View Full Version : What do you think about “Total destruction- clause (A)”

05-02-2012, 02:49 AM
What do you think about “Total destruction- clause (A)”

(1) Easements: Clause (a) of section 17 provides that no easement can be acquired by prescription if its effect is totally to destroy the servient tenement or render it useless for all practical purposes. In the case of Jamaitrai v. Goumal, AIR 1931 Sind 1, is a telling illustration of this principal. The plaintiff’s advanced as one alternative claim that they had a right by way of easement of using their neighbour’s roof terrace, as a courtyard for sleeping by night, for sitting by day and generally for family festivals. Their lordships held that user of this description would altogether exclude the owner of the servient tenement from enjoying his tenement, or that such an exclusion would follow as a physical necessity if such a user were granted as an easement. It was further held that the easement claimed of performing such acts of user on the servient tenement “would be obnoxious to the provisions of section 17 (a), as tending to the total destruction of the object on which the easement obligation would be imposed”. The plaintiffs were according non-suited.
(2) Riparian rights: However section 17 (a) cannot be invoked to prevent a riparian owner from using for ordinary purposes the water of the river to the full extent permitted by law, that it is to say, even to the extent of taking the whole of the water from the stream. This is clear on principal because for one reason section 17 has no application to natural rights, and for another the right to make such riparian ordinary use is always recognized in English law. But even if the riparian proprietor empties the river water in the exercise of an easement, it cannot be said that he infringes the principal of section 17 (a). The reason why section 17 (a) does not operate in such a case is that the servient tenement of a riparian easement is not the river but is the riparian property lower down. Therefore even taking all the water of a river does not fall within the scope of section 17 (a). through such wholesale appropriation may be objectionable according to the other circumstances and principal of riparian use. However, it is difficult to follow their lordships when, having taken up section 17 of the easements act for their general guidance through the act is not in force in Bihar, they say that “section 17 of the easements act is intended to apply not to such rights but to rights in the nature of profits-a-prendre which do not include a right to water”. It is true that principal of section 17 (a) often finds application in cases of profits-a-prendre but extends to easements property so called. In states where the act is in force, the position would be in nowise different because section17 (a) would apply to all easements within rhe meaning of section 4, that is to say both easements properly so called and profits-a-prendre. In the cases AIR 1931 Sind and AIR 1935 Rang 56, the rights to which the principal of section 17 (a) was applied were in the nature of easements proper and not profits-a-prendre. In a Bombay case 45 IC 448, a contention was raised and, in view of such a common agricultural custom, negatived, that the right which the plaintiffs claimed to let irrigation water flow at random over the servient tenements was destructive of the servient tenements within the meaning of sub-section (a) of section 17.
Right to bury or burn dead bodies: In the Allahabad case, AIR 1934 All 868, the question arose whether a right to bury dead bodies is an easement that can be prescribed for. Justice Mukerjee and Chief Justice Sulaiman differed on this question. Justice Mukerjee said that a right to bury is not a right of easement, and even if it were, it could not be prescribed for, because it would tend to the total destruction of the servient tenement within the meaning of section 17 (a). But Chief Justice Sulaiman thought that section 4 of the easements act is wide enough to cover a right to buy dead bodies in another man’s land and that though such a right is well recognized as a customary easement of section 18, there is nothing to prevent a right of burial from being in favour of a family or an individual. As regards the question of total destruction of the servient tenement, Chief Justice Sulaiman remarked that there would not be any destruction of the tenement, if the surface of the land were allowed to be used for purposes of cultivation. It seems that between the two conflicting opinions, the opinion of Chief Justice Sulaiman is correct. No right can be a customary easement of section 18, unless it satisfies the definition of an easement in section 4. As the right to bury dead is allowed as a customary easement, it must be taken to have satisfied the definition of an easement in section 4. And if the right to bury thus satisfied the definition of an easement in section 4, there is no reason why it could not take the form of a prescriptive easement in favour of determinate individuals. Whether section 17 (a) would operate as a bar to prescription would, it seems, depend to bury, if claimed as an easement, either prescriptive or customary must be appurtenant to some dominant. Perhaps the residence of the claimant could serve the purpose, for a prescriptive easement. Total destruction means that the property should not be identifiable and not that it should cease to exist. 1982 All WC 212.