Mohini Debi vs Ramdas Banerjee

M.M. Dutt, J.—This appeal'' is at the instance of the- plaint-tiff and it arises out of a suit for declaration of a right of way and for permanent injunction.

The case of the Plaintiff is that the properties mentioned in schs. A, B, C and D of the plaint belonged to one Anil Raha. Schedule A land is a private road and it has been for more than thirty years used and treated as the common passage for ingress and egress to and from the land and properties mentioned in schs. B, G and D. It is alleged that the said passage in sch; A is; absolutely necessary and is indispensable for the beneficial enjoyment of the premises situate in the land mentioned in schs. B, C and D of the plaint. By a sale deed dated January 20, 1953 the said Anil Raha transferred to the Plaintiff the land and house described in sch. B of the plaint and also granted a right of way and passage over the private road mentioned in sch. A. The relevant portion of the sale deed, which is Ex. 1 relating to the private road, is as follows:

...Provided that so long as the main double storied building of the vendor lying to the north-west of the premises hereby sold shall remain as the personal property the vendor and his heirs, executors and legal representatives and shall not be transferred to some other party, 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, CS. plot No. 6000 of mouja Asansol Municipality. But be it specifically provided that as soon as and whenever the vendor or his heirs, executors or legal representatives shall cease to be the absolute owner of the said double storied main building of the vendor lying to north-west of the premises hereby conveyed and the said double storied 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, CS. plot No. 6000, from S. B. Raha Lane upto the easternmost 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 hereby conveyed.

Previous to the transfer of the land and house described in sch. B o*f the plaint to the Plaintiff, the said Anil Raha transferred by a document dated December 18, 1950, the land and properties mentioned in sch. C of the plaint to the pro forma Defendant and also granted to the pro forma Defendant a right of way and passage over the private road as mentioned in sch. A of the plaint. By another document dated January 31, 1957, Anil Raha transferred to the Defendant No. 1 in the benami of the Defendant No. 2 the property mentioned in sch. D of the plaint lying to the north-west of the premises sold to the Plaintiff by Ex. 1. It is alleged that the Defendant Nos. 1 and 2 purchased the sch. D property with the knowledge of the pre-existing rights and title of the Plaintiff and the pro forma Defendant with regard to the private road mentioned in sch. A of the plaint. In 1953, the Plaintiff built a house on sch. B land and his vendor Anil Raha assured the Plaintiff that she would have a right of way over the private road mentioned in sch. A of the plaint. The Plaintiff thereafter built her main gate abutting on the private road and it is alleged that this is the only entrance for vehicles into the premises of the Plaintiff. It is further alleged that the Plaintiff has been using the private road as a passage as of right since her purchase and that the Defendants Nos. . 1 and 2 purchased the sch. A land subject to the right of way in favour of the Plaintiff and the pro forma Defendant. It is the Plaintiff''s case that the Defendants Nos. 1 and 2 have been interfering with the said right of way of the Plaintiff over the private road and as such the Plaintiff filed the said suit for the reliefs afore'' said.

The main defence of the Defendants Nos. 1. and 2 is that the stipulation in the Plaintiff''s sale deed by the said Anil Raha that the Plaintiff would have in future a right of way over the private road from the point of time when the said Anil Raha would cease to have any right over the same and in the main building to its north, is an illegal and a void stipulation, inasmuch as it offends the rule against perpetuities.

The learned Munsif came to the findings that the Plaintiff had not acquired a right of easement over the sch. A land on the basis of any express or implied grant or as an easement of necessity or as a quasi-easement or as an easement in gross. Further, it was held by the learned Munsif that the grant of a right of way over the private road was void as it was opposed to the rule against perpetuities. Upon the said findings the learned Munsif dismissed the Plaintiff''s suit. Being aggrieved by the judgment and decree of the learned Munsif, the Plaintiff preferred an appeal which was heard by the learned Subordinate Judge, Asansol. The learned Subordinate Judge also took the same view as that of the learned Munsif and dismissed the appeal. Hence, this second appeal at the instance of the Plaintiff.

