A Stroke from Einstein’s Wisdom to Elucidate Reverse
Burden in Cheque Bounce Cases

Ashly Harshad, Advocate, Supreme Court

Einstein had famously said:

If I had an hour to solve a problem, I’d spend 55 minutes thinking about the problem and 5 minutes thinking about solutions”.

Explaining the above-mentioned quote, Justice Aravind Kumar in the judgment Rajesh Jain v. Ajay Singh(2023 (6) KLT 209 (SC)) stated,

“Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one’s ability to identify the problem. A well-defined problem often contains its own solution within it.”

It’s quite intriguing that the Hon’ble Judge has used creative way to emphasize the importance of problem-solving, specifically in the context of framing legal issues and allocating the burden of proof in cheque bounce cases involving Sections 138 and 139 of the Negotiable Instruments Act, 1881.

He explained,-

 “Drawing from Einstein’s quote, if the issue had been properly framed after careful thought and application of judicial mind, and the onus correctly fixed, perhaps, the outcome at trial would have been very different and this litigation might not have travelled all the way up to this Court.”

 The following paragraphs saw the application of the Einstein’s theory while being critical of the impugned High Court judgment.  

Initial framing of the question is critical

In legal cases, the initial framing of the legal question is critical. If the legal issue is not carefully defined, it can lead to erroneous judgments. This is analogous to the importance of understanding the problem before seeking a solution.

It is quoted as “When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right.”

Incorrect fixation of onus on the complainant and improper understanding of Section 139

It is asserted that there was a fundamental error in the approach of the High Court when it placed the onus on the complainant instead of fixing it on the accused. The High Court failed to understand the nature of presumption in Section 139 when it emphasized that there is want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque. High Court seems to have lost sight of the legal principle that once the presumption under Section 139 was activated it has the effect of shifting the evidential burden on the accused. This error led to a flawed judgment.

As an outcome, the impugned High Court judgment was set aside and the complaint under Section 138 of the Negotiable Instruments Act, 1881 preferred by the complainant was allowed. The respondent accused was convicted and fined twice the amount of the bounced cheque.

To summarise, the use of Einstein’s quote served as a powerful metaphor for highlighting the importance of properly defining the legal issue and application of judicial mind in a legal case. It underscores that a well-defined legal issue often contains its own solution within it, and errors in this process can lead to erroneous judicial outcomes.

Restore Back Reading

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

Even during the time of Charles Dickens who said “let us kill all lawyers”, legal profession was looked upon as learned and honorable. Lawyers in England started addressing their fellow lawyers as learned friends and Judges their compeers as learned brothers. This, is inherited in India.

The dictionary meaning of the word ‘learned’ is having knowledge, erudite. Some dictionaries also record it as deeply read. Knowledge is acquired only by reading. Reading therefore is an inevitable part of the life of a worthy lawyer.

During the freedom movement, we had very prominent lawyers who were not only knowledgeable in law but proficient in literature, history, philosophy etc. Mahatma Gandhi wrote in inimitable style and Impressive English. So did Jawaharlal Nehru. Shri Rajgopalachari had written wonderful books about our epics in racy and refulgent language. He rightly said that English is a gift of Goddess Sarswathi to us. Shri K.M. Munshi, a top lawyer and the founder of Bharatiya Vidya Bhavan was also the Editor of Bhavans’ journal which he enriched with his scintillating articles. Dr.Katju a prominent lawyer of Allahabad and a former Chief Minister and Defence Minister was a prolific writer.
Sir Ashutosh Mukherjee, the famous lawyer from Calcutta High Court was appointed Vice Chancellor of a prestigious University in recognition of his profound learning. The flowery judgments rendered by the great Krishna Iyer are still green in the memory of lawyers.
Late Shri Justice Mathew was a voracious reader and it is not for nothing that he journeyed from a tiny Kottayam Court to the top court of the country earning the accolade as an eminent jurist.

