Transfer of Property Act (TPA)
Transfer of an Easement Apart from the Dominant Heritage: Section 6(c) of the Transfer of Property Act
An easement is a right one piece of land enjoys over another. It has no life of its own: it exists because a particular plot needs it, and it is measured by what that plot needs. Section 6(c) draws the only conclusion that follows. The right cannot be sold away from the land it serves, because a right of way that serves nobody's land is not an easement at all. What the clause does not do is make easements unmarketable: sell the land and the easement goes with it, as an incident of the property, without a word being said in the deed.
Figure 1: The dominant heritage, the servient heritage, and what happens when the owner tries to sell one without the other
1. The Clause
Section 6(c), TPA 'An easement cannot be transferred apart from the dominant heritage.' And the definition the clause assumes, from section 4 of the Indian Easements Act, 1882: 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. |
The words 'as such' carry the whole of section 6(c). The right belongs to the owner in his character as owner of the dominant land, not to him personally. Strip away the land and the character disappears with it.
2. The Vocabulary
Term | Meaning |
|---|---|
Dominant heritage | The land for the beneficial enjoyment of which the right exists |
Dominant owner | The owner or occupier of that land, who enjoys the easement |
Servient heritage | The land on which the liability is imposed |
Servient owner | The owner or occupier of that land, who bears the burden |
Easement appurtenant | An easement attached to a dominant heritage — the only form Indian law recognises |
Easement in gross | A right existing independently of any dominant land — not recognised as an easement in India |
3. The Essentials of an Easement
- Two heritages. There must be a dominant and a servient tenement. A right over one's own land is not an easement but an ordinary incident of ownership — at most a quasi-easement, which becomes an easement when the plots are severed.
- Separate owners. The two tenements must belong to different persons; if they come into the same hands the easement is extinguished by unity of ownership.
- Beneficial enjoyment of the dominant heritage. The right must serve the land, not merely gratify its owner. A right to a personal convenience unconnected with the enjoyment of the land is not an easement.
- A right in alieno solo. The right is exercised in or upon the land of another — a way, a watercourse, light and air, support, or a right to prevent something being done.
4. What the Clause Forbids, and What It Leaves Untouched
The transaction | Effect |
|---|---|
A, owner of the dominant plot, sells the right of way to C, a stranger, keeping his own land | Void under section 6(c). C has no land for the way to serve; there is nothing to which the easement could attach |
A sells the dominant plot to C | Perfectly good. The easement passes to C as a legal incident of the land under section 8, whether or not the deed mentions it |
A leases the dominant plot to C | The lessee, as occupier, enjoys the easement during the term — section 4 speaks of the owner or occupier |
A mortgages the dominant plot | The easement goes with the security, as an incident of the property |
A releases the easement to B, the servient owner | Not a transfer of the easement apart from the dominant heritage, but an extinguishment of it — permissible |
A partitions the dominant plot between himself and his brother | The easement continues for the benefit of each divided share so far as it is capable of enjoyment, subject to the Easements Act |
5. Why an Easement in Gross Fails
English law recognises certain rights in gross; Indian law, through section 4 of the Easements Act, does not admit an easement without a dominant heritage. The reasoning is structural rather than technical.
- There is no measure of the right. The extent of an easement is fixed by the needs of the dominant land. Without that land, nothing determines how much use the right permits.
- There is no one to enforce it as owner. The right is enjoyed by whoever owns the dominant heritage for the time being; a purchaser of the bare right would hold it in no recognised character.
- The burden would become indefinite. A servient owner accepts a burden for the benefit of a neighbouring plot. If the right could be sold to anyone, the burden could be enlarged by the accident of who bought it.
6. Rights That Look Like Easements but Are Not
Right | Its true character |
|---|---|
A licence — permission to do something on another's land | Creates no interest in property; generally not transferable, under section 56 of the Easements Act, unless a different intention appears. It is revocable, and it dies with the licensee |
A profit à prendre — a right to take something from another's land | Treated as an easement under the Indian Easements Act, and, where it exists in gross, as a benefit arising out of land — immoveable property |
A right to catch and carry away fish from a lake | A benefit arising out of land, and therefore immoveable property — Ananda Behera v. State of Orissa, AIR 1956 SC 17 |
A right of way granted by contract to a person, unconnected with any land of his | Not an easement; a contractual right, and its transferability depends on the contract and on the general law |
A customary right enjoyed by the inhabitants of a village | A customary right, not an easement; it belongs to a fluctuating body and has no dominant heritage |
7. How an Easement Comes to an End
Since the clause turns on the link between right and land, it is worth noting the principal ways the link is broken under the Easements Act: release by the dominant owner; unity of ownership, where both tenements vest in the same person; extinction of the dominant or servient heritage; permanent alteration of the dominant heritage making enjoyment impossible; and non-enjoyment for the statutory period. In every case the easement dies with the relationship that supported it.
Retention aid The easement is a passenger, never a driver. It travels wherever the dominant heritage goes and cannot be put down anywhere else. Sell the field and the way goes with it; sell the way and you have sold nothing. |
8. Landmark Cases
📖 Ananda Behera v. State of Orissa, AIR 1956 SC 17 Held: A right to enter another's land and take fish is a licence coupled with a profit a prendre, a benefit arising out of land, and therefore immoveable property. It exists for the beneficial enjoyment of the grantee and must be created in the manner the law requires for immoveable property. Ratio: A profit a prendre is treated as an interest in immoveable property in India. |
9. Related Topics and Provisions
- What May Be Transferred, Section 6 — the general rule and the other exceptions
- Section 8, TPA — the legal incidents that pass with a transfer, including easements annexed to the land
- Section 4, Indian Easements Act, 1882 — the definition on which the clause rests
- Sections 52 and 56, Indian Easements Act, 1882 — licences, and why they are not transferable
- Meaning of Immovable Property and 'Attached to the Earth' — benefits arising out of land
- Ananda Behera v. State of Orissa, AIR 1956 SC 17 — a right to take fish as a benefit arising out of land