The only question that has been argued in this appeal relates to the legality and validity of the grant of the easement right of way over the private road in sch. A in favour of the Plaintiff by the said Anil Raha which was to take effect in future on the happening of a contingency. Both the Courts below have come to the concurrent finding that the said grant was hit by the rule against perpetuities and, as such, it was illegal and void. Prima fade it appears that the grant of easement right by the sale deed, Ex.1, in favour of the Plaintiff, offends against the rule against perpetuities for its uncertainty as to the commencement of the right of easement sought to be created by that document. It is, however, contended on behalf of the Plaintiff-Appellant that Section 14 of the Transfer of Property Act embodying the rule against perpetuities does not apply to the creation of any easement right. Mr. Banerjee, learned Advocate appearing on behalf of the Plaintiff-Appellant, has strenuously urged that the provisions of the Transfer of Property Act including Section 14 are not applicable to the grant of an easement right, firstly, because it is not a transfer and, secondly, because no interest in land is created by such a giant.

Section 14 is as follows:

No transfer of property can operate to create an interest which is to take effect for the life time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom if he attains full age, the interest created is to belong.

It is not disputed that if it is held that the grant in question is a transfer and has created an interest in land, then it is hit by the provisions of Section 14 for its uncertainty and remoteness. In support of his contention that the provisions of the Transfer of Property Act do not apply to the grant of an easement right, strong reliance has been placed by Mr. Banerjee on a Bench decision of this Court in Sital Chandra and Ors. v. Mrs. A.J. Delanney, 20 CWN 1158 . In this decision, it has been observed that the provisions of the Transfer of Property Act have no application to the creation of an easement for the simple reason that, the Act was not intended to deal with that topic. That observation was made in connection with a contention that the grant of an casement right was either a sale u/s 54 or a gift u/s 123 of the Transfer of Property Act and, as such, it should be effected by a registered instrument. It was held that it was neither a sale nor a gift and, accordingly, it did not require any instrument in writing and registered. In that context the said observation was made. There was no question before the Bench in that case as to the applicability of the provisions of Section 14. The observation should be understood in the context in which it was made and not de hors it. It seems to me that by that observation it was really meant that the provisions of Section 54. and 123 of the Transfer of Property Act did not apply to the creation of an easement right. The view which I take finds support from a decision of P. B. Mukharji J. (as he then was) in Nalini Ghosh v. Ananta Pada Modak 69 C.W.N. 503. Further, in that case Mukharji J. expressed the opinion that the said observation made in Sital Chandra''s case ( Supra) referred to above was an obiter, for the Division Bench was only concerned with the question whether the creation of an easement required an instrument in writing and registered. Two other decisions have been relied on by Mr. Banerjee, one in Bhagwan Sahai v. Narsingh Sahai ILR 31 51.612 and the other in Musunoori Satyanarayana Murti v. Chekka Lakshmayya and Ors. A. I. R.. 1929. Mad. 79. In both the decisions, it has been held that the creation of a right of easement by a grant is not such a transfer of ownership as is contemplated by Section 54. These two decisions are of no help to Mr. Banerjee''s contention. In the instant case, we are concerned whether creation of an easement is a transfer and whether it creates an interest in land.

The word ''transfer'' contemplates creation of interest in land or property. If no interest in land or property is created there is no transfer. In that sense^ a charge is not a transfer of property, for it creates no interest in property, but only a personal obligation is created--Govinda Chandra v. Dwarka Nath ILR 35 Cal. 837. Similarly, u/s 54 of the Transfer of Property Act, a contract for sale ol immovable property does not of itself create any interest in such property. When a person having absolute ownership in a property) carves out any of the component rights constituting such owner ship in favour of another person, he creates an interest in that propropertyperty in favour of that person. It has been observed in Mulla; Transfer oj Properly (5th ed., p. 50) as follows:

Absolute ownership is an aggregate of component rights such as a right of possession, the right of enjoying the usufruct of land, and so on.

These subordinate rights, the aggregate. of .which make up, absolute ownership, are .called in this Act interests in property ; and in English law, real rights. A transfer of property is either a transfer of absolute ownership or a transfer of one or more of these subordinate rights. When there is a grant of a right of way, it surely carves out a part of the subordinate rights from the ownership of the grantor in favour of the grantee. The grantee is allowed to exercise a right of way over the land which he cannot, but for the grant. After the grant and during the period the grant remains operative, the grantor cannot prevent the grantee from exercising such a right on his land. It, therefore, follows that the grantor has by the grant created an interest in land in favour of the grantee.

On behalf of the Appellants, it has been strenuously urged that no interest in land is created by the grant of an easement right of way. Reliance has been placed on a decision of the Supreme Court in Rambaran Prosad Vs. Ram Mohit Hazra and Others, .

