Doctrine of Lost Grant in Indian Law

The Doctrine of Lost Grant in Indian Law: Evolution, Application, and Contemporary Relevance

Introduction

The “doctrine of lost grant” is a common-law fiction that permits courts to presume a lawful grant of a right or interest in property when immemorial, uninterrupted and peaceable user cannot otherwise be given a legal origin. Although conceived in medieval English law to overcome evidentiary obstacles posed by the requirement of prescription “since time immemorial” (1189), the doctrine was received—albeit cautiously—into Indian jurisprudence during the colonial period. Its modern relevance is neither codified nor frequent, yet Indian courts continue to invoke it in niche areas such as temple endowments, easements, and communal rights where documentary origins are obscured by antiquity. This article critically examines the contours of the doctrine within Indian law, analyses leading authorities, and explores its interaction with statutory prescription, custom, and adverse possession.

Historical Origins and Reception in India

In Lakshmidhar Misra v. Rangalal (Privy Council, 1949) the Board traced the doctrine’s genesis to English prescription rules and emphasised that it was “a technical device” to validate long user despite the impossibility of proving user before 1189.[1] The Board cautioned, however, that the doctrine presupposes a capable grantor and grantee and cannot sustain rights claimed by a fluctuating and indeterminate body of persons. Indian High Courts quickly absorbed these qualifications. In Nani Gopal Dutta v. Kshitish Chandra Banerjee (Calcutta HC, 1949) the Court rejected a plea of lost grant because the putative grantee—“the villagers”—was incapable of taking.[2]

Conceptual Distinction from Prescription, Custom and Adverse Possession

Prescription under the Limitation Act, 1963

Sections 25 and 27 of the Limitation Act govern acquisition and extinction of easements and property by prescription. Unlike lost grant, prescription is statutory and time-bound; it does not rely on a fictional conveyance but on the completion of a statutory period of hostile, open and continuous enjoyment. The Supreme Court’s adverse-possession trilogy—Karnataka Board of Wakf (2004), P.T. Munichikkanna Reddy v. Revamma (2007), and Chatti Konati Rao (2010)—illustrates the increasingly stringent evidentiary demands for such statutory acquisition.[3]

Customary Rights

Where the putative right is held by an ascertainable local community, courts more readily infer a custom than a lost grant. The Privy Council in Lakshmidhar Misra held that “the true legal basis” of villagers’ collective rights is custom, not grant.[1] The Supreme Court echoed this stance in Raja Braja Sundar Deb v. Moni Behara (1951) when refusing to presume a grant for a fluctuating body of fishermen and instead evaluated their claim under customary law.[4]

Essential Elements and Limitations

  • Long, continuous, open and peaceable user: The claimant must establish immemorial or ancient enjoyment unexplained by documentary title.
  • As of Right: The user must be exercised without force, secrecy or permission.
  • Capable Grantor and Grantee: Both parties must legally exist and be competent to contract at the notional date of the grant (Jamila Khatun v. Kshetra Mohan Biswas, 1946 Cal HC).[5]
  • No Inconsistency with Statute: The presumption cannot override express statutory requirements, e.g., registration mandates for temporal trusts under the Tamil Nadu H.R.&C.E Act.
  • Rebuttability: The fiction may be displaced by evidence showing that a grant was impossible or that user was permissive (Robert v. Christa Babu, Kerala HC, 2022).[6]

Judicial Elaboration

Raja Braja Sundar Deb v. Moni Behara (1951)

The Court refused to presume a lost grant of exclusive fishery rights in favour of village fishermen, holding that the group was neither a corporation nor a determinate body capable of taking. The decision crystallised the “capable grantee” requirement and remains the locus classicus on the doctrine’s inapplicability to indeterminate classes.[4]

C. Periaswami Gounder v. Sundaresa Ayyar (1964)

While examining the ownership of varam (shares of produce) attached to temple lands, the Supreme Court acknowledged the doctrine but found that inam registers conclusively rebutted the presumption. The case illustrates that documentary evidence of title defeats the fiction of lost grant.[7]

Commissioner, H.R.&C.E. Mysore v. Sri Ratnavarma Heggade (1976)

The Court reviewed English authorities and observed that although “technical requirements” of English trusts are unnecessary in India, the essentials—certainty of subject-matter, object and obligation—still govern presumptive dedications. The doctrine was ultimately held inapplicable where statutory machinery under the Mysore Religious Endowments Act provided an alternative legal framework.[8]

Tulsi Ram v. Mathurasagar Pan (2002)

