Mohini Debi v. Ramdas Banerjee — 1973 DIGILAW 226 (CAL)

JUDGMENT L. M. Ghosh. J. The right of way over the road mentioned in Schedule 'A' of the plaint with which we are concerned, is the subject-matter of the dispute in this Letters Patent Appeal. The dispute is going on for over three decades and it passed through three courts. The trial court dismissed the plaintiff's suit. On appeal, the learned Subordinate Judge, Asansol, who heard the appeal, dismissed the appeal and affirmed the judgment and decree of dismissal of the trial court. There was a second appeal to this court and the learned Single Judge, who heard the second appeal, dismissed the appeal, thus maintaining the judgment and decree of the lower appellate Court. This Letters Patent Appeal has been preferred against the judgment of the Single Judge of this court. 2. It is not disputed that the 'A' 'B', 'C' and 'D' Schedules of lands described in the plaint of the suit filed in the court of the Munsif, Asamol, belonged to Shri Anil Kumar Raha. The 'A' Schedule property is the disputed road or common passage. The plaintiff purchased the 'B' Schedule property of the plaint by cobala dated 20.153 (Ext. 1). According to the plaintiff, when she purcharsed the 'B' Schedule property, she was granted at the same time the right of way and passage over the land and read mentioned in Schedule 'A' of the plaint from the western extremity of the 'A' Schedule road and land upto the western extremity of the 'b' Schedule land. The 'C' Schedule property was transferred by the said Anil Kumar Raha to the proforma defendant by a coveyance dated 18 1250. It was pleaded in the plaint that similar right of passage over the 'A' Schedule property was granted in favour of the proforma defendant. Then again, by another conveyance dated 31st of January, 1967, the said Anil Kumar transferred to the defendant no. 1 the "D" Schedule property of the plaint. It was alleged that the defendant no. 1 took the property in the benami of his mother, the defendent no.2 In 1953, the plaintiff built her house on the 'B' Schedule property. As stated in the plaint, at that time Anil Kumar Raha assured the plaintiff that she would have right of passage for both vehicular traffic and footway over the 'A' Schedule road. 1 took the property in the benami of his mother, the defendent no.2 In 1953, the plaintiff built her house on the 'B' Schedule property. As stated in the plaint, at that time Anil Kumar Raha assured the plaintiff that she would have right of passage for both vehicular traffic and footway over the 'A' Schedule road. It was also mentioned in the point that the principal defendents land 2 purchased the 'D' Schedule property in 1957 with full and clear knowledge of the pre-existing right and title of the plaintiff and the proforma defendant with regard to the 'A' Schedule road. The plaintiff built the main gate abutting the 'A 'Schedule road. It was stated that that was the only way of entrance for cars and vehicles into the premises of the plaintiff. The troubles started when the defendants land 2 began to deny the right of way of the plaintiff and of the proforma defendant. The plaintiff alleged that the defendants 1 and 2 were making preparation to block the passage so as to prevent her and the proforma defendant from passing over and plying their cars over the 'A' Schedule road. So the plaintiff filed the suit for declaration of her right of way over the 'A' Schedule property and for permanent injunction for restraining the defendants 1 and 2 from blocking the road. The defence of the defendants 1 and 2 was that there was never any grant in favour of the plaintiff in respect of the 'A' Schedule property. It was also contended that the stipulation in the plaintiff's sale deed by Anil Kumar Raha that she would have in future a right of way over the private road from the point of time when Anil Kumar Raha would cease to have any right over the same and in the main building to its north, was illegal and void, offending the rule against perpetuities. 3. The proforma defendant also filed a written statement. She mentioned that she filed a suit against the defendants for the identical reliefs. She prayed for treating the plaint of that suit as her written statement in the suit with which we are concerned. Only the principal defendants contested the suit. 4. The learned Munsif, who decided the suit, held that no present easement right of passage over the 'A' Schedule property was created in favour of the plaintiff. She prayed for treating the plaint of that suit as her written statement in the suit with which we are concerned. Only the principal defendants contested the suit. 4. The learned Munsif, who decided the suit, held that no present easement right of passage over the 'A' Schedule property was created in favour of the plaintiff. According to him, the said grant in the plaintiff's kabala was a mere contingent right or interest. In a passing way the learned trial court also observed that the rule against perpetuity hit the said grant. Then the learned trial court also rejected the plaintiff's claim of easement of necessity and by implied grant. The case of quasieasement, advanced on behalf of the plaintiff, was also rejected by the learned Munsif. Last of all, the It learned trial court held that no easement right in gross could also be claimed. On these findings, the learned Munsif dismissed the plaintiff's suit. 5 The learned first appellate court also held that no present easement right was created by the stipulation in the plaintiff's kobafa. Then the learned first appellate court held that the rule against perpetuity applied and affected the plaintiff's case. The learned first appellate Court also held that no easement by implied grant or easement of necessity could be claimed. The result was that the learned first appellate court dismissed the appeal, upholding the judgment and decree of the learned trial court. 