Right to use passage granted in the sale deed will not extinguish in terms of section 41 of the Indian Easements Act:

The Hon’ble Supreme Court in the case of “S Kumar & Ors. vs S Ramalingam” Civil Appeal No. 8628-8629 of 2009 decided on16.07.2019 has held that right to use passage granted in the sale deed will not be extinguished in terms of Section 41 of the Indian Easements Act, 1882. Perusing the deed, it was held that there is a specific mention of easement rights reserved for the defendant in the sale deed. Grant of easement right of passage granted in the sale deed to the defendant will not be negated only because the recital is generic in nature and usually put by the deed writers.

Challenge:

The issue involved in the present case is that if the easement rights were not granted specifically to the defendant as the recitals in the sale deed, will it not include the grant of any easement rights to the defendants?

Held:

Referring to provisions of Section 48 of Transfer of Property Act, 1882, the bench further observed:

The said provision contemplates that where a person has created different rights in or over the same property, such rights cannot be exercised to their full extent together, then each later created right shall be subject to the rights previously created. The exception is if special contract or reservation binding the earlier transferee is executed. It will mean that the exclusive right conferred on the plaintiff in the sale deed dated May 31, 1988 will not be legal till such time the earlier transferee i.e. defendant No. 2 has a special contract or reservation which binds her. Since the right of access to defendant No. 2 was reserved in the sale deed dated April 1, 1976, therefore, the vendor could not confer exclusive right to the plaintiff vide sale deed dated May 31, 1988.

The argument that right of easement stands extinguished once the easement of necessity comes to an end is not applicable to the facts of the present case. The rights of the parties arise out of document of title in the year 1976. Still further, the rights of the parties have to be adjudicated upon as they exist on the date of filing of the suit. The subsequent events of inheritance vesting the property in the same person will not take away the right of the defendants to use the passage adjacent to their land only because the defendant No. 2 has gifted part of land to defendant No. 1.