Interpretation Of StatuesASSIGNMENT

SUBMITTED BY:

NAME: PRAGYA SINGH

ENROLLMENT NUMBER: 04816503820

COURSE: BA-LLB

YEAR: Fourth

SUBMITTED TO : Ms. Sarita Ranga

Title: “Customary Easement”

Customary Easement

Abstract

Easement in a layman’s language can be said as " the right of way which one landowner, A, may
1
enjoy over the land of another, B" In India, the concept of easement has been defined under
Section 4 of The Indian Easements Act, 1882. According to the provisions of Section 4, an
Easementary right is a right possessed by the owner or occupier of the land on some other land,
not his own, the purpose of which is to provide the beneficial enjoyment of the land. This right is
granted because without the existence of this right an occupier or owner cannot fully enjoy his
own property.2It includes the right to do or continue to do something or to prevent or to
continue to prevent something in connection with or in respect of some other land, which is not
his own, for the enjoyment of his own land.

In the words of great jurist Salmond, easement is that legal servient which can be exercised on
some other piece of land specifically for the beneficial enjoyment of one’s own land. Right of
easement is basically a form of privilege, the integral part of which is to do an act or prevent
certain acts on some other land for enjoyment of one’s own land.3

The easementry rights can be acquired in two ways they are, Express grant and implied consent.
In express grant the easement can be made by inserting the clause of granting such a right in the
deed of sale, mortgage or through any other form of transfer. This involves expressing by the
grantor of his clear intention. If the value of the immovable property is Rs.100 or above then it
compulsory for it to be in writing and duly registered. On the hand implied consent consist of,
Easement of Necessity, Quasi Easements,Prescriptive Easements and Customary
easements.4

In this research paper the researcher has specifically dealt with the concept of Customary
easements in detail which is one of the way of acquiring easementary rights. To have a better

1 Gray, Kevin J.; Susan Francis Gray (2009). Elements of Land Law(5th ed.). Oxford: Oxford University Press.
p. 13. ISBN 9780199219728. OCLC 231883446.
2 Availabe at<https://blog.ipleaders.in/an-overview-law-of-easements-in-india/>accesed on 10 th October,2021.
3 Ibid.
4 available at<https://blog.ipleaders.in/an-overview-law-of-easements-in-india/>accesed on 10 th october,2021.

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Customary Easement

understanding of the concept of customary easement this topic has been further divided into five
sub chapters. The first chapter briefly explains the concept of customary easements. The second
chapter explains a very necessary concept of customs and its essentials in order to have better
clarity of the concept of Customary easements. The third chapter examines whether the
customary easement is an easement in true sense or not. The fourth chapter deals with the
distinction between customary rights and customary easements. The last but the least chapter
examines whether burying a dead in the land of other an customary easement.

AIMS AND OBJECTIVES

1) Critically study and analyze the concept of Customary Easement.

2) To get clear understanding about the concept of customs and its essentials.
3) To critically examine whether customary easement is an easement in true sense or not.
4) To briefly study the difference between customary easement and customary rights.
5) To study whether burying a dead in the land of other an customary easement.

HYPOTHESIS

The researcher while making this project report hypothises that:

a) Customary easement is not an easement in true sense.

b) Custom plays a very significant role in order to constitute Customary easements.

RESEARCH QUESTIONS

1) What is Customary easement?

2) What is custom and its essential?
3) Whether customary easement is an easement in true sense ?

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Customary Easement

4) What is difference between customary right and customary easements?

5) Whether burying a dead in the land of other an customary easement?

RESEARCH METHODOLOGY

The researcher will do doctrinal type of research in which she will go through both the primary
and secondary sources. The researcher through this methodology will be able to get an exact
picture of the problem in question. The doctrinal method helps in doing a comparative study of
the topic. This methodology helps in going through not only the work of one eminent person but
of many other too. The researcher plans to go through various articles and journals to understand
the play of many other too. The researcher plans to go through various articles and journals to
understand the concepts of Customary Easements.