6 In the second appeal in this court, the only question that was argued related to the legality and validity of the grant of the easement right of way over the 'A' Schedule road. The learned Single Judge of this Court decided that the grant of an easement right of way which was to arise on an uncertain date, on the happening of a contingency beyond the perpetuity period, was hit by the rule against perpetuities. He father found that in the case in h and also, such a right was created by Ext 1 and it was hit by the rule. Leave to appeal under Clause 15 of the Letters Patent was granted by His Lordship. So this Letters Patent appeal comes up for consideration by this Bencb. 7. Mr. Mukherjee, the learned Advocate for the appellant, has contended that the rule against perpetuity, as embodied in s. 14 of the Transfer d Property Act has no application. Leave to appeal under Clause 15 of the Letters Patent was granted by His Lordship. So this Letters Patent appeal comes up for consideration by this Bencb. 7. Mr. Mukherjee, the learned Advocate for the appellant, has contended that the rule against perpetuity, as embodied in s. 14 of the Transfer d Property Act has no application. His contention has been two fold; the Transfer of Property Act has no application to easement rights and further that in this case, there was no transfer at all, but only creation of a right of easement by grant. 8. Mr. Mitter, the learned Advocate for the respondent, on the other hand, has argued that the rule against perpetuity is attracted in this and the said grant in favour of the plaintiff by Ext.1 is hit by this rule. He has cited several decisions in support of his contention. 9. We are, therefore, to examine whether the said grant in favour of the plaintiff is h it by s. 14 of the Transfer of Property Act. We find that a very old Bench decision of this court clarifies the position clearly. That decision is reported in 20 CWN 1158 (Sital Chandra Chowdhury v. Delanney). It is held in that decision that the provisions of the Transfer of Property Act have no application to the creation of easements. This decision was cited before the learned single Judge of this court but was not relied upon by His Lordship. His Lordship, hearing the second appeal, observed that the decision in 20 CWN 1158 was rendered in connection with the question whether the easement right claimed therein was a sale under s. 54 or a gift under s. 123 of the Transfer of Property Act. The learned Sing It: Judge, hearing the second appeal pointed out that in 20 CWN 1158, it was held that the transaction in question was neither a sale nor a gift and accordingly, it did not require any instrument in writing and registration. The learned Single Judge also observed that in Sital Chandra's case there was no question before the Bench as to the applicability of the provisions of s. 14. His Lordship, Murari Mohan Dutt, J. of this Court (as he then was) felt that the observation made in Sital Chandra's case meant that provisions of ss. The learned Single Judge also observed that in Sital Chandra's case there was no question before the Bench as to the applicability of the provisions of s. 14. His Lordship, Murari Mohan Dutt, J. of this Court (as he then was) felt that the observation made in Sital Chandra's case meant that provisions of ss. 54 and 123 of the Transfer of Property Act did not apply to the creation of an easement right. That is to say, His Lordship meant that the observations in Sital Chandra case was merely obiter dictum In taking that view, he found support from a decision reported in 69 CWN 503. On an examination of the matter, we find that the observation in Sital Chandra's case as to the applicability of the Transfer of Property Act to a case of easement cannot be considered obiter At page 1163 left hand column of Sited Chandra's case, Their Lordship' observed, "there still remains the question whether the act of the landlord in creating the easement is governed by the Act". Then it is observed further that we are about to say, however, is as applicable to s. 54 as to s. 123." In the opinion of Their Lordships in Sital Chandra's case, the provisions of the Transfer of Property Act could have no application to the creation of easements for the simple reason that the Act was not intended to deal with that topic. Their Lordships pointed out that even after the passing of the Transfer of Property Act, the legislature passed another Act, the Indian Easement Act. The fact that the Transfer of Property Act was immediately followed by the Easements Act and the other facts, all indicted, according to their Lordships in 20 