Knowledge and reading are therefore an inseparable part of the life of a lawyer. There is nothing under the sun that a lawyer shall not know. Necessarily therefore, he has to acquire command of the language used in court which still is English. Impeccable English should be one of the proud possession of any lawyer worth the name.

Unfortunately, these days the practice of learning, reading and acquiring knowledge have all vanished. Law reports remain unwrapped in many legal offices. The younger generation is now attracted to google, internet etc., which while no doubt is welcome, is a distraction from the requisite reading habit for any lawyer. A young entrant in the bar should inculcate the use of legal language through judgments from eminent Judges and pleadings drawn by efficient lawyers commanding good word power. These practices are slowly vanishing from the legal profession. Expressions like ‘recordical evidence’ and ‘thefted property’ have started regularly appearing in judgments of Magistrates. The merciless and murderous assault on the language of the court has become daily event. Even reported judgements contain expressions like “not entitled to be disqualified”. Sooner or later one need not be surprised if typically, colloquial expressions like ‘head going affair’ and ‘elephant matter’ also start appearing in judgments. This is indeed a sorry state of affairs.

Language and good command over it are intrinsically part of a lawyer’s job. He is not expected to use incorrect language as long as the language thrust upon us by Macauley remains the language of the court. Though literary flavour like in the past cannot be expected, at least the use of correct and appropriate language without grammatical errors is a must in the life of a lawyer.

This can be achieved only by the regular reading of law journals, legal literature and books of eminent lawyers. The habit of reading is practically waning and even disappearing from the lives of lawyers. Not even the Criminal Manual or the Code of Civil Procedure are visibly present in our subordinate courts these days. 

We will have no right to call ourselves learned, noble etc., (about which the litigants are already skeptical), if we do not enrich our knowledge by reading and reading.

Seniors in the bar by quality should take a lead in shaping the reading habit of green horns and shall insist that a trainee under him reads all important judgements and inculcate the habit of writing good English.

The entry of bright and brilliant boys and girls from institutions like NUALS by choice and not chance had raised a ray of hope of rejuvenating the profession and refurbish its sagging and sinking image. Alas, most of them after a short stint in the bar, unable to cope up with practices unimaginable to them, are opting for desk jobs being hooked by multi nationals, with attractive pay packets.

I am aware I will have no takers now. Still, an old timer’s habits die hard.

Justice M. Fathima Beevi:
A Trailblazer Jurist Beyond any Horizons

(By Ashly Harshad, Advocate, Supreme Court)

 “The Administration of Justice, is the highest service one can do for the Country.”
(Justice Fathima Beevi in her speech on her elevation to the High Court of Kerala)

In the tapestry of legal luminaries, Fathima Beevi stands as an indelible thread, weaving history’s fabric as the pioneer woman to grace the hallowed halls of the Supreme Court of India. At the age of 96, she may have embraced the quietude of rest, yet her odyssey through the echelons of Indian Judiciary echoes with the poetic resonance of unparalleled legal brilliance and an unwavering dedication to the administration of justice. Her legacy, an enduring melody, has not merely left an imprint on the sands of time but continues to serenade future generations of female legal minds, beckoning them to dance with destiny within the esteemed corridors of the judiciary.

Early Life of Justice M. Fathima Beevi:

Justice M. Fathima Beevi was born on April 30, 1927, in Pathanamthitta, Kerala, to Mr.Meera Sahib and Khadeeja Beevi. She was the eldest daughter among six sisters and two brothers. Raised in a family that valued education, her father’s determination led to the education of all eight children, defying societal norms. In 1943, she completed her schooling from Catholicate High School in Pathanamthitta. Despite initially being a science student with an interest in chemistry, her father insisted that she join law college, redirecting her path toward a legal career.

Fathima Beevi pursued her college education in Trivandrum from 1943 to 1949, during which she excelled in her studies. Motivated by the presence of trailblazers like Justice Anna Chandi, the first female Judge in India who was raised to the position of  Judge of High Court of Kerala, Fathima Beevi chose to embark on a legal journey. Her father’s commitment to the education of his daughters and the influence of pioneering women in the legal field played a significant role in shaping her early life. 