LIMITATION OF THE STUDY

The researcher having read the legislations, commentary, and reports itself could understand
the problem clearly but it would have been clearer if he would have read commentary of more
writers. The researcher has limited time for the project so the researcher has strictly followed
the boundary and has studied only with reference to Indian authors, experts, cases, etc. The
historical need and background is also necessary for having a bird’s eye view of the particular
topic and it gets developed only by effective and extended reading over a long period of time.
But the required materials are not available through the e- resource access of our library.. The
researcher has a restricted access to the various reports and other form of relevant literature
but a huge portion of require literature is not available at the researcher’s disposal due to

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Customary Easement

limited access and paucity of time as well. But still researches has tried to produce a good
work.

MODE OF CITATION

The researched has followed Blue Book Citation (20th Edition) in this project report.

Customary easements

The Indian Easements Act, 1882 refers to the different methods by which easements are
acquired. They are, as pointed out in Ramkanya Bai v. Jagdish,5 the following:

1. easements by grant: a grant by the owner of the servient heritage

2. easements of necessity: based on implied grants or reservations made by the owner of a
servient heritage at the time of transfers or partitions
3. easements by prescription: acquired by peaceable and open enjoyment, without
interruption for twenty years and
4. customary easements: acquired by virtue of a local custom
Customary easement is an easementary right can be acquired by virtue of a local custom.
Section 18 of the Indian Easement Act, 1882 of the Act provides for it.

The Supreme court in the case Ramkanya Bai v. Jagdish6,has pointed out that the customary
easement is most difficult to prove among the easements.In customary easements both custom
and easement are involved which means in other words, to claim customary easement both ,
custom and prescriptive easement are to be proved. 7

F. Peacock has classified easements arising by custom into four classes:8

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Customary Easement

5
AIR 2011 SC 3258.
6
AIR 2011 SC 3258.
7
Lachhi v. Ghansara Singh, AIR 1972 HP 89.
8
Available at <https://lawpage.in/property_law/easement/customary-easements>accessed on 16 th October, 2021.
1. Right of pasturage,

2. right of privacy,

3. rights of sport and recreation, and

4. rights connected with religious observances.

Illustrations of Customary easements: 5

a) By the custom of a certain village every cultivator of village land is entitled, as

such, to graze his cattle on the common pasture. A having become the tenant of a
plot of uncultivated land in the village breaks up and cultivates that plot. He
thereby acquires an easement to graze his cattle in accordance with the custom.

It was held in Chandgi Ram v. Ram Lal, 6 that the customary easement of having access to ones
field would be available to tenants of land newly brought under cultivation and that the above
customary easement was so well known that the court could give effect to it even if it was not
pleaded in the plaint.

A customary easement can be claimed by a family or an individual, and such claim need not be
by a large community alone. 7When the plaintiff sues in his personal capacity with respect to a
customary easement the suit is maintainable in spite of the non-compliance with the provisions of
Order 1, Rule 8, Civil P.C. 8To constitute a customary easement the right claimed must be an
easement and it must be in virtue of a local custom. A customary right of uninterrupted user is
quite different from setting up a local custom.

5 Section 18 of The Indian Easements Act, 1882.

6 AIR 1963 Raj 161.
7 R. Venkateswara Raju v. State of AP, 2020 Supreme (AP) 206.
8 Jugal Kishore v. Umrao Singh, AIR 1949 All 272.

