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property_law:easement:who-may-impose

Who may impose easements

Section 8 of The Indian Easements Act, 1882.

An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.

Illustrations
(a) A is tenant of B 's land under a lease for an unexpired term of twenty years, and has power to transfer his interest under the lease. A may impose an easement on the land to continue during the time that the lease exists or for any shorter period.
(b) A is tenant for his life of certain land with remainder to B absolutely. A cannot, unless with B 's consent, impose an easement thereon which will continue after the determination of his life-interest.
(c) A, B and C are co-owners of certain land. A cannot, without the consent of B and C, impose an easement on the land or on any part thereof.
(d) A and B are lessees of the same lessor, A of a field X for a term of five years, and B of a field Y for a term of ten years. A' s interest under his lease is transferable; B' s is not. A may impose on X, in favour of B, a right of way terminable with A 's lease.

Not only the owner but every person who possesses any interest in any property can grant an easement over it in the circumstances, and to the extent in and to which he can transfer his interest. For example, a tenant who has power to sublet can grant an easement over the demised premises for the term of the lease.

In the circumstances in which he may transfer his interest in the heritage

For example, “A” transfers Sultanpur to “B” on condition that he does not marry “C”. “B” imposes an easement on Sultanpur. Then “B” marries “C”. B’s interest in Sultanpur ends, and with it the easement is extinguished. Here B’s interest in Sultanpur is defeasible on his marrying “C” hence, if he wants to transfer Sultanpur or impose an easement on it, the transfer or the easement will be liable to become void on his marrying “C”. He cannot impose an easement on Sultanpur which may continue even after his interest in Sultanpur comes to an end.

Let us take illustration (c) of this section. “A”, “B” and “C” are co-owners of certain land. If A wants to impose an easement on the land he may either get his share partitioned and grant an easement upon it, or if he wants to impose an easement on the whole land or on any part of it which does not exclusively belong to him he must obtain the consent of “A” and “C” as well. These are the circumstances in which “A” can impose an easement on the land.

To the extent to which he can transfer, etc.

So that if a person has got only a life-interest in some property he cannot impose an easement thereon so as to continue after his life.

And has power to transfer his interest Under the lease

Illustration (a): A person may have an interest in land but if he has not got power to transfer it he cannot impose an easement over it as it will amount to parting in whole or in part with that interest, for example, if a tenant without power to sublet imposes an easement of a right of way over the land, it means he allows that other also to use the land to a more or less extent which is forbidden to him.

Case Laws

  1. The word “impose” means the creation of an easement by a voluntary act of the owner or lessee or any other person having power to transfer an interest in the servient heritage.1)
  2. The creation of a right of easement by grant is not a transfer of ownership as is contemplated by section 54 of the Transfer of Property Act and the document creating such an easement does not require registration.2) In Mathai v. Jordi Poulose @ Jordi3) Kerala High Court confirmed this decision.
  3. In Sri Prabir Guha And Ors vs Sri Uttam Chand Surana And Anr4) the Hon'ble Calcutta High Court held that any transfer of easement requires registration.
1)
42 Mad. 567
2)
Bhagwan Sahai v. Narsingh Sahai, 6 ALJ 871.
3)
2011 (2) KLT 605
4)
C.O. NO.3719 of 2008


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