JUDGMENT : Easwaran S., J. 1. Can an easement by grant be created by a settlement deed is the question which falls for consideration in these appeals. The appellant/plaintiff in O.S. No.422 of 2007 has been non-suited concurrently by the courts below on the ground that the covenant in the deed is vague and unenforceable. 2. The appellant, as plaintiff, instituted O.S. No.422 of 2007 before the Additional Sub Court, Irinjalakuda, seeking a declaration of his right of way created under a settlement deed dated 12.4.1979. The suit for declaration was necessitated because a subsequent assignee from one of the brothers of the plaintiff instituted a suit, O.S. No.568 of 2006, before the Additional Sub Court, Irinjalakuda, seeking for a decree of injunction restraining the appellant herein from trespassing into the plaint schedule property, thereby setting up a claim that, the covenant in the settlement deed is vague and hence unenforceable. Facts leading to the institution of the above-mentioned suits are not under dispute and hence succinctly stated as follows: 2.1. A settlement deed No.940/79, was executed by the father of the plaintiff in favour of the plaintiff and his brothers by allotting separate property to each of them. In the said settlement deed, the A schedule property was allotted to one Vasu, the B schedule property was allotted to one Sivaraman, the C schedule property was allotted to the plaintiff, Somasekharan and the D schedule property was allotted to one Bharathan. It is further stated in the deed that the way which is in existence to access the C schedule property from the D schedule property shall not be obstructed by anyone. Equally so, it is mentioned that the right to take water from the pond, in the plaint A schedule, shall not be obstructed by the other beneficiaries. The beneficiary of D schedule, namely, Bharathan, one of the brothers of the plaintiff, sold the property to one T.P.Radhakrishnan in the year 1993, who subsequently transferred it to the 1 st respondent in R.S.A. No.1280 of 2016. The assignment was in 2001. Thereafter, in the year 2006, Sri. Balan, the father-in-law of the above 1 st respondent, instituted O.S. No.568 of 2006, being the power of attorney of the 1st respondent, seeking for a decree restraining the defendant/appellant herein from trespassing into the plaint schedule property, transferred by the beneficiary Sri. The assignment was in 2001. Thereafter, in the year 2006, Sri. Balan, the father-in-law of the above 1 st respondent, instituted O.S. No.568 of 2006, being the power of attorney of the 1st respondent, seeking for a decree restraining the defendant/appellant herein from trespassing into the plaint schedule property, transferred by the beneficiary Sri. Bharathan to whom it was allotted as ‘D’ Schedule under the settlement deed dated 12.4.1979. The suit was resisted by the appellant, contending that he has got a right of easement through the D schedule property for accessing the plaint C schedule property. Later, he instituted O.S. No. 422 of 2007, seeking a declaration of his easement right to take water from the pond, as well as the right of access through the D schedule under the settlement deed. The suit was resisted on the ground that the covenant, if any, running along with the land as per the settlement deed, is vague and unenforceable. O.S. No.568 of 2006 was taken as the leading case, and Exts.A1 to A4 were marked on the side of the plaintiff, and PW1 was examined. Exts.B1 and B2 were marked on the side of the defendants, and DW1 to DW4 were examined on the side of the defendants. Exts.C1 to C4 are the reports and plans submitted by the advocate commissioner. The trial court, on appreciation of the pleadings and evidence produced before it, framed the following issues in both suits: O.S. No.422 of 2007 1) Whether plaint C schedule pathway is identifiable? 2) Whether there is any need for the plaintiff to take water from the pond situated in the plaint B schedule property? 3) Whether plaintiff is entitled to the declaration as prayed for? 4) Whether the plaintiff is entitled to get an injunction as prayed for? 5) Relief and costs? O.S. No.568 of 2006 1. Whether the right of the defendant as per document No.940/09 is lost due to unenforceable restrictive covenant? 2. Whether the plaintiff is entitled to get a declaration as prayed for? 3. Whether the plaintiff is entitled to get a permanent prohibitory injunction as prayed for? 4. Reliefs and costs? 3. On appreciation of the oral and documentary evidence, the trial court held that the covenant in the deed is indefinite and hence unenforceable and accordingly decreed the suit, O.S. No.568 of 2006 and dismissed O.S. No.422 of 2007. 3. Whether the plaintiff is entitled to get a permanent prohibitory injunction as prayed for? 4. Reliefs and costs? 3. On appreciation of the oral and documentary evidence, the trial court held that the covenant in the deed is indefinite and hence unenforceable and accordingly decreed the suit, O.S. No.568 of 2006 and dismissed O.S. No.422 of 2007. Aggrieved, the appellant preferred A.S. Nos.112 of 2010 and 114 of 2010 before the Additional District Court-I, Thrissur, and by judgment and decree dated 30.6.2016, both the appeals were dismissed and hence these present second appeals. 4. While admitting these appeals on 11.7.2017, the following substantial question of law was framed by this Court . “When an express grant has been created in Ext.B1, are the courts below justified in treating it as a covenant which is vague or unenforceable?” 5. Heard Sri. K.G. Balasubramanian, the learned counsel appearing for the appellant and Sri. G. Sreekumar Chelur, the learned counsel for the respondents. 