Reiterating Raja Braja Sundar Deb, the Court declined to infer a lost grant for a fluctuating community of Dhimars enjoying fishing rights, emphasising the absence of a capable grantee and the availability of customary analysis.[9]

High-Court Applications

The Patna High Court in Rajpur Colliery Co. v. Pursottam Gohil (1958) successfully presumed a lost grant of a right of way where individual lessees exercised the right openly for 21 years and a capable grantor (landlord) existed.[10] Conversely, Kerala High Court decisions such as Madayi Kimhiraman Nair v. Tharamel Kunhabdulla (2015) caution that courts should not invoke the doctrine unless specifically pleaded and proved.[11]

Interaction with Adverse Possession and Easements

Modern Indian courts increasingly favour statutory adverse possession over the equitable fiction of lost grant. In P.T. Munichikkanna Reddy the Supreme Court underscored the requirement of animus possidendi and disapproved of lax presumptions that undermine registered ownership.[12] The rigour applied in adverse-possession cases indirectly narrows the practical scope for lost-grant arguments, which lack codified time-limits and rely on judicial discretion.

Regarding easements, Section 15 of the Indian Easements Act, 1882 codifies prescription but does not incorporate lost grant. Yet pre-Act rights are saved by Section 2(c), enabling courts—where necessary—to rely on the doctrine for ancient easements created before 1882, as recognised in Janardan Ganesh Khadilkar v. Ravji Bhikaji Kondkar (Bombay HC, 1917).[13]

Statutory and Constitutional Context

  • Limitation Act, 1963: Sections 25–27 govern prescriptive acquisition and extinction but are silent on lost grant, leaving the doctrine to common law.
  • Indian Easements Act, 1882: Section 15 provides a statutory mechanism for easements by prescription; Section 2(c) preserves pre-Act rights, furnishing residual space for lost grant.
  • Evidence Act, 1872: Sections 114 and 115 enable courts to draw presumptions and apply estoppel, doctrinally supporting the fiction where direct evidence is unavailable.
  • Articles 300-A & 19(1)(f) (pre-1978): Constitutional property rights necessitate cautious use of presumptions that divest title without due process.

Critical Appraisal

The doctrine of lost grant serves as an equitable tool to protect long-standing arrangements where documentary trails have vanished. Nevertheless, its application in post-independence India has been constricted by:

  1. The enactment of comprehensive limitation statutes providing clearer, time-bound mechanisms for acquisition of rights.
  2. Judicial insistence on determinacy of parties, thereby excluding communal and public rights more appropriately analysed under custom or dedication.
  3. The availability of archival, cadastral and digital land records, reducing evidentiary gaps that once justified the presumption.
  4. Heightened constitutional protection of property, compelling courts to balance equitable presumptions against the sanctity of registered title.

Nonetheless, the doctrine retains vitality in niche contexts—particularly temple endowments and private easements predating statutory codification—where it operates as a safety-valve preserving settled expectations without unduly enlarging adverse-possession jurisprudence.

Conclusion

The Indian judiciary recognises the doctrine of lost grant as a narrow, equitable exception rather than a broad means of conferring title. Its deployment is conditioned by rigorous prerequisites: determinate parties, ancient and peaceable enjoyment, and the absence of contradictory documentary title. While modern statutory regimes on prescription and adverse possession overshadow the doctrine, it remains a useful judicial device for reconciling historical realities with contemporary notions of justice, particularly in religious and easementary contexts. Courts must, however, apply it sparingly to avoid unsettling registered ownership and to maintain coherence with statutory law.

Footnotes

  1. Lakshmidhar Misra & Ors. v. Rangalal & Ors., 1950 AIR PC 56.
  2. Nani Gopal Dutta v. Kshitish Chandra Banerjee, 1949 Cal 108.
  3. Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779; P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59; Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316.
  4. Raja Braja Sundar Deb v. Moni Behara, 1951 SCR 431.
  5. Jamila Khatun v. Kshetra Mohan Biswas, 1946 Cal 114.
  6. Robert v. Christa Babu, 2022 Ker HC.
  7. C. Periaswami Gounder v. Sundaresa Ayyar, 1964 SC.
  8. Commissioner H.R.&C.E. v. Sri Ratnavarma Heggade, (1976) SC.
  9. Tulsi Ram v. Mathurasagar Pan, (2002) SC.
  10. Rajpur Colliery Co. v. Pursottam Gohil, 1958 Pat HC.
  11. Madayi Kimhiraman Nair v. Tharamel Kunhabdulla, 2015 Ker HC.
  12. P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59.
  13. Janardan Ganesh Khadilkar v. Ravji Bhikaji Kondkar, 1917 Bom HC.