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Customary Easement

It is also pointed out that different persons may have a right of pasture over a land, but the
plaintiff can nonetheless claim a right independent of others, provided the necessary conditions
are satisfied. A customary easement, as is obvious, embraces the needs of variable persons

belonging to a class or locality, while a right by prescription is always personal. Therefore,

customary easement is unappurtenant to any dominant tenement, or it has no relation to the
beneficial enjoyment of a dominant tenement as required in easement. A fluctuating body like
the inhabitants of the locality cannot claim an easement as can be done in customary easement.
Easements are private rights belonging to particular persons while customary rights are public
rights annexed to the place in general. 910

14
It is observed in R. Venkateswara Raju v. State of AP, , that customary easement, as
provided under Section 18 of the Easements Act, is an amenity to the land own and possessed by
the farmers within the vicinity, since the same is being used as cart track and thrashing floor. In
Lachhi v. Ghansara Singh, 11it is held as under:

“Different persons may have a right of pasture over a land, but the plaintiff can nonetheless
claim a right independent of others, provided the necessary conditions are satisfied. A
customary easement, as is obvious, embraces the needs of variable persons belonging to a
class or locality, while a right by prescription is always personal. These observations I have
made, so that the evidence is properly appreciated, while the case goes back to lower Courts.”

b) By the custom of a certain town no owner or occupier of a house can open a new
window therein so as substantially to invade his neighbour's privacy. A builds a
house in the town near B 's house. A thereupon acquires an easement that B shall
not open new windows in his house so as to command a view of the portions of A
's house which are ordinarily excluded from observation, and B acquires a like
easement with respect to A 's house.

9 Brahma Nand VS Teju Ram, 2019-195 AIC 584.

10 Supreme (AP) 206.
11 AIR 1972 HP 89.

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Customary Easement

Right of Privacy

According to the illustration (b) of Section 18 right of privacy is a customary right and there is no
such thing as a natural right of privacy recognised by law anywhere in India. It is only a
customary easement arising by virtue of a local custom.

A Village pathway is a good example of Customary easement

It is observed in Yohannan Vs. Mathai, 1991-1 Ker LJ 605, 1991 KHC 571 that customary
easement originates in a valid custom and vest in all owners of certain tenements within a
particular locality, who form a class, for whose benefit the custom prevails 12. It can be claimed
only as appurtenant to some dominant tenement and not independently as customary rights.
village pathways based on customary rights vested in the people of the locality are not public
highways.13

Custom and its essential

During the earlier ages the customs were the most important, and in some cases, the sole source
of law. In every legal system at all stages of legal development there are some customs, but in
advanced societies they are more rationalizes, and are certain and definite. Custom, as a supply
of law, involves the study of a variety of its aspects: its origin, and nature, its importance, reasons
for its recognition, its classification and the necessity of a valid custom.14

Halsbury’s Laws of England defines custom as under:

“A custom is a particular rule which exists either actually or presumptively from time
immemorial and has obtained the force of law in a particular locality.” 15

12 Laxmi Bai VS K. Komaraiah, 1998 2 ALD 23; 1998 2 ALT 229.

13 Narayani v. Govindan – 1968 Ker LT 626.

14 Available at <https://www.lawcolumn.in/essentials-of-valid-custom/>accesed on 17 th October, 2021.
15 [Manikrao v. Maheshkumar, 2011-5 MhLJ 345.]

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Customary Easement

Certain tests or essentials have been laid down by the jurists whom a custom must satisfy for its
judicial recognition. The following are essentials of valid customs:

a) Antiquity – A custom to be recognized as law must be proved to be in existence from the

time immemorial, time whereof the memory of man is not contrary. This is often the rule
of the English Law. This legal memory presumes to be going back to a fixed time.

English law fixed 1189 to test antiquity of a custom. But the presumption of law is that
the customs which are old and whose time origin cannot be ascertained must have started
before the year 1189.
It was found in Abid All Khan v. Secretary of State 1617, as under:63 “ A
custom, in order that it may supersede the ordinary law, must, besides being reasonable,
be ancient as well as certain. On the question whether a custom should also be
immemorial, there appears to be a difference of opinion.”
This view was also taken in the case of Kuar Sen v. Mamman, 21the view taken is that the
common law rule that the custom must have originated in remote antiquity does not apply
to India.
b) Continuance: The second essential of a custom is that it must have been practiced
endlessly. In England, the custom during the period from 1189 must have been enjoyed
continuously without any interruption. Continuity doesn’t mean that should not be
operating all the time. There should always be available in terms of availability of custom
to deal with rule of conduct. It means that if possession for a few times is disturbed,
however the claim to enjoy the custom is not abandoned, the custom continues18.
c) Certainty: A custom be certain. A custom that is obscure or indefinite cannot be
recognized. It is more a rule of evidence than anything else. The court must be satisfied
by a clear proof that custom exists as a matter of truth, or as a legal presumption of fact.
d) Consistency: The customs which ever are prevailed should not come in conflict with
other established customs. They should maintain consistency among the other customs.

