Knox and Karamat Husain, JJ.:— One Sukhdei got a decree for a portion of certain buildings and the rest was given to Kedar Nath. It is admitted that the buildings before partition belonged to one owner and that the decree reserved no casement of way in favour of Kedar Nath.
Sukhdei, in execution of the decree, applied for the possession of the share allotted to her. Kedar Nath objected that he had the casement of way over the doorway in question. The court below granted the casement claimed by him. Sukhdei appealed to this Court, and her learned advocate contended that the court below, as an executing court, could not grant an casement which had not been awarded by the decree. We, by our order, dated the 11th of July, 1910, remitted the following issue to the Court below for trial:—“Is the doorway over which the lower court has granted the right of passage the only means of egress and ingress to the defendant's property?”
The findings of the court below are to the effect that a door can be opened on the north, in Kedar Nath's share, but that it will not be convenient, inasmuch as the utility of the house will be very much reduced, and that excepting the doorway in question there is no other possible and convenient means of egress and ingress to the share of Kedar Nath. The learned advocate of Sukhdei urges that the findings fail to establish an casement of necessity which is founded upon absolute necessity and not upon a more convenient use of the dominant tenement. This contention of the learned advocate in our opinion is sound.
The English Law on the subject is that an casement of necessity arises only when it is absolutely necessary, and not when it is necessary to the reasonable enjoyment of the dominant tenement.
The leading case on the point before us is Wheeldon v. Burrows, and was followed in Union Lighterage Company v. London Graving Dock Co. in which, at page 573, we find the following passage:—
“In my opinion an casement of necessity such as is referred to, means an casement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property.”
The cases of Wheeldon and Union Lighterage Company are referred to in Ray v. Hazeldine, and, as the judgement of Kekeich, J., is highly instructive, we quote the following portion therefrom:—
“If a vendor of land desires to reserve any right in the nature of an casement for the benefit of his adjacent land which he is not parting with, he must do it by express words in the deed of conveyance. That is settled la, and expresses the result of the decision in Wheeldon v. Burrows, where the Court of Appeal affirmed the decision of Bacon, V.C That is the general rule, but the rule is subject to certain exceptions. One of them is the well-known exception of an casement of necessity, that is to say, where the enjoyment of the alleged right over the adjoining land is necessary to the property which is not conveyed, then the court will consider the casement as impliedly reserved, though it has not been reserved by express words such casement, or right in the character of an casement, may be a right to the access of light to a particular window. In a large majority of cases a window which lights a room is deemed necessary to the lighting of that room and is, on the whole, essential to the comfortable enjoyment of that room, but it does not follow that the right to access of light is an casement of necessity where are you to draw the line? Suppose the blocking up of the window largely interferes with the comfort and enjoyment of the room, is the grantee of the adjacent land entitled to block it up, or does the exception stand? It seems to me that the line to be drawn is pointed out by Stirling, L.J, in Union Lighterage Co. v. London Graving Dock Co.. His Lordship makes a distinction between an casement of necessity and an casement necessary to the reasonable enjoyment of property. After refering to the to rules laid don in Wheeldon v. Burrwos and the exception thereto, he says:—
The appellants did not dispute that there is no express reservation in the conveyance to the plaintiffs, but they contended that the casement claimed by the defendants is an ‘easement of necessity’ within the recognized exception to the second rule. No, in the passages cited, the expression ‘way of necessity’ and ‘casement of necessity’ are used in contrast with the other expressions, ‘casements which are necessary to the reasonable enjoyment of the property granted’ and ‘casements… necessary to the reason-enjoyment of the property conveyed, and the word necessity in the former expression has plainly a narrower moaning than the word ‘necessary’ in the latter. In my opinion an casement of necessity such as is referred to means an casement without which the property retained cannot be used at all, and not merely necessary to the reasonable enjoyment of the property.’ Then after pointing out that the lights in Wheeldon v. Burrows was reasonably necessary to the enjoyment of the workshop, he says:— ‘So here it may be that the tie-rods which pass through the plaintiff's property are reasonably necessary to the enjoyment of the defendant's dock in its present condition, but the dock is capable of use without them, and I think that there cannot be implied any reservation in respect of them. That seems to me to draw the distinction between what is absolutely necessary and what is reasonably required for the enjoyment of the land or building as it stands. In my judgement this is a window to which the access of light cannot be reserved by implication upon the ground that the light is necessary to the pantry. It cannot be that there is any necessity by reason of its being used as a pantry, since it can be bused for some other purposes. It cannot be said that a special use of light attaches to it as a pantry, and to say, as the defendant does, that the access of light to that window is reserved to him by necessity is giving to the word ‘necessity’ a meaning which it does not bear in this connection.”
The reason of the Law that there must be absolute necessity is very well stated by Goddard. He says:—
“In support of this vie, the name by which they are known—easement of necessity—points to the fact that there must be absolute necessity before the Law will compel a land owner to submit to so detrimental a right as an casement in his land—a right in reality though not in theory imposed on his land against his will. It must be borne in mind no detrimental generally it is to an estate to be burdened with an casement, what a nuisance it is to an owner of land to have another person walking at his pleasure over a field, or digging through the surface, or erecting a steam-engine thereon, and no such rights may prevent building on land or using it in many of the ways the owner may desire.” Pp. 38, 39, 6th edition.
The above rule of the English la, so far as partition of land is concerned, is enacted in the following portion of section 13 of the Indian Easements Act (Act No. V of 1882).
“where a partition is made of the joint property of several persons.—
(e) if an casement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such casement.”…………………………………………… “The casements mentioned in this section, clauses (a), (c) and (e), are called casements of necessity.”
It may be noted here that the Indian Easements Act was extended to these provinces by Act No. VIII of 1891 on the 6th of March, 1891, and the case is governed by the Indian Easements Act.
Reading the findings of the court below in the light of the provisions of section 13 as to casements of necessity, we hold that Kedar Nath failed to prove facts which would entitle him to the right of way claimed, inasmuch as the user of that right is not absolutely necessary for the benefit of his share of the house. He certainly can open a door towards the north for access to his share. It is contended by his learned advocate that with reference to the existing state of the building and without any alteration therein, the use of the doorway in question for access to this share of the building is an absolute necessity. There is, whoever, no authority to favour the contention, and the share cannot be deemed to be absolutely useless without the right of way claimed.
For the above reasons we allow the appeal, set aside the decree of the court below and disallow the objection of Kedar Nath with costs.
Appeal allowed.