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property_law:easement:transfer-of-dominant-heritage

Transfer of dominant heritage passes easement

Section 19 of The Indian Easements Act, 1882.

Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place.

Illustration:
A has certain land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests in B and his legal representatives so long as the lease continues.

An easement a right running with the land

A similar provision is contained in section 8 of the Transfer of Property Act. An easement must go with the dominant heritage or be extinguished or suspended, it cannot be detached from it and made a right in gross. In section 19 the word easement means actual legal easements with servient and dominant heritages belonging to different persons and not those privileges or conveniences which are mentioned in section 13 as according to that section quasi-easements are not transferred unless they are apparent and continuous also.

In Dr. Dhananjan Bisen v. Devi Bai and Another1) the Hon'ble Madhya Pradesh High Court held that “with the transfer of the dominant heritage to the plaintiffs the easement on the servient tenement also stood transferred to him by virtue of S.19 of the Act. An easement annexed to the dominant tenement passes with it to the person in whose favour the transfer takes place. That is also the effect of S.8 of the Transfer of Property Act. An easement passes with the property for the beneficial enjoyment of which it exists, as a thing appurtenant thereto. As the benefit of an easement passes with the dominant tenement into the hands of subsequent owner of that tenement, similarly the burden of it passes with the servient tenement to every person into whose occupation the servient tenement comes”.

1)
AIR 2002 MP 79


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