6. Sri K.G. Balasubramanian, the learned counsel appearing for the appellant, submitted that the findings of the courts below that the covenant created under Ext.B1 settlement deed is unenforceable cannot be sustained for multiple reasons. He pointed out that the right, title and interest over the properties devolved upon the respective shares on the basis of the settlement deed executed by the father, and therefore, the father was entitled to create such restrictions for the beneficial enjoyment of the property. The subsequent assignee from one of the beneficiaries under the settlement deed cannot contend that the covenant is unenforceable because the settlement deed was accepted by all the parties. Any obligation attached to the land will run along with the land, and that merely because one of the beneficiaries has sold his share, by itself will not denude the right of the appellant to enjoy the easement which is created over the land. When an easement by express grant is created by the document, the courts below went wrong in holding that the said right is unenforceable because the same is vague. He further submitted that, going by the reports of the advocate commissioner, the existence of the plaint B schedule pathway up to 10 feet width has been clearly found out and therefore, even if the extent is slightly incorrect, the trial court was not powerless to grant the decree accordingly. 7. Per contra, Sri. He further submitted that, going by the reports of the advocate commissioner, the existence of the plaint B schedule pathway up to 10 feet width has been clearly found out and therefore, even if the extent is slightly incorrect, the trial court was not powerless to grant the decree accordingly. 7. Per contra, Sri. G. Sreekumar Chelur, the learned counsel for the respondents, contended that the courts below have concurrently found that the covenant under Ext.B1 document is unenforceable and is in a negative character. The subsequent assignee from one of the beneficiaries is not bound by the restrictive covenant. In support of his contention, the learned counsel for the respondents placed reliance on the provisions of Section 40 of the Transfer of Property Act, 1882 , read with Section 11 . He would thus contend that even in a case of easement by grant, it is imperative for the plaintiff to schedule the extent over which the easement is claimed with precision in order to enable the court to pass an executable decree. Lastly, it is pointed out that an easement of grant cannot be executed by way of a settlement deed because the settlement deed is a non-testamentary disposition. 8. I have considered the rival submissions raised across the Bar and have perused the judgments rendered by the courts below and the records of the case. 9. Though the substantial question of law framed by this Court at the time of admission requires this Court to consider as to whether the judgments of the court below are sustainable in the light of the fact that Ext.B1 provides an express grant, in the nature of the contentions raised by the parties, this Court feels that it will be appropriate to find out whether a case of easement by grant is made out under Ext.B1. Only if this Court were to conclude that Ext.B1 creates an easement by grant, then only, the appellant will be entitled to succeed. 10. In the above backdrop, this Court proceeds to consider the respective contentions on merits. 11. The word easement by grant is not defined under the Easements Act. But necessarily, it implies and requires that the right to be reduced in writing. See Sherif Vincent vs. Stephen, 2025 KLT OnLine 3121 [authored by ES(J)]. 12. It is in this context that this Court is called upon to interpret Ext.B1. 11. The word easement by grant is not defined under the Easements Act. But necessarily, it implies and requires that the right to be reduced in writing. See Sherif Vincent vs. Stephen, 2025 KLT OnLine 3121 [authored by ES(J)]. 12. It is in this context that this Court is called upon to interpret Ext.B1. A cursory glance at Ext.B1 will show that the property was settled by one Sankaran in favour of his children Vasu, Sivaraman, Somasekharan and Bharathan by allotting the plaint A, B, C and D schedule properties. The plaint C schedule property and the plaint D schedule property fall for consideration in the present cases. The plaint C schedule property consists of Eighty Three (83) cents, whereas the plaint D schedule property consists of Eighty Seven (87) cents and Five (5) cents in Survey No.340 of Kodungallur Taluk. It is specifically stated in the said documents as follows: 13. It is also stated that the settler reserved the life interest to reside in the property for himself and his wife. It was further stated that all the parties will have the right to draw water from the pond situated in the scheduled properties. There cannot be any doubt that Ext.B1 settlement deed creates an easement by grant but then, it is the specific case of the learned counsel for the respondents that a non-testamentary disposition of the property cannot confer any easement because the settler did not retain any interest over the property and thus, a restrictive right is granted in favour of the beneficiary and therefore, the beneficiary is entitled to ignore the said restrictive right. This argument perhaps weighed in the minds of the courts below while dismissing the suit preferred by the appellant herein. 14. Though the argument may at first blush appear to be appealing, it is riddled with several infirmities which will be discussed by this Court in the following paragraphs. 