TaxTMI 
TaxTMI 
1963 (7) TMI 107
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....ere reversed and the suit was dismissed. There was a second appeal to this Court by the plaintiff which was heard by Kailasam, J. The learned Judge reversed the judgment and decree of the lower appellate Court and restored that of the trial Court. He, however, granted leave and hence this appeal has been preferred under Cl. 15 of the Letters Patent by the aggrieved defendants. 3. The dispute between the parties is as regards the right of way to the premises belonging to the plaintiff called "Rushkrum" from Mount Road, Madras across the premises known as "Khaleel Mansions". Khaleel Mansions buildings abut the Mount Road. But the premises Rushkrum does not adjoin Mount Road but lies in the hinterland. On the west of the buildings a road called Woods Road runs north to south and on the east there is another road called Club House road, also running north to south. That there is some access to the premises Rushkrum from both these roads is not in dispute. But the question is whether the owner of said premises is entitled as of right to use the pathway A B C D from Mount Road and get access to his building. Shortly put, the case of the plaintiff is that he has got a right of easement,....
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....cuee Property and also in the Central Government by appropriate notification under the Displaced persons (Compensation and Rehabilitation) Act 44 of 1954, to the provisions of which we shall make a detailed reference a little later. 5. Admittedly "Khaleel Mansions" which became evacuee property was sold by the Central Government in exercise of the powers conferred upon them by the Statute and the defendant became the purchasers of the property on 12-5-1955. After purchasing the property they raised a wall XY marked red in the plan and effectively blocked the passage from Mount Road leading upto the building Rushkrum. This was in denial of the plaintiff's right of access to Rushkrum from Mount Road. 6. The plaintiff claims that he has acquired a right of way through A B C D by prescription, or in the alternative, by grant. We may at once, mention that there is no express grant in favour of the plaintiff from the original common owner Khaleel Shirazee, but, a right of easement can be inferred from facts and circumstances which would necessarily imply a grant. The plaintiff therefore submits that the acts and conduct of his father Khaleel Shirazee were such as to indisputably l....
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.... was in management of both sets of properties. Therefore, the learned Judge would say that any user of the path-way by persons frequenting the premises Rushkrum must have been only with the permission of the original owner of the property who had divested himself of all title to the property and who was in possession only as a manager. This reasoning, in our opinion, is fallacious. If Khaleel Shirazee only occupied the position of manager, and in fact he was occupying only such position, he was representing the owners of both the buildings. There is no merger of the two owners in Khaleel Shirazee either by reason of the fact that he was the father or by reason of the fact that he was functioning as the common manager. Therefore, if he, as the manager of the plaintiff's property and also as the manager of the property of Abbas Khaleel, allowed persons to use the path-way, we do not see why it should not be taken to be one in assertion of a right of the owner of the building Rushkrum and should be deemed to be only as permissive by the sufferance of the owner of "Khaleel Mansions". There is nothing unnatural or artificial in holding that as manager of the premises Rushkrum, Khale....
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....the right of way need not openly proclaim that they are doing so because they have a right to do so. The true meaning of the expression "as of right" is that the enjoyment of the right should not be secret or by stealth or by sufferance or the leave and licence of another person. It should be nec precario . Dependence on the will of another, would render the right precarious by robbing it of all freedom and volition on the holder of the right. Under the English law a presumption that the exercise was as of right can be inferred from long user. In Phillips v. Halliday, 1891 AC 228, Lord Herschell stated- "It is a well settled principle of English law that the right should be presumed in such cases to have a legal origin if such legal origin is possible; and the Court will presume that all those acts were done and those circumstances existed which were necessary for the creation of a valid title. Every presumption is made in favour of long user; and not only ought the Court to be slow to draw an inference of fact which would defeat a right that has been exercised during a long period, unless such, inference is irresistible, but it ought to presume everything that it is reasonably ....
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....ests which could be applied to find out whether a user was one as of right or not it would not be improper for any Court to draw an inference from long user as such that it was rather as of right than not. We are satisfied that on the evidence on record which has been adverted to and dealt with not merely by the Courts below but also by our learned brother Kailasam, J., that in this case the user of the right of way through A B C P was, of course, as of right. As we have already pointed out the lower appellate Court committed the error of assuming that the user must have been permissive because of the fact that the properties remained under the common management of Khaleel Shirazee for a long number of years. We therefore reject the first contention raised on behalf of the defendants. 13. It will now be convenient to refer to the third contention before we discuss the question of implied grant of easement, viz., that the acquisition of prescriptive right was not complete due to interruption. The argument based upon discontinuance or interruption of the right is put forward thus. The military authorities took on lease both Khaleel Mansions and Rushkram and obtained possession in th....