16 AIR 1951 Nag 327.

17 All 87: (1995 AWN 10) and Mohidin v. Shivlingappa, 23 Bom 666: (1 Bom LR 170).
18 Available at <https://www.lawcolumn.in/essentials-of-valid-custom/>accesed on 17 th Ocrtober,2021.

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 Customary Easement

Therefore, it is said that one custom cannot be set in opposition to other customs.19
e) Reasonableness: A custom must be reasonable. A custom must be should be in
conformity with regard to basic morality. It should be prevailed as understanding of
justice, health and public policy. If the custom is not reasonable, then it cannot be
considered as a valid custom. Reasonability cannot be judged with every change of social
conditions. It is however said that every custom must not be perfect in its ethic and

morality, concerns, it is said that it should be reasonable and relevant and it should be
capable of understanding. It said that they include public policy among the tests of
custom. And the custom should not oppose the public policy. It should be reasonable
during comprehensive times, which would be helpful to be laid on as an example.20

It was held in Ganpatrao Madhorao Hatker v. Sheikh Badar Farid Musalman,21 that a
custom must be:

• reasonable and certain; and

• it must be proved that the user was not permissive,
• the user was not exercised by stealth,
• the user was not exercised by force, and
• that the right had been enjoyed for such a length of time as to suggest that by agreement or
otherwise the user has become the customary law of the locality.

Customary easement : not an easement in true sense

Customary easement isnnot an easement in true sense. Easements are private rights belonging to
particular persons and is only an accommodation in the servient tenement for the convenient
enjoyment of the dominant tenement. Customary rights are public rights annexed to the place in
general. Customary right is also different from customary easement.

19 Ibid.
20 Available at < https://www.lawcolumn.in/essentials-of-valid-custom/>accesed on 18 th October,2021.
21 AIR 1939 Nag 193.

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Customary Easement

An easement is always appurtenant to the dominant tenement and inseparably attached to it and
cannot be severed from it 22. Customary easement originates in a valid custom and vest in all
owners of certain tenements within a particular locality, who form a class, for whose benefit the
custom prevails. It can be claimed only as appurtenant to some dominant tenement and not

independently as customary rights. village pathways based on customary rights vested in the
people of the locality are not public highways.23

Custom gives rise to customary easements. But there is a vital difference between the two.
Easements Act deals with customary easements, but not customary rights. Customary rights are
rights arising by custom, but not attached to a dominant tenement. But a customary easement can
exist only for the beneficial enjoyment of other lands because it is merely appurtenant to a
dominant heritage and cannot exist in gross.24

Moreover, it was also observed in Amar Singh v. Kehar Singh 25that there is distinction
between easement and customary easement and pointed out that an easement is always
appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from
it. There can be no easement without dominant tenement and a servient tenement. Rights which
are by a community or class or persons by virtue of a customary right are not easement but are
right in gross. An easement must always be appurtenant to a dominant tenement. Indeterminate
and fluctuating body of persons such as the public or the community cannot have an easement.