C.W.N. 1158, that great caution should be used before applying to easements general provisions such as those contained in Sections 54 and 123 of the Transfer of Property Act. We can not accept the principle that' the observation in Sital Chandra's case as to the applicability of the Transfer of Property Act to an easement right was obiter. It might have been the position in that case that it was neither a sale nor a gift, still whether the Transfer of Property Act itself could have any application was a very pertinent question before considering the applicability' of ss. 54 and 123 of the Transfer of Property Act. It might have been the position in that case that it was neither a sale nor a gift, still whether the Transfer of Property Act itself could have any application was a very pertinent question before considering the applicability' of ss. 54 and 123 of the Transfer of Property Act. Those provisions could have no application on the ground that there was no sale or gift, but also on the ground that the Transfer of Property Act itself, containing the provisions, did not apply. The applicability of the Transfer of Property Act itself, for consideration of the applicability of ss. 54 and 123 of the Act, was a relevant and pertinent question. If the Act itself does not apply, the provisions of that Act cannot have any application. We are not prepared to accept that the observations made in Sital Chandra's case was obiter. In 69 C. W. N. 503, it was observed that the observation in Sital Chandra's case was entirely an obiter. The case reported in 69 C.W.N. 503 is a Single Bench judgment and we are of the view that the observation made therein with regard to Sital Chandra's case is itself an obiter. 69 C.W.N. 503 case was relating to whether a certain right claimed was easement or licence. His Lordship in 69 C.W.N 503 held that it was a case of licence. Such having been the finding the consideration of Sital Chandra case relating to the applicability of the Transfer of Property Act to an easement was not necessary and so the observation made therein relating to Sital Chandra case must be held obiter Salmond in his Jurisprudence has commented that observation made by the way, can be called obiter or obiter dicta. Sital Chandra's case decided the principle clearly and the observations made with regard to the applicability of the Transfer of Property Act were not by the way. We feel that Sital Chandra's case must be considered as laying down the law. 10. Mr. Mukherjee has referred to another decision reported in AIR 1929 Madras 79 It has been held that the creation of a right of easement by grant is not such a transfer of ownership as is contemplated by s.54 of the of the Transfer of Property Act. 10. Mr. Mukherjee has referred to another decision reported in AIR 1929 Madras 79 It has been held that the creation of a right of easement by grant is not such a transfer of ownership as is contemplated by s.54 of the of the Transfer of Property Act. It is also observed that the provisions of the Transfer of Property Act have no application to the creation of easements and the Act was not intended to deal with them. That is also an authority for the principle that the creation of a right of easement by grant is not a transfer and that the provisions of the Transfer of Property Act have no application to the creation of easements and the Act was not intended to deal with them. In that case, s. 3(c) of the Transfer of Property Act has also been referred to and it has been pointed out that the provision and s. 54 contemplate transfer of an existing easement and not creation of an easement. We can note that s. 6(c) of the Act itself postulates that there cannot be transfer of easement as such, apart from the dominant heritage. The easement right can be transferred along with the dominant tenement, but it cannot be transferred separately. That also strengthens the proposition that creation of easement by grant cannot amount to transfer, became easement can be transferred along with the dominant heritage only and not separately. Again, the decision reported in AIR 1920 Madras 543 establishes the principle that the grant of an easement is not a transfer of owner ship in immovable property. The next case cited by Mr. Mukherjee is reported in AIR 1944 Patna 261 wherein it has been observed that an easement, from its very nature, docs not confer any right to the land and easement and ownership are two distinct and mutually inconsistent rights. Then again, it is observed in the same decision "it seems to me that it was a permanent grant of a right of the nature of an easement; such grant does not, in my opinion, constitute a transfer within the meaning of the Transfer of Property Act. Then again, it is observed in the same decision "it seems to me that it was a permanent grant of a right of the nature of an easement; such grant does not, in my opinion, constitute a transfer within the meaning of the Transfer of Property Act. Then again, in the decision reported in ILR 31 All 612, it was held that the right to permit the owner of an adjoining house, when he built a second story which was in contemplation, to discharge rain water and also water used for daily household purposes on the premises of another, was a grant of an easement