Following the culmination of her collegiate journey, Fathima Beevi embarked on a year-long apprenticeship under the guidance of a senior lawyer. Subsequently, she triumphed in the challenging Bar Council examination, earning not just a passing grade but a distinguished gold medal for her exceptional performance. In 1950, she enrolled as an advocate, marking the beginning of her illustrious legal career.

Legal Career of Justice M. Fathima Beevi as a lawyer and jurist:

Fathima Beevi’s legal career unfolded as follows:

 1950-1958: Early Legal Practice:After enrolling as an advocate, Fathima Beevi practiced law for nearly seven years in Kollam. During this period, she handled a variety of cases, including prominent ones such as the Chavara riot case and several murder cases.

 1958-1983: Judicial Officer: In the year of 1958, she boldly etched her name in history by achieving a milestone: the pioneering woman to be chosen through a Public Service Commission examination for the esteemed role of Munsiff in the Kerala Subordinate Judicial Services. Over the years, she climbed the judicial hierarchy, being promoted to Subordinate Judge in 1968 and later to the position of District and Sessions Judge in 1974. In 1980 she added another feather to her name when she graced the position as the first lady Member of the Income Tax Tribunal.

1983-1989: High Court Judge: Fathima Beevi’s career reached new heights when she was elevated to the position of a Judge in the Kerala High Court on August 4, 1983. She became a permanent Judge on March 14, 1984, and served with distinction. In her elevation speech she vowed, “It shall be my endeavour, my honest and earnest effort to work conscientiously to uphold the tradition, the honour and the dignity of our judiciary. I pledge to work conscientiously in fear of God without fear of men, in the true spirit of the oath which I have now taken before you with the firm conviction that we are all working under the stern supervision of the Great task-master to whom we are accountable for our action. May God bless me”1

The eloquence of Chief Justice V.S.Malimath (as he was then) at the time of her farewell from Kerala High Court vividly captures Justice Fathima Beevi’s impact during her tenure as a High Court Judge. “A Judge who always bears in mind that administration of Justice is the highest service that one can do for the country and that service should be rendered without fear of men but only with fear of God is bound to prove a worthy Judge. That you have strived to live up to that pledge should indeed be a matter of personal satisfaction for you. Though tax law is one branch of your specialisation, you have done work in all the branches of law with equal ease. The large number of reported judgments of yours bear testimony to your calibre and competence as a Judge. You have always evinced great concern for the weak and downtrodden and tried your best to alleviate their suffering.”2

Though her legal acumen is visible in all her judgments, the one that touched upon gender justice in a matrimonial case filed for divorce on the ground of cruelty is still relevant in which Justice Fathima Beevi observed : “Judged by standards of modern civilization in the background of the cultural heritage and traditions of our society, a young educated woman is not expected to endure the harassment in domestic life whether mental or physical, intentional or unintentional. Her sentiments have to be respected, her ambitions and aspirations taken into account, in making adjustments and her basic needs provided, though grievances arising from temperamental disharmony is irrelevant. If she resents unfair on unreasonable demand for dowry and to keep away from the husband on account of the persistent and dubious approach to compel her parents to yield, the wife cannot be found fault with.”3

1989 - 1992: Supreme Court Appointment and her career as SC Judge:  October 6,
1989, witnessed a historic juncture as Justice M. Fathima Beevi carved her name in the annals of history, securing the distinction of being India’s inaugural woman appointed as a Supreme Court Judge. This watershed moment not only marked a ground-breaking achievement for Justice Fathima Beevi but also swung wide the doors of opportunity for women to ascend to elevated roles within the nation’s judicial echelons. In her own words it echoed “I have opened the doors.”4

Fathima Beevi’s tenure in the Supreme Court lasted until 1992, and she retired with a legacy of being a trailblazer for women in the legal profession. Her notable judgments touched upon legal arenas of taxation, family law, criminal law, contract, constitution and the like though an in-depth study of her judgments is still awaited. Fathima Beevi’s journey, from a determined student breaking gender barriers to the pinnacle of India’s judiciary, remains a source of inspiration for generations to come.