22 Ram Chandra Sah v. Abdul Hannan and others, AIR 1984 Pat 313.
23 (Narayani v. Govindan – 1968 Ker LT 626 ).
24 (Ramachandra Singh v. Partapsingh and others, AIR 1965 Raj 217).
25 (AIR 1995 HP 82),

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Customary Easement

Parbhawati Devi v. Mahendra Narain Singh,26 it is held as follows:“A customary right is not
easement. An easement belongs to a determinate person or persons in respect of his or their land.
A fluctuating body like the inhabitants of the locality cannot claim an easement. Easements are
private rights belonging to particular persons while customary rights are public rights annexed to
the place in general. Customary right is also different from customary easement and Easements
Act does not at all deal with it. It expressly excludes it from its scope and purview. An easement
is always appurtenant to the dominant tenement and inseparably attached to it and cannot be
served from it. Where the fluctuating body of persons namely, the villagers and not a particular
person claimed easement to get water from a reservoir but there was nothing laid in the plaint as

to for which land dominant tenement, easement was claimed, no case of easement could be said
to have been made out.”

Customary Rights and Customary Easements

An easement may be acquired by virtue of a local custom, but all customs relating to the use and
enjoyment of the land are not easements. A custom for the freemen of Carlile to enter upon
private land for the purpose of holding horse-races thereon, a Custom of the inhabitants of a
place to hold sports on a village green, a custom for the inhabitants of a parish to enter upon
certain land in the parish and erect a Maypole thereon and dance round and about it; a custom of
certain Hindus of a certain place to go on a piece of land during some days at one period of the
year, and perform some ceremonies there, a custom of the Hindus of a certain place to burn Holi
or hold a festival on another’s land, a custom of Mohammedans of a certain locality to lay and
exhibit tazias on another’s land during Mohurrum, etc., are not easements but mere customary
rights. These rights are not appurtenant to any land, they belong to no individual in particular but
are enjoyed by any who inhabit a particular locality or who belong to a particular class.27

26 AIR 1981 Patna 133.

27 Available at <https://lawpage.in/property_law/easement/customary-easements>accesed on 25 th October,2021.

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Customary Easement

Easements are private rights belonging to particular persons while customary rights are public
rights annexed to the place in general. In the case of customary easements one or more
individuals by virtue of a local custom become entitled to an independent right in respect of his
or their estate situated in the locality to which the custom belongs. For instance, a right of
privacy is recognized by custom in the town of Agra ; hence if a person owns or occupies house
in Agra he acquires a right, by virtue of this custom that no neighbour of his will open a new
window in his house so as substantially to invade his privacy. Here by virtue of a local custom, a
private right (of privacy) is acquired by an individual in respect of his house. He does not share
this right in common with other residents of Agra and the right is not merely a personal right but
is annexed to his house. On the other hand a customary right to burn Holi on another’s land does

not belong to any particular individual and is not appurtenant to any land but is the common right
of the Hindus of a particular locality.2829

A customary right by its very definition cannot be created under a written instrument. There
cannot be a customary easement in favour of an individual. Customary easement acquired by
local custom can only be in favour of a defined class of people or community of a particular
locality.

It was observed in the case of Amar Singh and Others v. Kehar Singh and Others33

An easement is always appurtenant to the dominant tenement and inseparably attached to it

and cannot be severed from it.
A customary right is not easement.
An easement belongs to a determinate person or persons in respect of his or their land.
A fluctuating body of persons like the inhabitants of the locality cannot claim an easement.
Easements are private rights belonging to particular persons while customary rights are
public rights annexed to the place in general.

28 Available at <https://lawpage.in/property_law/easement/customary-easements>accesed on 27 th October, 2021.

29 KHC 1884.

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Customary Easement

Burry the dead in the land of other- not an Customary easement

There is difference of opinion on whether burying dead in the land of other is a customary right
or customarty easement. However it appears that the correct position is that it is not a customary
easement; because the the right claimed cannot be related to land (as we can in
customaryeasement, as shown above). In case of other rights claimed as customary easements,
they can be related to user of land, in one way or other. 30