within the meaning of s. 4 of the Easement Act, 1882, and did not require registration, not being a transfer of ownership as contemplated by s. 54 of the Transfer of Property Act. 11. On the basis of the authorities, we are of the firm view that the rule against perpetuity, as embodied in s. 14 of the Transfer of Property Act, cannot have any application to the creation of an easement by grant. The reason is obvious: the creation of an easement does not amount to any transfer and moreover, the Transfer of Property Act is not concerned with easements. In short, the easement right claimed in this case on the basis of a grant does not amount to a transfer within !he meaning of the Transfer of Property Act. That being the position, the plaintiff's claim cannot be dismissed on the ground of the law embodied in s.14 of the Transfer of Property Act. 12. Mr. Mitter, the learned Advocate for the respondent, has argued that the rule against perpetuity would apply to the creation of an easement also. In that connection, he has referred to a passage in Gale's Easements 14th Edn. page 50. There the learned author has quoted Cross, J's observation in Dunn v Blackdown Properties Ltd, which runs as follows: "where the grant was not immediate but was of an easement to arise in the future, it would be void unless it were limited to take effect only within the perpetuity Period". But that was in the context of the right to use sewers which were not in existence the time of the grant. But that was in the context of the right to use sewers which were not in existence the time of the grant. As we will see later, in our case, there is a formed road or passage, Therefore, this observation does not apply to the case in hand, The case of Cunn v. Blackdown Properties Ltd. is reported in 1961 All England Reports (2) 62. We have already observed that the facts of that case were different from the facts of our case. Moreover, that was relating to the English law which does not always apply here when the law is codified. Mr. Mitter has then referred to Article 175 at page 131 of Sanjiva Rao's Law of Easements, 3rd Edn. The learned Author under that article has observed that the grant of an easement which takes effect not as an immediate right but so as to arise in the future is subject to the rule against perpetuities and will be void unless limited to take effect only within the perpetuity period But there also, the learned Author has referred to the case of Dunn v. Blackdown Limited and the observations have been made in the context of that case. We have noticed the distinguishing feature- as between that English case and the case in hand. 13. Mr. Mitter has then referred to a decision reported in 25 CWN 901. It is laid down in that decision that an option to arise on any intended sale or other particular kind of alienation by the owner, for example, a right of pre-emption or first refusal, is subject to the rule against perpetuities, and, to bind the land or property, must comply with it. Then again it is laid down that a covenant for pre-emption which is unlimited in point of time is void on the ground that it is obnoxious to the rule against perpetuities. To the same effect in the decision reported in 33 C WN 150, also re lied on by Mr. Mitter. Then again it is laid down that a covenant for pre-emption which is unlimited in point of time is void on the ground that it is obnoxious to the rule against perpetuities. To the same effect in the decision reported in 33 C WN 150, also re lied on by Mr. Mitter. We are of the view, however, that these decisions can no longer be considered as good law, in view of the Supreme Court decision reported in AIR 1967 SC 744 It has been clearly settled in that decision that the rule of perpetuity cannot be applied to covenant for pre-emption even though there is no time limit within which the right of pre-emption has to be exercised. It is further clarified that the rules against perpetuities falls within the branch of law of property and its true object is to retrain the creation of future conditional interest in property. Further, it is laid down that the rule against perpetuities is not concerned with contracts as such or with contractual rights and obligations as such. In a Bench decision of this court reported in AIR 1961 Cal. 152 , it was held that the pre-emption clause in that case suffered from no infirmity either on account of any uncertainty in its terms or being contrary to or offending any law. In that cast', the pre-emption clause was to this effect that any party in case of disposing or transferring any portion of his share was to offer preference to the other party, that is, each party should have the right of pre-emption between each other. No period was fixed in the pre-emption clause and it was held that the clause suffered from no infirmity In view of the decision of the Supreme Court in AIR 1967 SC 744 , and also on the basis of the ratio in the decision In AIR 1961 Cal. 152 , we are of the view that the decisions in 25 CWN 901 and 33 CWN 150 cannot be considered any longer good law Mr. Mitter has also referred to another English decision reported in Law Reports, Chancery Division, Vol. 20, at page 562. 