 Post retirement endeavours: Following her retirement from Supreme Court in 1992 Justice M.Fathima Beevi, who assumed the role of Tamil Nadu’s Governor from January 25,1997, to July 1, 2001, faced a tumultuous tenure. Notable events included her firm stance
on mercy petitions in Rajiv Gandhi Assassination Case by rejecting them and a controversial decision to appoint J.Jayalalitha as Chief Minister despite legal controversies surrounding her disqualification due to conviction in corruption cases. Fathima Beevi resigned amidst accusations of not fulfilling constitutional duties, leading to the appointment of Dr.C.Rangarajan as the acting Governor of Tamil Nadu. 

Justice M.Fathima Beevi staunchly defended her controversial decisions, particularly the appointment of J.Jayalalitha, asserting, “When Jayalalitha was appointed, she had no conviction, and I consulted Supreme Court Judges before making the decision—all of them agreed.” Emphasizing her careful consideration, she stated, “I had legal opinion for doing these things; I did not do anything spontaneously or randomly. I thought about it, worked on it, and then only took up the decisions. Views may differ.” Justice Beevi highlighted her commitment to judicial integrity, stating, “I didn’t want to continue there when some conflict arises and, therefore, resigned.” Importantly, she underscored the ethical stance Judges should take in post-retirement roles: “There is no harm in Judges taking up other posts after retirement, but they should act conscientiously and correctly. They should not go astray, identify themselves with any interest, but remain independent and impartial.”5

Beyond her responsibilities as Governor, Justice M.Fathima Beevi contributed to the national arena by serving as a member of the National Human Rights Commission in 1993 and later assuming the position of Chairman of the Kerala Commission for Backward Classes in the same year. Recognized for her outstanding contributions, she received honorary degrees, including an Honorary D.Litt., the Mahila Shiromani Award in 1990, and accolades such as the Bharat Jyoti Award and the US-India Business Council (USIBC) Lifetime Achievement Award.

Her life and career serve as a testament to the power of determination, competence, and a commitment to justice in overcoming societal barriers. Fathima Beevi’s legacy continues to resonate, reminding us of the importance of diversity and inclusivity in the highest echelons of the judiciary.

Foot Notes

1.  Source: 1983 KLT Journal page 82.

2.  Source: 1989 (1) KLT Journal Page 68.

3.  Rajani v. Subramonian (1989 (1) KLT 234).

4.  Source: https://www.youtube.com/watch?v=sPvztrIfL6E

5. Source: https://www.youtube.com/watch?v=sPvztrIfL6E)

Easement : Indian Law Allows‘Limited Interest’ in Servient Land

(Profit-a-Prendre) in Contrast to English Law

(By Saji Koduvath, Advocate, Kottayam)  

Introspection

Easement is a mere ‘Privilege’ according to English Law.

●    But, Indian Law on Easement confers “limited interest”also in the land of another.

●    It is clear from Explanation to Section 4 (Definition of Easement) of the Indian Easements Act, 1882.  The Explanation lays down that the expression “to do something” in the definition includes removal and appropriation of any part of the soil of the servient heritage, or anything growing or subsisting thereon
(Profit-a-Prendre).

●    They are made definite by the Illustrations to various Sections as shown under:

      *  Illustn.-(d) of Section 4.

                  ●  It speaks as to - Graze cattle,

                  ●   take water and fish out from the tank, 

●   take timber from wood,

                  ●   take fallen leaves for manuring.

      Illustn.- (b) of Section 22.

                  ` ●  It states about cutting  thatching - grass.

      Illustn.- (a) of Section 24.

                  ●  It refers to easement to lay pipes.