15. The basic infirmity that stems out of the argument is that, it fails to address the basic distinction between easement and a covenant. An easement is a right distinct from ownership, to use in some way, the land of another, without compensation. A restriction is a limitation of the manner in which one may use his own lands and may or may not involve a grant. An easement is a right distinct from ownership, to use in some way, the land of another, without compensation. A restriction is a limitation of the manner in which one may use his own lands and may or may not involve a grant. Whereas a covenant other than one between the lessor and the lessee, which is in substance, restrictive of the user of the covenantor’s land, is entered into in such manner as to bind his successors-in-interest and ensure for the successors-in-title of the covenantee’s land. It may seem that the covenantor's land, a dominant tenement and the covenant itself a negative easement binding the land in equity, two features, however, distinguish this relationship, forms an easement namely; (1) the subject-matter of such a covenant is not sufficiently definite to be capable of a grant, which is an essential requirement of every easement, although blurred in the case of negative easements, such as access of light and air. (2) the burden of a restrictive covenant is not shaken off when the servient tenement is acquired for a legal estate by a bona fide purchaser for value without notice, express or implied, or constructive, of the existence of the covenant, whereas an easement subsisting for a legal estate cannot be so dislodged, but is extinguishable only by an authority of statute law, by merger arising from unity of ownership of the tenements concerned, or by release, whether express or implied from abandonment. 16. The essential difference could be described as one to mean that the easements are creatures of the Statute, but covenants are based on agreement. The former arises by the act of law, and the latter by an act of parties. Covenants run with the land, except that a bona fide purchaser without notice is not bound by them. The benefit of covenants can be claimed by the transferee against the covenantor or his transferee for value with notice or a gratuitous transferee with or without notice. 17. Covenants run with the land, except that a bona fide purchaser without notice is not bound by them. The benefit of covenants can be claimed by the transferee against the covenantor or his transferee for value with notice or a gratuitous transferee with or without notice. 17. Gale on Easements (1950) 12 th Edition explains the nature of covenants in the following words : No restrictive covenant entered into by an owner of land that he or his assigns will abstain from using his land in any particular way binds an assignee of the covenantors land, even though taking with notice of the covenant unless the covenantee is in possession of or interested in defined or ascertainable land capable of being benefited by the covenant and the covenant touches or concerns that land, by which is meant that the covenant is imposed for the benefit or to enhance the value of the land or some part of it. 18. The respondents can succeed only if this Court were to hold that the restrictions placed by the settler for the beneficial enjoyment of plaint D schedule property to the beneficiary under Ext.B1 document is personal and does not run with land. This may be probably why the learned counsel for the respondents made an attempt to impress upon this court that, going by the provisions of Sections 11 and 40 of the Transfer of Property Act, the subsequent assignee could ignore the restriction placed by the settler. 19. Section 11 of the Transfer of Property Act, 1882 reads as under: Restriction repugnant to interest created.— Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof 20. Section 11 of the Transfer of Property Act postulates that where the property has passed absolutely any restriction on the enjoyment of the property is void and unenforceable. However, the second part of Section 11 provides for an exception to the general rules and permits restrictions on the enjoyment of the property transferred, if such restriction is for the beneficial enjoyment of the adjoining property of the transferor. 21. Section 40 of the Transfer of Property Act, in turn, deals with enforcement of restrictive and negative covenant by a third party for the beneficial enjoyment of his own immovable property. The second part of Section 40 of the Transfer of Property Act deals with the obligation annexed to the proper ownership of the immovable property arising out of the contract which does not amount to interest in the property or easement therein. Nevertheless, the obligation can be enforced against the transferee unless he is a transferee for value without notice: Section 40 of the Transfer of Property Act reads as under: “ 40. Burden of obligation imposing restriction on use of land. Where, for the more beneficial enjoyment of his own immoveable property, a third person has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment [in a particular manner of the latter property], or of obligation annexed to ownership but not amounting to interest or easement. — Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands.” 22. Pertinently, even a covenant running with the land could be enforced against the transferee with notice. This is the true purport of Section 40 of the Transfer of Property Act, 1882 . 23. It is worthwhile to mention that the brother of the appellant who is the beneficiary of D schedule property to the Ext.B1 settlement deed had no dispute regarding the right of the appellant of the usage of the way or taking out water from the pond. 23. It is worthwhile to mention that the brother of the appellant who is the beneficiary of D schedule property to the Ext.B1 settlement deed had no dispute regarding the right of the appellant of the usage of the way or taking out water from the pond. The subsequent assignee found it difficult to conceive the situation where his property was subjected to an easement which he did not want to oblige. Therefore, he raised a plea that the obligation attached to the land is a covenant and the same being vague is unenforceable. 