152 , we are of the view that the decisions in 25 CWN 901 and 33 CWN 150 cannot be considered any longer good law Mr. Mitter has also referred to another English decision reported in Law Reports, Chancery Division, Vol. 20, at page 562. It was held in that case that the covenant gave to the company an executory interest in land to arise on an event which might occur after the period allowed by the rules as to remoteness and so it was invalid on the ground of remoteness. We feel that decision cited based on English law cannot have any application to the case in hand, because, as held in the English decision, the covenant created an executory interest in land, whereas, under s. 54 of the Transfer of Property Act, a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. The laws of-the two countries in that respect are different. Then again, Mr. Mitter has relied upon a decision reported in 15 Indian Appeals page 149. It was laid down in that case that a conditional grant of villages to persons yet who might happen to be the living descendents of the unborn grantees name, to take effect at some future an indefinite period on the grantor or any of his successor failing to maintain such descendents, was altogether void and ineffectual according to Hindu Law. That case was completely different. It was concerning a grant to persons unborn and on uncertain conditions. Here the grantee is the plaintiff and is not a case of a grant in favour of a person not born. The case is clearly distinguishable. Mr. Mitter has next relied upon a decision in 14 CWN 601. We do not find how that decision can have any bearing on the facts of this case. It was not relating to easement at all. It was relating to a lease by Putni Patta. The case is clearly distinguishable. Mr. Mitter has next relied upon a decision in 14 CWN 601. We do not find how that decision can have any bearing on the facts of this case. It was not relating to easement at all. It was relating to a lease by Putni Patta. It was observed that where a lessor by a Putni Patta after leasing a mouza exempted from its operation certain land and covenanted that on certain contingencies happening, the lessee would acquire a right thereto as Patnidar, but no time was specified within which the contingency was to happen in order to vest the right in the Patnidar -such a covenant was void as offending against the rule against perpetuities even as between the parties to the covenant. By its very nature, the stipulation was very vague and uncertain. We are not concerned here with a Patni lease. 14. On the basis of the authorities discussed earlier, we are of the view that the grant in this case does not offend the rule against perpetuity, as embodied in s. 14 of the Transfer of Property Act, because, the creation of easement is not a transfer and also because the Transfer of Property Act does not concern itself with easement, so that there is no transfer of property within the meaning of the Transfer of Property Act. The grant in this case is not hit by the rule against perpetuity. 15. Mr. Mitter has then contended that in this case, there was no immediate grant and so no relief can be given to the plaintiff We art of the view that this point cannot be agitated in a Letters Patent Appeal as it would appear from the judgment of the learned Single Judge of this Court hearing the second appeal that the only point that was argued there related to the legality and validity of the grant d' the easement light of way over the private road in Schedule 'A' in favour of the plaintiff by the said Anil Raha which was to take effect in future in future on the happening of a contingency. The learned Judge also held that that the grant of an easement right of way which was to arise on an uncertain dare, on the happening of a contingency, beyond the perpetuity period was obnoxious to the rule against perpetuities. The learned Judge also held that that the grant of an easement right of way which was to arise on an uncertain dare, on the happening of a contingency, beyond the perpetuity period was obnoxious to the rule against perpetuities. It was never canvassed before the learned Single Judge that there was no grant but what was agitated as that the said grant offended the rule against perpetuities. The parties fought out the case in the second appeal stage on that basis only and the respondent cannot now be allowed to take a new ground in this Letters Patent Appeal, not canvassed before the learned Judge hearing the second appeal. As an authority, we can refer to the decision reported in AIR 1965 Gujarat 293. It has been clearly held that the point not urged before the Judge hearing the second appeal cannot be allowed to be urged for the first time in the Letters Patent Appeal. Therefore, the learned Advocate for the respondent cannot be allowed to urge this new point. 