What is Easement?

Easement is a right possessed by the owner of a land (dominant land),

●    to use the land of another (servient land),

●    for the beneficial enjoyment of the dominant land.

Easement Does Not Confer Ownership or Possession

By virtue of easement -

●    No Ownership is bestowed in the (servient) land (AIR 2004 All.359; AIR 1925 Bom.335).

●    No Possession is obtained in the (servient) land (2011 (2) KLT 605).

●    No Substantive Interest is created in the (servient) land (2003 (1) KLT 320; AIR 1954 All.393).

Easement is Well Recognised and Circumscribed by Law

Easement is a limited right to ‘use’or ‘enjoy’ another’s land.

●    It is to do, or to prevent to do, some specific thing.

●    It is to be exercised in a way least onerous to the ‘another’s land’.

●    It is not a right to build and enjoy.

●    The right gained cannot be enlarged.

●    Servient owner can use his land in any manner (without disturbing enjoyment of the easement).

According to ‘Katiyar on Easements’:                                                                   

Easement is not a right to land or exclude owner.

●    It is not a right to permanent occupation.

●    It does not confer exclusive right of user/enjoyment.

●    And, it is not a corporeal interest in land.

Easement – Definition under the Indian Easements Act

SECTION 4 of the Indian Easements Act, 1882 defines Easements as under:

●    “An easement is a right

●    which the owner or occupier of certain land possesses,

         as such,

●    for the beneficial enjoyment of that land 

●    to do and continue to do something, or to prevent and continue to prevent something being done,

●    in or upon, or in respect of, certain other land not his own.”

Salient Limitations of Easement under the Indian Easements Act

●    The owner of a land only ‘uses’or ‘enjoys’land of another: (Section 31).

●    It is only ‘enjoyment’ of soil or things ‘subsisting’ (Explanation in: Section 4).

●    It allows limited enjoyment of land and advantages arise from its situation: (Section 7).

●    Right is to be exercised in a way least onerous to ‘another’s land’:(Section 22).

●    Servient owner can secure full enjoyment;but, he should cause as little inconvenience: (Section 24). 

It is Not a right to-

●    tend to total destruction of servient tenement: Section 17 (2003 (1) KLT 320).

●    make additional burden: (Section 23).

●    make constructions in, or cultivate upon: (2003 (1) KLT 320).

●    prevent servient owner to use: Section 27 : (2003 (1) KLT 320).

●    enlarge purpose of, or accustomed, user: (Section 28).

●    substantially increase an easement: (Section 29).

●    prevent servient owner from obstructing excessive ‘user’ of servient land – as ‘enjoyment of easement’: (Section 31).

●    increase burden by making permanent change in do. tent: (Section 43).

●    capable of forming grant – No easement, if not capable of forming grant (without document or registration): (1987 (2) KLT 1037).

No easement if -

●    right claimed is incidents of ownership.

●    servient property belongs to him. Easement is a right with conscious knowledge that the servient property does not belong to him. AIR 1966 Raj. 265. It must also be with proper animus as to easement: (AIR 1973 Mad.173).

“Which the owner or occupier of certain land possesses”

Section 12 states that an easement is acquired by the owner of an immovable property. Sec. 21 lays down that an easement must not be used for any purpose not connected with enjoyment of the dominant heritage. It cannot be severed from dominant heritage.

‘Enjoyment’ of ‘Land’

Easements are limited to ‘enjoyment of’ Servient ‘land’ (and things ‘subsisting’, for land includes things permanently attached to earth).

“As Such”

‘As such’ is used for emphasis to convey that easement is essentially connected to the dominant land, and it is inherently for the beneficial enjoyment of annexed/appertained (dominant) land; and not a right ‘in gross’(for the benefit of individuals).

“For the Beneficial Enjoyment of that Land.”

Easements are primarily for the beneficial enjoyment of dominant heritage. Easement stands as part and parcel of dominant land. The definition says that an easement is a ‘right which the owner or occupier of certain land possesses, as such’. 

