of light may sometimes differently from the grounds upon which it will restrain the obstruction of air: City of London Co. v. Tennant [1873] L.R. 9 Ch. App. 221; Buter v. Bower [1875] 41 L.J. Ch 625, although generally speaking, the modes in which a right to the access of light and a right to the access of defined air can be acquired are similar: Cable v. Brgant [1903] 1 Ch. 203. But, apart from this, tho principle established in Webb v. Bird [1861] 10 C.B.N.S. 268; 128 R.R. 707 (1863) 33 C.B.N.S. 841; 134 R.R 756, was applied in this country in Barrow v. Archer. [1861] 10 C.B.N.S. 268; 128 R.R. 707 : (1863) 33 C.B.N.S. 841; 134 R.R 756 where the plaintiff claimed the right to have the south wind blow on to his premises free from all obstruction. [1861] 10 C.B.N.S. 268; 128 R.R. 707 : (1863) 33 C.B.N.S. 841; 134 R.R 756 where the plaintiff claimed the right to have the south wind blow on to his premises free from all obstruction. The Court declined to give effect to this argument, on the ground that it was necessary for it to see that the servant tenement was not made subservient to more than the law required. A similar claim was negatived by peacock, C.J. in Bagram v. Khetra nath Karformah [1869] [1869] 3 B.LR. O.C.J. 18 (46), and the same principle was followed in the case of Daihi and London Bank Ltd. v. Hem Lal [1887] 14 Cal. 839. The substance of the matter is that, there is no easement for the free access of wind. Webb v. Bird [1863] 13 C.B.N.S. 841; 134 R.R. 756 Gondman v. Gore [1612] Godbolt 189; cited in Webb v. Bird [1861] 10 C.B.N.S. 268 : (273) 128 R.R. 707. We have thus on the one hand, the fact that the doors and windows are not necessary for the enjoyment of the rooms allotted to the defendant, and on the other hand, the fact that their continuance is destructive of the security and privacy of the portion of the premises allotted to the plaintiff. In such circumstances, the defendant cannot invoke the aid of the principle of an implied grant of easement in her fevour upon severance of the tenements by partition. This, how ever, inevitably leads to the inference that the plaintiff cannot, be restricted in his choice of the method he might adopt for the obstruction of the doors and windows, and his cross-objection must consequently prevail. 8. The result is that this appeal is dismissed and the cross-object ion allowed. The decree of the Subordinate Judge will be modified so as to entitle the plaintiff to close all the doors and windows by the erection of walks or such other structures as he may choose, to place en his own land Subject to this variation, the decree made by the Subordinate Judge will stand confirmed. The appellants will pay the plaintiff respondent his costs in this Court We assess the hearing fee at five gold mohurs.