IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 RSA.No. 1137 of 2009() ---------------------- AS.55/2000 of SUB COURT, OTTAPPALAM OS.99/1994 of MUNSIFF-MAGISTRATE COURT,PATTAMBI .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------ MOIDUNNY,S/O. THACHARAVIL PALLATH AHAMMEDUNNY,RESIDING AT KAVUKODE AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): RESPONDENTS/DEFENDANTS: ---------------------------------- 1. IBRAYIN, S/O.THACHARAVIL PALLATH AHAMMEDUNNY, RESIDING AT KAVUKKODE AMSOM DESOM, OTTAPALAM TALUK. 2. FASALU,S/O. DO IN DO DO. 3. FATHIMA ALIAS PATHUMOL, W/O.P.A.MUHAMMADALI, RESIDING AT POKKAKKILLAM, ARIYANNUR, THRISSUR DISTRICT. 4. MUHAMMED, S/O. THAVARAPARAMBIL KUNHAHAMMED, RESIDING AT KAVUKKODE AMSOM DESOM, OTTAPALAM TALUK. ADV. SHRI K.P.SUDHEER FOR R2 (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1137 of 2009 -------------------------------------- Dated this the 12th day of March, 2010. JUDGMENT One of the substantial questions of law urged for a decision is whether transfer of right of easement which should run with the dominant tenement to the servient owner is hit by Section 6(c) of the Transfer of Property Act (for short, “the Act”)?Second Appeal arises from judgment and decree of learned Sub Judge, Ottapalam in A.S.No.55 of 2000 confirming judgment and decree of learned Munsiff-Magistrate, Pattambi in O.S.No.99 of 1994. Appellant filed the suit seeking a declaration of his right of easement to draw water from plaint B schedule belonging to the respondents for the beneficial enjoyment of plaint A schedule belonging to him and in case Ext.B6, registered document dated 27.8.1990 is found to be in any way interfering with that right of his, for a declaration that the said document is void and for injunction to restrain respondents from interfering with his right of easement. According to the appellant, respondents obstructed his right of enjoyment of easement in the year, 1984 following which he filed O.S.No.64 of 1984 to establish his right and got a favourable decree which was confirmed in A.S.No.136 of 1985. Later appellant filed E.P.No.3 of 1990 for restoration of water chal to the plaint A schedule. At that time he was summoned to the police station where he was coerced to enter into an agreement with the respondents and to execute a document at the office of the Sub Registrar. It is accordingly that Ext.B6 RSA No.1137/2009 2 happened to be executed. He claimed that he was laid up for long and recently learnt about nature of the document that was got executed and registered by him. According to the appellant, right of easement cannot be transferred apart from the dominant tenement. Respondents denied the allegations and contended that the right which the appellant had, was transferred in favour of respondent No.4 as per a registered assignment deed (Ext.B6). They denied the allegation of coercion in getting Ext.B6 executed and contended that the suit at any rate is barred by limitation. Trial court answered the issues in favour of respondents and dismissed the suit. That was confirmed by the first appellate court. Hence the Second Appeal. Correctness of the finding of the courts below that the suit is barred by limitation is also urged as a substantial question of law. 2. Ext.B6 is the registered assignment deed dated 27.8.1990 executed by the appellant in favour of respondent No.4. Ext.B6 purports to assign appellant's right of easement in favour of the respondent No.4 for consideration. Contention raised is that under Section 6(c) of the Act there is a bar to transfer right of easement apart from transfer of dominant tenement. 3. An easement is a private proprietory privilege appurtenant to a dominant tenement. It is exercised for the beneficial enjoyment of the dominant tenement. Katyar, in 'Law of Easements and Licences in India' points out that easement belongs to that class of rights which are known as “iura in re aliena” or “servitudes” in Roman Law. An easement exists solely for the benefit of the RSA No.1137/2009 3 dominant tenement, is always appurtenant to the dominant tenement, is inseparably attached to it and cannot be severed from it and made a right in gross. A thing in gross exists in its own right, and not as an appendage to another thing. An easement cannot be in gross, for it must be a right over one peace of land and hence cannot be transferred without the land that has the benefit of the easement. Section 6(c) of the Act prohibits transfer of an easement apart from the dominant heritage. Reason is that as indicated above an easement cannot be detached from the dominant tenement but passes with it as a 'legal incident' of the property transferred unless a different intention is expressed or necessarily implied as is made clear by Section 8 of the Act and Section 19 of the Indian Easements Act. The expression 'incident' is defined in Wharlon's Law Lexicon as “a thing necessarily depending upon, appurtaining to, or following another that is more worthy as rent is incidental to a reversion.” Hence by virtue of Section 6(c) of the Act an easement cannot be transferred apart from the dominant tenement. 