Under English Law, an easement is a privilege alone; and profit-a-prendre (right to take) is not an
easement. The Indian Easements Act purposefully used “to do something in or upon”, decisively
avoiding, ‘to use’ or ‘to enjoy’; because, Indian Law allows ‘profit-a-prendre’ [fishing,
pasturing, grass-cutting for thatching, etc.]. It is allowed on Indian situations – without
conferring substantial interest in the servient land. ‘Profit a predre’ is not appurtenant to any
dominant land; and, in its very language, it is a right ‘in gross’ (for the benefit of individuals). As
shown earlier, though Profit-a-prendre is allowed in Indian Law, it is not a corporeal right on
land; and it does not allow maintaining a substantial interest over the servient land and there is no
profit-a-prendre ‘in gross’. 31

It is pointed out in Satyabhamakutty Pisharassiar v. Chinnathan Master (1976 Ker LT 78) a

right to bury the dead in the land of another claimed by a section of the inhabitants of a locality
can only be a customary right; and not an easement, as there is no question of beneficial
enjoyment of a dominant tenement. It is held in this decision as under:

“A right to bury the dead in the land of another claimed by a section of the inhabitants of a
locality can only be a customary right. It is a right claimed by a fluctuating body of persons. it is
a right claimed in respect of a particular locality. It is a right which does not arise from a gram. It
is not a claim by a defined person. It is not a claim that arises from the beneficial enjoyment of a
dominant tenement. So the right claimed cannot be an easement. if such a right is to be upheld by
30 Available at <https://indianlawlive.net/2021/06/25/village-pathways-and-right-to-bury-are-noteasements/>accesed
on 28th October,2021.
31 [See: Ramzan Momin v. Dasrath Raut, AIR 1953 Patna 138. Mathura Prasad v. Karim Baksh, 31 Ind Cas 805.]

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Customary Easement

courts it ‘should be immemorial in origin, certain and reasonable in nature and continuous in
use’. In view of the peculiar nature of the right involved, a finding on the question of actual
possession of the property cannot turn the tables against any party. Though the defendants
claimed it as an easement, it is not really an easement.”32

Conclusion

After analyzing various research paper, articles, books , journals and reports the researcher came
into conclusion that an easement which may be acquired in virtue of a local custom. are called
customary easements. Moreover customary right is not an easement as an easement belongs to a
determinate person or persons in respect of his or their land. A fluctuating body like the
inhabitants of the locality cannot claim an easement. Easements are private rights belonging to a
particular person while customary rights are public rights annexed to the place in general.
Customary right is also different from customary easement and Easements Act does not at all
deal with it. It expressly excludes it from its scope and purview.

There is distinction between easement and customary easement and pointed out that an easement
is always appurtenant to the dominant tenement and inseparably attached to it and cannot be
severed from it. There can be no easement without dominant tenement and a servient tenement.
Rights which are by a community or class or persons by virtue of a customary right are not
easement but are right in gross. An easement must always be appurtenant to a dominant
tenement. Indeterminate and fluctuating body of persons such as the public or the community
cannot have an easement.
32 Available at <https://indianlawlive.net/2021/06/25/village-pathways-and-right-to-bury-are-noteasements/>accesed
on 28th October,2021.

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Customary Easement

Moreover there can be no easement if the right claimed is incidents of ownership and if the
servient property belongs to him. Easement is a right with conscious knowledge that the servient
property does not belong to him.

BIBLIOGRAPHY

SOURCES OF DATA

The researcher will rely on both primary and secondary sources to complete the project.

❖ PRIMARY SOURCE

• INDIAN EASEMENT ACT,1882

• ALL INDIA REPORTER
• SCC
• MANUPATRA
❖ SECONDARY SOURCES
Blogs
Books
Journals
Magazine
Article

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Customary Easement

Websites

Websites

➢ https://lawpage.in/property_law/easement/customary-easements
➢ https://indianlawlive.net/2021/06/25/village-pathways-and-rightto-
bury-are-not-easements/
➢ https://www.lawcolumn.in/essentials-of-valid-custom/
➢ <https://blog.ipleaders.in/an-overview-law-of-easements-in-india/
➢ <https://blog.ipleaders.in/an-overview-law-of-easements-in-india/>

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