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....h cases, Ladyman v. Grave, (1871) 6 Ch A 763, Mallam v. Rose, 1915 2 Ch 222, that the period before the break could be tacked on to the subsequent period of enjoyment after severance of unity, cannot be followed in cases arising under the Indian Act. What the statute requires is an unbroken and continuous stretch of 20 years enjoyment and not an over all period of 20 years with intermittent enjoyment in patches. The question now is whether there are enough facts to show that the two premises were in common occupation of a single tenant before the prescriptive period had run out. The plea in the written statement is both the premises came to be occupied by the military authorities in the beginning of 1945. The exact date does not appear from the records. The necessary facts sufficient to establish suspension of easement rights invoking the aid of Section 49 of the Act on the doctrine of unity of possession are hardly, present. We must, however, point out with respect to Kailasam, J., that his observation that the easement is not extinguished by the dominant and servient tenements vesting in the same person as lessee, is somewhat wide. The question involved in the case is not whethe....
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....an implied grant is quite untenable. 15. An easement may arise by implication under a grant, if an intention to grant can properly be inferred, either from the terms of the grant, or from the circumstances. An easement may also arise, by what may be called a constructive grant, from general words in the grant, read in the light of the circumstances. (See Gale on Easements, 13th Edn. page 67-68). It is the intention of the grantor whether he can be presumed to have intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. For example in Roberts v. Karr, 1809-1 Taunt 495 , one Pratt had released to Campaign land of unequal width, described as abutting east on a new road en Pratt's own land. It abutted in the widest part on the road; but in the narrower part a strip of the grantor's land (which he alleged that he had intended to reserve) intervened between the road and the premises granted. The question arose whether Compigne....
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.... on the footing of an implied grant. 17. We have now to consider the effect of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 44 of 1954, on the plaintiffs right of easement. The contention urged by Mr. Gopalaswami Aiyangar is that under Section 12 of the Act the property, Khaleel Mansions, which became the property of the evacuee Abbas Khaleeli vested in the Central Government "free from all encumbrances". Reliance is placed on Section 12, Sub-section (2) which reads: "On the publication of a notification under sub-section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall .vest absolutely in the Central Government free from all encumbrances." It is urged that an easement claimed on a property amounts to an encumbrance and that the alleged right of way, if any, across Khaleel Mansions became extinguished by reason of the operation of Section 12(2) of the Act. There cannot be any doubt that the evacuee property notified by the Central Government under Section 12....
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....ral proprietary right of another person. An encumbered right, that is a right subject to a limitation, is called servient while the encumbrance itself is designated as dominant. Dealing with encumbrances Salmond in his book on Jurisprudence, 11th Edn. at page 294, observes as follows: "It frequently happens that a right vested in one person becomes subject or subordinate to an adverse right vested in another. It no longer possesses its full scope or normal compass, part of it being cut off to make room for the limiting and superior right which thus derogates from it. Thus the right of a landowner may be subject to, and limited by, that of a tenant to the temporary use of the property; or to the right of a mortgagee to sell or take possession; or to the right of a neighbouring landowner to the use of a way or other easement; or to the right of the vendor of land in respect of restrictive covenants entered into by the purchaser as to the use of it; for example, a covenant not to build upon it." In its widest sense the word "encumbrances" must necessarily include a right of easement such as a right of way. 19. Mr. Gopalaswami Aiyangar places reliance upon the decisions dealing wit....
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....er the property acquired under the Land Acquisition Act to go to his property which is not acquired and if there is no other access to his property, the acquiring authority would certainly take into account that fact before acquiring the servient tenement and safeguard the interest of the objector, viz., the owner of the dominant tenement. It stands to reason to assume that in such cases either the acquisition will be dropped or an alternative right of way would be provided for, for the objector. But there is no such provision for objection in the Displaced Persons (Compensation and Rehabilitation) Act of 1954, and if the construction contended for by the appellants were to be accepted he would practically be remediless. We are quite unwilling to hold that the word "encumbrance" in the Displaced Persons (Compensation and Rehabilitation) Act should include a right of easement following the decisions rendered under the Land Acquisition Act. 20. Giving the word "encumbrances" its full and comprehensive meaning in interpreting Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, the position that would emerge is this. Easement is an encumbrance; the statute vest....
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....iding for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage money out of the amount due to the mortgagor as compensation. This section embodies the principle known as substituted security. It is an equitable rule that where a claim is enforceable against a particular property and the title to that property is divested from the obligor the claim would be enforceable against its equivalent in his hands or with his representatives. Even in cases of a charge or lien the same principle might be invoked though in terms of Section 73(2) would apply only to mortgages as such. There is no provision either under the Displaced Persons (Compensation and Rehabilitation) Act or under the rules framed thereunder for payment or any compensation to the person who is deprived or a right of easement by reason of the vesting of the property in the Central Government. We are of opinion that in the context of the object and purposes of the Displaced Persons (Compensation and Rehabilitation) Act, the encumbrances referred to in Section 12 of the Act would only mean those encumbrances in respect of which the holder would be in a position t....