In that decision it has been held that the rule of perpetuity cannot be applied to a covenant of pre-emption even though there is no time limit within which the option has to be exercised, for a covenant of preemption does not create any interest in land. Further, it has been held by the Supreme Court that the rule against perpetuity does not apply to personal contracts which do not create interest in property even though the contract may have reference to land. I have already held that the grant of an easement right of way creates a right of property or an interest in land and, as such, it comes within the purview of the rule as embodied in Section 14 of the Transfer of Property Act. A contract for sale and a covenant of pre-emption stand on the same footing, for, although they relate to land, they do not create any interest therein, but the case is otherwise with regard to. the grant of an easement right of way. The same view was expressed by Sir Ashutosh Mookerjee in his Tagore Law Lectures on the Law of Perpetuities in British India. It was observed (p. 123) as follows:

Now it may be laid down broadly that the rule affects rights of property only and does not touch contracts which do not create rights of property. It is immaterial whether the covenant runs or does not run .with the land, or whether it can or cannot be enforced as well against the original parties or their representatives, or whether it has or has not a right of distraint attached to it; the essence of the matter is whether the contract gives a specific claim to some specific property for a general claim to damages, upon the breach of a personal covenant, stands out of all relation'' to the rule.

The English law also recognises the applicability of the rule against perpetuities .in relation to, the creation of easements. On behalf of the Respondents. reliance has been placed by, Mr. -Roy, learned Advocate, on Dunn v. Blackdown Properties Ltd. [1961] 2 W.L.R. 618., The facts of that case, were that by; two conveyances .dated respectively December 17, 1926, and. January 11, 1938, two plots of land were conveyed to the Plaintiff''s predecessors-in-title -together with: the right''-for the grantees, their heirs and assigns to use the sewers and drains -now passing or. hereafter to pass'' under a ''private road: -on which ''the plots abutted and belonging to the Defendants'' predecessors-in-title. At some date after January M, 1938," the Defendants'' predecessors-in-title constructed a surface water'' sewer along, the road and a soil sewer which passed from their: land lying north of the road, ran under the road for some distance-''and turned on to other land of theirs. In an action by the Plaintiff to whom the two plots together with the foregoing right had been conveyed on September 20, 1945, claiming, inter alia, a declaration that she was entitled to the right to use the sewers and drains then passing or, thereafter, to pass under the road in connection with the two plots, it was held by Cross J. that since no sewers or drains were in existence at the date of the conveyance to the Plaintiff''s predecessors-in-title the grant of the right to use the sewers and drains ''hereafter to pass'' was a grant of an easement to arise at an uncertain date in the future not limited to take effect within perpetuity period and was, therefore, void.

In view of the discussion aforesaid, I/hold that the grant of an easement right of way'' which is to: arise on an uncertain1 date, on the happening of a contingency, beyond the perpetuity period: is obnoxious to the rule against perpetuities. In the instant case, also, such a right has been created by Ex. 1 and it is hit by the rule.

My attention has been drawn to a recital in the Respondents'' kobala dated January 31, 1957, Ex. 2, executed by the said Anil Raha to the effect that in item No. 2 of the properties described in the schedule to the said kobala, that is, the disputed private road has been burdened with an easement right and that the purchaser will be. bound by the same. It is contended on the basis of the above recital that the Respondents purchased the land described in sch. B to the plaint subject to the right of way of the Plaintiff in the disputed private road described in sch. A to the plaint. This contention was not made either in the trial Court or in the lower appellate Court. On behalf of the Respondents it has been submitted that even assuming that the Respondents purchased the property in sch. B subject to the said right of way over the disputed private road for the beneficial enjoyment of the adjacent lands, the grant of such an easement right being void as opposed to the rule against perpetuities, the Respondents are not bound to recognise or give effect to such a grant which is void. Secondly, it is contended that the statement in the kobala referred to above suffers from vagueness as it cannot be ascertained with any amount of certitudes that it refers to the easement right of way created in favour of the Plaintiff-Appellant. The point which has been raised on behalf of the Appellant is not a point of law simpliciter, but it also involves facts which require investigation before the point can be answered finally. Further, there is considerable force in the contention made on behalf of the Respondents that the Respondents are not bound by such .a recital when the grant in favour of the Plaintiff-Appellant is void. In these circumstances, I arn unable to accept the contention made on behalf of the Plaintiff-Appellant. The Courts below are, therefore, justified in dismissing the Plaintiff''s suit. No other point has been argued in this appeal.

In the result, the judgment and decree of the lower appellate Court are hereby affirmed and this appeal is dismissed, but in view of the facts and circumstances of the case, there will be no order as to costs.

Leave to appeal under cl. 15 of the Utters Patent is prayed for and is granted.

Let. the operation of this judgment remain stayed for two weeks from date.