24. The respondent had no case that he had no notice of the said restriction because the prior document of title makes it clear as regards the right of way and entitlement to draw water from the pond in existence. At any rate, going by the second part of Section 11 of the Transfer of Property Act, the restriction imposed in Ext.B1 deed cannot be said to be repugnant to the interest created and therefore, this Court is not persuaded to accept the arguments of the learned counsel for the respondents that because of the fact that it is a non-testamentary dispossession, no easement for grant can be made because the assignor of the first defendant in O.S. No.422 of 2007 was not the signatory to the deed. It must be remembered that, but for the settlement deed, the assignor of the 1 st defendant in O.S. No.422 of 2007 did not derive any right, title and interest over the property. Even otherwise, at no point of time prior to the assignment in favour of the 1 st defendant in O.S. No.422 of 2007, the assignor had no case that he was not bound by the restrictions contained in Ext.B1 settlement deed. Therefore, the argument that the restrictions contained under the Ext.B1 deed are repugnant to the interest created and thereby the conditions set out under Section 40 of the Transfer of Property Act are satisfied, and therefore the 1 st defendant in O.S. No.422 of 2007 is not bound by the said restrictions, cannot be sustained. 25. Now this Court must examine whether the appellant herein in these appeals has succeeded in proving the existence of the pathway and pond from which he is entitled to draw the water. 25. Now this Court must examine whether the appellant herein in these appeals has succeeded in proving the existence of the pathway and pond from which he is entitled to draw the water. A reading of Ext.B1 settlement deed leaves no room for doubt regarding the nature of easement created by the settler. The existence of the way is indisputably proved through Exts.C1 and C3 reports. 26. While answering question No.8 at page No.3 of the Ext.C1 report, the advocate commissioner has found as follows : 27. Similarly, answering question No.12 in Ext.C3, the commissioner found the existence of the way as follows: 28. Thus, the advocate commissioner, having found the existence of a pathway of 10 feet width and the existence of the pond, it was not open for the courts below to have concluded that the restriction placed under the settlement deed is a covenant which is vague and hence unenforceable. The contents of the settlement deed and the evidence on record clearly indicate that the right granted to the appellant is nothing but an ‘easement by grant.’ 29. However, the learned Counsel for the respondents tried to impress this Court that an easement by grant cannot be granted through a settlement deed. However, this Court is afraid that the said contention cannot be accepted. There is no prohibition under law that an easement cannot be created through a settlement deed and thus, it will be wholly inappropriate for this Court to hold that an easement of grant cannot be created by a non-testamentary disposition. 30. In Sree Swayam Prakash Ashramam & Anr. vs. G. Anandavally Amma & Ors. 2010 (2) SCC 689 , the Supreme Court considered the question as to whether the easement by implied grant could be made out from a settlement deed and found that, an easement by implied grant can be created by way of a settlement deed. Applying the principles to the facts of this case, where an express grant is already made under a settlement deed, this Court has no hesitation to hold that easement by grant created by Ext.B1 settlement deed is valid. 31. One must remember that the easement of grant created by a deed is not lost merely because the beneficiary under the deed assigns his property to a third person. 31. One must remember that the easement of grant created by a deed is not lost merely because the beneficiary under the deed assigns his property to a third person. In Raghavan vs. Ramakrishnan (Died) and Others, 2025:KER:45127 [R.S.A. No. 1457 of 2011 decided on 23.6.2025], authored by ES(J), this Court held that unless the conditions under Section 38 of the Easements Act, 1882, are met, the easement created by grant is not released. 32. Resultantly, the substantial question of law is answered in favour of the appellant in these appeals as follows “when an easement of grant is made under a document, there is no question of the same being construed as a covenant and unenforceable under law.” 33. Consequently, these appeals are allowed by setting aside the judgment and decree in A.S. Nos.112 and 114 of 2010 on the files of the Additional District Court-I, Thrissur and reversing the common judgment in O.S. No.422 of 2007 and 568 of 2006 on the files of the Additional Sub Court, Irinjalakuda. Resultantly, O.S. No.568 of 2006 will stand dismissed with costs to the appellant herein. O.S. No.422 of 2007 will stand decreed as follows: 1. The right of the plaintiff to draw water as provided under Ext.B1 settlement deed is declared, and the defendants are restrained by way of a permanent prohibitory injunction from obstructing the plaintiff from drawing water from the pond. 2. The right of the plaintiff to use the pathway found by the commissioner in Ext.C1 and C3 reports is declared. Ext.C3(a) plan will form part of the decree, and the defendants are restrained from obstructing the plaintiff from accessing the pathway found by the advocate commissioner under Ext.C3 (a) Plan. Appellant is entitled to costs throughout.