“To do and continue to do something, or to prevent and continue to prevent something being done”

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 – but, without conferring substantial interest in the servient land. ‘Profit a prendre’ is not appurtenant to any dominant land; and it is a right ‘in gross’ (for the benefit of individuals).

Easement is acquired; not arise out of ‘Express Permission’

Section 12, Easements Act states that an easement is acquired  (under grant, partition or prescription) by the owner of an immovable property. Section 12, Indian Easements Act, 1882 reads as under:

●    “12. Who may acquire easements - An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.

●    One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.

●    No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.”

It is observed by the Apex Court in Bachhaj Nahar v. Nilima Mandal (2009 (1) KLT Suppl. 430 (SC),that the claimant of easement (prescription) should plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. 

Methods of Acquisition of Easements

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are pointed out (Ramkanya Bai v. Jagdish (2011 (4) KLT Suppl.83 (SC) to be the following:

1.   easements by grant: express 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: it is presumed that it is acquired by peaceable and open enjoyment, without interruption for twenty years and

4.   customary easements: it is inferred that it is acquired by virtue of a local custom.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

Basis of Every Right of Easement Is Theoretically a Grant

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user. It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma (2010 (1) KLT Suppl.71 (SC)), as under:

●    “Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant

circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

Extent of Easement – If used for several purposes, inferred for all purposes

Under the provisions of the Easements Act, the dominant owner cannot –

●    enlarge purpose of, or accustomed, user (Section 28) and

●    substantially increase an easement (Section 29).

In Cowling v Higginson (1838) 4 M. & W. 245, it was held as under:

“     ● If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes.”

The courts in India took the stand that easement for one purpose can be changed to another, provided there is no additional burden (agricultural purposes might be used for the purpose of a factory provided no additional burden). See:

●    Jesang v. Whittle (1899) ILR 23 Bom.595))

●    Manchersha Sorabji v. Virjivallabhdas (1926) ILR 50 Bom.635,

●    Mahammad Beari v. Badava Beari (1931) 61 Mad LJ 58.

Profit-a-prendre – Indian Law Varies from English Law

Explanation to Section 4 of the Indian Easements Act, 1882 reads as under:

● “Explanation - In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth; the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.”

From the above Explanation it is clear that easement includes‘removal and appro-priation’ of the soil of the servient heritage, or anything growing or subsisting thereon; that is, ‘removal and appropriation’ of certain tangible material things or natural resources (Profit-a-Prendre). They are further made clear by the Illustrations to various sections. E.g.

 Illustration (d) of Section 4. It speaks as to Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.

   Illustration (b) of Section  22. It states aboutcutting  thatching-grass. 

   Illustration (a) of Section 24. It refers to easement to lay pipes.

Hence, it is clear: Easement is not a mere ‘Privilege’; but, it includes:

●    limited (legally-recognised) enjoyment/user/interest in serviant heritage, and a right for (expressly-recognised) profit.

Profit-A-Prendre is Included in the Definition of “Easement”

Though Profit-a-prendre is allowed by Indian law considering the peculiarities of Indian situations, it is not a corporeal right.  And, it does not allow maintaining a substantial interest over the servient land.  No profit-a-prendre in gross also, i.e., for the benefit of individuals. On a close look, it can be seen that it is substantially related to ‘user’ of servient land.

In State of Bihar v. Subodh Gopal Bose (AIR 1968 SC 281), our Apex Court held as under:

“By the Explanation to Section 4 the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.
A profit-a- prendre is therefore included in the definition of “easement” in Section 4 of the Indian Easements Act. But an easement being a right which is super-added to the ordinary common law incidents of the ownership of a dominant tenement, and which connotes a corresponding burden on a servient tenement, can only be created by grant, or by statute.”

“In or upon, or in respect of, certain other land not his own”

Easement is a right to do something in or upon land of another. Even if the easement involves ‘construction’, it should be of another; because, Section 4: Explanation reads: “land” includes also things permanently attached to earth.