4. Section 38 of the Easements Act states that an easement is extinguished when the dominant owner releases it, expressly or impliedly to the servient owner. Gale on Easements, 10th Edn. at page 462 and Peacock in the Law Relating to Easements in British India at page 529 state that an easement may be extinguished by express release. An easement may be released in favour of the owner of servient tenement but such a release effects not as a transfer of easement but an extinction of the easement. The power of dominant RSA No.1137/2009 4 owner to release an easement appurtenant to the dominant tenement is commensurate with his power to alienate the dominant tenement. Chitty, J. has stated in Kritodhone Mitter v. Nandarani Dassee ((1908) 35 ILR (Cal.) 889; “............An easement can be extinguished by the dominant owner releasing it expressly or impliedly to the servient owner and if it was so expressly released, it would in my opinion be an alienation of a portion of the property attached...............” Here, appellant who is the dominant owner has “assigned” his right of easement in favour of respondent No.4, the servient owner. As per Ext.B6, there is an assignment of appellant's right of easement in favour of respondent No.4, the servient owner and that amounts to an extinguished of the easement under Section 38 of the Easements Act. An extinguishment of easement by the dominant owner by assigning or releasing the same in favour of the servient owner is not hit by Section 6(c) of the Act. What Section 6(c) of the Act prohibits is a transfer of easement apart from the dominant tenement by the dominant owner to a person not being the servient owner. 5. So far as the contention that Ext.B6 is executed by coercion is concerned what is available is only evidence of appellant as PW1 which is denied by the respondents and they have given oral evidence in that line. Not even an attempt was made to summon the police officer who is said to have RSA No.1137/2009 5 coerced the appellant to execute Ext.B6. Merely based on the interested version of appellant as PW1 a registered document cannot be avoided as vitiated by coercion. 6. Assuming that the allegations are correct, that does not make Ext.B6 void but it is only voidable at the option of appellant. Ext.B6 is executed on 27.8.1990 and the suit is filed in the year, 1994 requesting that the said document may be declared void or be cancelled. Under Article 59 of the Limitation Act period of limitation provided for a suit to cancel or set aside an instrument is three years commencing from the day facts entitling the plaintiff to have the instrument cancelled or set aside becomes known to him. To say that appellant was laid up for some time will not save or extend the period limitation. The further allegation is that appellant learnt about the alleged fraud in getting Ext.B6 executed only recently. Even his case is that it was under coercion that he was made to execute Ext.B6. If so appellant must and should have been aware of the coercion right at the time of execution of Ext.B6 on 27.08.1990. According to the learned counsel appellant was unaware of the contents of Ext.B6 but there is no case that he is illiterate or had any defect in vision. This Court in Mathu v. Cherchi (1990 (1) KLT 416) stated that when the person executing the deed is neither blind nor illiterate plea of non est factum is not available to him and that executant is bound by the deed even though he has not read or understood it. The Supreme Court in Grasim Industries RSA No.1137/2009 6 Limited and another v. Agarwal Steel ((2010) 1 SCC 83) stated that when a person signs a document, presumption is that he had read the document properly and understood it and only then affixed his signature thereon unless there is proof of force or fraud. I do not find any such evidence in this case to think that unaware of the contents appellant executed the document and got it registered. As such courts below are legally and factually correct in holding that the allegation of fraud and coercion are not established and at any rate the suit is barred by limitation. No substantial question of law in that regard is also involved. Resultantly Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks