Adv. Saji Koduvath.

Definition of Custom

Halsbury’s Laws of England defines custom as under:

• “A custom is a particular rule which exists either actually or presumptively from time immemorial and has obtained the force of law in a particular locality.” [Quoted in Manikrao v.  Maheshkumar, 2011-5 MhLJ 345.]

Ingredients of Custom

The essentials of a valid custom (SK Wodeyar v. Ganapati Madhuling Dixit, AIR 1935 Bom 371) are:

• it must be definite,
• ancient,
• uniform and
• not illegal in itself or unreasonable.

Our Apex Court observed in Ramkanya Bai v. Jagdish, AIR 2011 SC 3258, that to establish a custom, the following matters are to be proved:

• (a) the usage is ancient or from time immemorial;
• (b) the usage is regular and continuous;
• (c) the usage is certain and not varied; and
• (d) the usage is reasonable.

Custom must be construed strictly.

A custom that exist in a particular family or in a particular district, by its long usage will obtain the force of law. Besides it must be ancient, it must also be certain, reasonable and being in derogation of the general rules of law. It is further essential that it should be established to be so by clear and unambiguous evidence for it is only by means of such evidence that the courts can be assured of its existence and of the fact that it possesses the conditions of antiquity and certainty on which alone its legal title to recognition depends. It must be not be opposed to morality or public policy and must not be expressly forbidden by the legislature. [Subramanian Chettiar v. Kumarappa Chettiar, AIR 1955 Mad 155.]

Customary Right

In Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56, the Privy Council saw ‘customary right’ and ‘custom’ thus:

• “A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large [Fitch v. Rawling (1795) 2 H BI 393 = 3 RR 425]. The custom, if established makes the local law of the district and it creates a right in each of the inhabitants irrespective of his estate or interest in any particular property.”

The right to bury dead body of a particular community in a particular locality or in the property of a particular person is a customary right; and to claim that right, it must be proved that such property has been used by custom from time immemorial.

Such a custom from long usage should have obtained the force of law. It must be

• certain,
• peaceable,
• reasonable,
• ancient and
• not opposed to morality or public policy. [R. Venkateswara Raju v. State of AP, 2020 Supreme (AP) 206.]

It is held in Ganpatrao Madhorao Hatker v. Sheikh Badar Farid Musalman, AIR 1939 Nag 193, that a custom must be:

• reasonable and certain; and
• it must be proved that the user was not permissive,
• the user was not exercised by stealth,
• the user was not exercised by force, and
• that the right had been enjoyed for such a length of time as to suggest that by agreement or otherwise the user has become the customary law of the locality.

Antiquity, an Element for Custom

The custom must have been originated in remote antiquity. It was found in Abid All Khan v. Secretary of State, AIR 1951 Nag 327, as under:

“63. A custom, in order that it may supersede the ordinary law, must, besides being reasonable, be ancient as well as certain. On the question whether a custom should also be immemorial, there appears to be a difference of opinion. In Kuar Sen v. Mamman, 17 All 87: (1995 AWN 10) and Mohidin v. Shivlingappa, 23 Bom 666: (1 Bom LR 170) the view taken is that the common law rule that the custom must have originated in remote antiquity does not apply to India. In Mahamaya Debi v. Haridas, 42 Cal 455: (AIR 1915 Cal 161), it was held, following Mayor of London v. Cox, (1867) 2 H L 239, that a custom originating within time of memory, even though existing in fact, is void at law and that for a custom to be valid it must be immemorial in addition to being reasonable and certain.” [Quoted in: Ilam Chand Vs Janeshwar Das, 2006-1 ADJ 266.]

Customary Easements – Both custom and easement are involved

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are, as pointed out in Ramkanya Bai v. Jagdish, AIR 2011 SC 3258, the following:

1. easements by grant: a 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: acquired by peaceable and open enjoyment, without interruption for twenty years and
4. customary easements: acquired by virtue of a local custom.

The Apex Court pointed out in this decision that customary easements are the most difficult to prove among easements.

Section 18 of the Easement Act reads as under:

• “18. Customary easements. An easement may be acquired in virtue of a local custom. Such easements are called customary easements.”

Both custom and easement are involved in customary easement. In other words, when customary easement is claimed, elements of both custom and prescriptive easement are to be proved. [Lachhi v. Ghansara Singh, AIR 1972 HP 89.]

Customary easement includes the right to take water and earth from a tank, use water for cattle from a tank,  graze cattle [Illustration (a) to sec. 18], to take earth for building and repairing their houses etc.[Jugal Kishore v. Umrao Singh, AIR 1949 All 272. ] These are rights of people of a locality; and not a public right.

Customary Right is independent of any Dominant Heritage

It is observed in Parbhawati Devi v. Mahendra Narain Singh (AIR 1981 Pat 133) that a customary right is not an easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to a particular person while customary rights are public rights annexed to the place in general. Customary right is also different from customary easement and Easements Act does not at all deal with it. It expressly excludes it from its scope and purview.

In Amar Singh v. Kehar Singh (AIR 1995 HP  82) also it is held that a customary right is not easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body of persons like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general.

A customary right by its very definition cannot be created under a written instrument. There cannot be a customary easement in favour of an individual. Customary easement acquired by local custom can only be in favour of a defined class of people or community of a particular locality.