16. Even if that point can be allowed to be raised, we do not find how it can be urged that there was no grant. In the plaintiff's document. Ext. 1, it is specifically recited that the properties, along with all rights, liberties privileges, easements, ways, path rights of way and all other natural rights etc. and appurtenances whatsoever were transferred. Then there is a restrictive clause that so long as the main double storeyed building of the vendor lying to the north-west of the premises hereby sold, shall remain as the personal property of the vendor and his heirs etc, upto that point of time the purchaser shall not claim or be entitled to claim any right of way over the private road of the vendor, C.S. Plot No. 6000 of mouza Asansol Municipality. Then again, it is specifically provided that as soon as and whenever the vendor or his heirs etc. Then again, it is specifically provided that as soon as and whenever the vendor or his heirs etc. shall cease to be the absolute owner of the said double storeyed main building of the vendor lying to the north-west of the premises conveyed and the said double storeyed main building of the vendor shall be transferred to some other party, from that point of time onwards the purchaser shall have and shall continue to have a right of way and passage over the said private road of the vendor, C. S. Plot No 6000. from the S. B. Raha Lane upto the eastern most portion of that private road and thereafter the said right of way and passage shall run with the land and premises and tank and its banks thereby conveyed. Thus, right of passage over the private road of plot no. 6000 was granted immediately, and it was merely suspended upto a certain time on the happening of a certain contingency. There was a formed private road and the grant was made with respect to that. Therefore, there cannot be any vagueness about the subject-matter of the grant. In Halsbury's Laws of England (3rd Edn. Vol. 12 page 542) it is thus observed :- "where there are no apparent signs of the existence of the accommodation afforded by one part of a tenement to the other, no easement is created. Thus a right of egress and regress to the part granted cannot be claimed in favour of the grantee where there is no path or visible sign of such a right having been used ....... If, however, there is a made and visible road which has been used for the purpose of the part granted, a right of way will be created over that road ....... The implication of such a right is strengthened by the appearance in the conveyance of such words as "with all rights usually enjoyed therewith" or "with all rights' appertaining thereto", but probably the mere grant of the land itself without general words would carry the right of way...... the road must be a defined one made up and running in Ii definite direction". 17. Here also there is a defined road running in a particular direction. That road was a visible road always. the road must be a defined one made up and running in Ii definite direction". 17. Here also there is a defined road running in a particular direction. That road was a visible road always. The implication of the right is strengthened in this case also by the appearance in the conveyance of words "with all rights, liberties, privileges, easements, ways, path rights of way". The grant of easement was complete and only its use was suspended. In the case reported in 12 CLJ 259, it is laid down that where there is privity of estate and the covenant is connected with or concerns the land or estate conveyed, the covenant will run with the land as readily as one conferring a benefit. In this case, there was privity of estate between the parties and so the covenant was to run with the land. This position is strengthened when we notice that in the defendant's deed, there is direct reference to the covenant in favour of the plaintiff. It is specifically stipulated that Item No.2 of the property, that is Plot No. 6000, was subject to the right of easement and. the purchaser, the defendant no. 2, was bound by the same covenant. Thus we find that there cannot be any basis for the c0ntenrion that no such grant was at all made. And, as observed before, in the second appeal the only point agitated was that the said grant was hit by the rule against perpetuity. We repeat that it cannot now be agitated that no grant at all was made. 18. As we have found that the grant is not hit by the rule against perpetuity, the plaintiff can legally enforce her right of easement. The Suit should have been decreed. 19. This Letters Patent Appeal succeeds. The appeal is allowed on contest. The judgments of the trial court, the first appellate court and of the learned single judge of this court in S.A 482 of 1963 and the decreed of dismissal passed are hereby set aside. The suit be decreed on contest against the contesting defendant. The plaintiff's right of way both for the vehicular traffic and foot way over road mentioned in Schedule 'A' to the plaint of title suit nos. The suit be decreed on contest against the contesting defendant. The plaintiff's right of way both for the vehicular traffic and foot way over road mentioned in Schedule 'A' to the plaint of title suit nos. 46 of 1958 and 55 of 1961 for egress and ingress into the plaintiff's house and premises mentioned in Schedule 'B' to the plaint is hereby declared. The defendants 1 and 2 are hereby restrained from blocking the road over the land mentioned in Schedule 'A' to the plaint and from obstructing in any way the said road or passage for vehicular .traffic and foot• way into and from the premises mentioned in Schedule 'B' of the plaint. There will be no order for costs for any stage and the parties to bear their own costs uplo this stage. Sunil Kumar Guin, J.: I agree. L. P. Appeal allowed;