If the subsisting-construction is made by, or it belongs to, dominant owner, no doubt, there will be no easement [1987 (2) KLT 1037 (Bund); AIR 1915 PC 131 (Jetty); AIR1971 SC 1878].

Easement Not Allows to ‘Enjoy’ After Making a Construction or Cultivation

Easement is a Right for ‘enjoyment’ of things ‘subsisting’.  It is a Right for limited enjoyment, and advantages arising from its situation; and it does not allow to build-and-enjoy. It is clear from Section 7 which indicates that easement is only a right for limited enjoyment of (a) land and (b) advantages arising from its situation. It is also clear from the Scheme of the Act as shown under:

●    Section 4: An easement is a ‘right which the owner or occupier of certain land possesses’ “as such”

●    Section 4: Illustn. (d):  Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.

●    Section 7: Only a right for limited enjoyment of (a) land & (b) advantages arising from its situation. (It is stated:  Easements are restrictions of (a) Exclusive right (of owner) to enjoy immovable property, (b) Rights to advantages arising from its situation).

●    Section 12:  An easement is acquired by owner an immovable property.

●    Section 17: Not a right – to tend to total destruction of the servient tenement. (2003 (1) KLT 320).

●    Section 21: An easement must not be used for any purpose not connected with enjoyment of the dominant heritage.

●    Section 22: Exercise easement – least onerous to servient tenement (Illustn.- b: can cut thatching- grass, not to destroy plants)

●    Section 23: Not to make additional burden (Illus.- b: not to advance eaves; Illus.- d:not another pollution)

●    Section 24: Secure full enjoyment, but cause as little inconvenience. Illus.(a) easement to lay pipes

●    Section 27: Servient owner is entitled to use – consistent with  easement.

●    Section 28: Easements of  necessity, Right of way, Other prescriptive rights not to enlarge purpose, accustomed user etc.

●    Section 29: Dominant owner cannot substantially increase an easement.

●    Section 31: If excessive user – servient owner may obstruct the user.

●    Section 43: Permanent change in the dominant heritage and the burden
increased – easement is extinguished.

It’s my life

“It’s my life

It’s now or never

But I ain’t gonna live forever

I just want to live while I’m alive”

 “It’s My Life” by Bon Jovi released in the beginning of the millennium is an anthemic rock song that encourages personal empowerment and living life to the fullest. Interestingly the phrase finds mention and reference in the recent ruling authored by Justice Sanjay Kishan Kaul, one of the Five Judges of Supreme Court who dealt with the issue of legal recognition of same sex marriage. Though his judgment was in minority alongside the judgment of C.J.I., Dr.D.Y.Chandrachud the reference added a cultural and emotional dimension to the legal perspective. Check his quote from the judgment Supriyo v. Union of India,-

“Legal recognition of non-heterosexual unions represents a step forward towards marriage equality. At the same time, marriage is not an end in itself. Our Constitution contemplates a holistic understanding of equality, which applies to all spheres of life. The practice of equality necessitates acceptance and protection of individual choices. The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy, so long as it does not infringe on the rights of others. After all, “it’s my life.”

 The four lines of the song quoted as an end footnote convey a sense of personal empowerment and a desire to live life on one’s own terms, which resonates with the idea of personal autonomy and freedom emphasized in the judgment. Justice Kaul underscores the importance of recognizing individual choices and personal freedom in matters of love and relationships suggesting that individuals should have the right to make decisions about their lives and relationships without facing discrimination or restrictions based on their sexual orientation. The phrase “It’s My Life” serves to humanize and personalize the message, making it more relatable to a broader audience and highlights the emotional and human aspects of the legal issue at hand. It adds a layer of cultural relevance and underscores the universal desire for personal happiness and freedom in one’s life choices.

                                                                                          Short Edits by Ashly Harshad

                                                                                          Advocate, Supreme Court