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Thread: Transfer of dominant heritage passes easement

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    Word Icon 35px Jpg.ashx Transfer of dominant heritage passes easement

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    Transfer of dominant heritage passes easement

    Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer of devolution takes place.
    Illustration
    A had certain to which a right-of-way is annexed. A lets the land to B for twenty years. The right-of-way vests in B and his legal representatives so long as the lease continues.
    Comments
    Scope: The section applies when the dominant heritage is transferred by sale gift, lease, mortgage or bequest or by inheritance. In the case of Valia v. Easwaran, AIR 1959 Ker. 408, it was held that section 8 of the transfer of property act, 1882, which is similar to section 19 of the easements act applies to mortgages. Easement existing at the date of the transfer passes with the dominant heritage to the transferee. (1972) 1 Cut WR 350. It was said in the case of Rajpur Colliery Co v. Pursottam, AIR 1959 Pat. 463, that it is settled law that once an easement has become legally appurtenant to a dominant tenement, it will ipso facto pass on a conveyance being necessary. Since an easement is attached to the dominant heritage. It remains so attached even after the transfer of the dominant heritage. This section 19 renders it unnecessary. Easements pass with the dominant heritage also by virtue of section 8 of the transfer of property act, it is open to the transferor to provide in the conveyance that an easement attached to the property conveyed shall not pass. Though there is no reciprocal provision that the burden of an easement passes with the transfer of the servient heritage, it is the general rule of law that nobody can convey a better title than he has got, so that, even in the absence of specific mention in the conveyance, the tenement transferred remains burdened with the easement.
    Easements arising as a consequence of transfer: Section 19 is not concerned with easements which arise on severance under Sec. 13, but only with easement which exits on and before the date of the transfer. It was pointed out in the case of Ganga Ram v. Sita Ram, AIR 1924 Lah. 488, the section 19 lays down only that when the dominant heritage is transferred the easement passer to the transferee, but where not easement at all existed while the two tenements belonging to the same person. Section 19 does not apply Ahmad Ali v. Dhondba Dasrath, AIR 1937 Nag, was case under the similar provision of section 8 of the transfer of property act. It was said in this case that the phrase ‘easements annexed thereto’ in section 8 of the transfer of property act refers to those easements which at or prior to the transfer were existing easements and that it did not refer to an easement which came into existence as a consequence of the transfer. The same view was taken in the case of Hamida Khatoon v. Baryapore Panchaya, AIR 1947 Pat. 122, where it was observed:

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