A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large. [Fitch v. Rawling, (1795) 2 HB. 393: (3 R.R. 425); Laxshmidhar Misra v. Rangalal, AIR1950 PC 56. Raj Nandan Singh v. Ram Kishun Lohar (AIR 1958 Pat 571). ] Therefore, a customary right is independent of any dominant heritage. [Jugal Kishore v. Umrao Singh, AIR 1949 All 272; Raj Nandan Singh v. Ram Kishun Lohar, AIR 1958 Pat 571.]

Easement -Indian law differs from English Law.

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

No profit-a-prendre in gross

Explanation in Sec. 4 reads:

• “…’to do something’ includes removal and appropriation .. of any part of the soil .. or anything growing or subsisting thereon ..”

From Explanation in Sec. 4 it is clear that easement included appropriation of certain tangible material things. They are made clear by the Illustrations to various sections. Eg.

• Illustn.-(d) of S.4 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 S. 22 states cutting  thatching- grass. 
• Illustn.- (a) of S. 24 refers to easement to lay pipes.

Hence, it is clear: Easement is not a mere ‘Privilege’ (as in English Law); but, it includes:

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

Though Profit-a-prendre is allowed by Indian law considering the peculiarities of Indian situations, it is not a corporeal right on land.  And it does not allow maintaining a substantial interest over the servient land.  No profit-a-prendre in gross, ie. for the benefit of individuals (primarily because, it comes out from the ‘Explanation’ of the Definition of Easement). On a close look, it can be seen that it is definitely related to ‘user’ of land, at least, in a ‘definite’ locality.

Customary Easement is not an Easement in its True Sense

In Yohannan Vs. Mathai, 1991-1 Ker LJ 605, 1991 KHC 571 it is held that Customary right is not an easement. It is pointed out that an easement belongs to a determinate person or persons in respect of his or their land. It is an accommodation over the land of another restricting the user of the servient tenement to that extent without otherwise affecting the title or possession of the servient owner. A fluctuating body cannot claim an easement. It is observed further in this decision as under:

“Easements are private rights belonging to particular persons and is only an accommodation in the servient tenement for the convenient enjoyment of the dominant tenement. Customary rights are public rights annexed to the place in general. Customary right is also different from customary easement. An easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from it (Ram Chandra Sah v. Abdul Hannan and others, AIR 1984 Pat 313). Customary easement originates in a valid custom and vest in all owners of certain tenements within a particular locality, who form a class, for whose benefit the custom prevails. It can be claimed only as appurtenant to some dominant tenement and not independently as customary rights. village pathways based on customary rights vested in the people of the locality are not public highways (Narayani v. Govindan – 1968 Ker LT 626 ). Custom gives rise to customary easements. But there is a vital difference between the two. Easements Act deals with customary easements, but not customary rights. Customary rights are rights arising by custom, but not attached to a dominant tenement. But a customary easement can exist only for the beneficial enjoyment of other lands because it is merely appurtenant to a dominant heritage and cannot exist in gross (Ramachandra Singh v. Partapsingh and others, AIR 1965 Raj 217).”

It is also observed in Amar Singh v. Kehar Singh (AIR 1995 HP 82) that there is distinction between easement and customary easement and pointed out that an easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from it. There can be no easement without dominant tenement and a servient tenement. Rights which are by a community or class or persons by virtue of a customary right are not easement but are right in gross. An easement must always be appurtenant to a dominant tenement. Indeterminate and fluctuating body of persons such as the public or the community cannot have an easement.

Parbhawati Devi v. Mahendra Narain Singh, AIR 1981 Patna 133, it is held as follows:

• “A customary right is not easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general. Customary right is also different from customary easement and Easements Act does not at all deal with it. It expressly excludes it from its scope and purview. An easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be served from it. Where the fluctuating body of persons namely, the villagers and not a particular person claimed easement to get water from a reservoir but there was nothing laid in the plaint as to for which land dominant tenement, easement was claimed, no case of easement could be said to have been made out.”

Customary Easement – Not Necessarily be Annexed to Ownership of Land

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

• “By the Explanation to s. 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 S. 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. … ”
• “An apparent exception to this rule is a customary easement. But a customary easement is not an easement in the true sense of that expression. It is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement: it is recognised and enforced as a part of the common law of the locality where it obtains. A customary easement arises in favour of an indeterminate class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is enforceable as a right to do and continue to do something upon land or as a right to prevent and continue to prevent something being done upon land. Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy.
• A profit-a-prendre in gross – that is a right exercisable by an indeterminate body of persons to take something from the land of others, but not for the more beneficial enjoyment of a dominant tenement – is not an easement within the meaning of the Easements Act. To the claim of such a right, the Easements Act has no application. 
• Section 2 of the Easements Act expressly provides that nothing in the Act contained, shall be deemed to affect, inter alia, to derogate from any customary or other right (not being a license) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property. A claim in the nature of a profit-a-prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law, undoubtedly the custom prevails. But to be valid, a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. A right in the nature of a profit-a-prendre in the exercise of which the residents of locality are entitled to excavate stones for trade purposes would ex facie be unreasonable because the exercise of such a right ordinarily tends to the complete destruction of the subject-matter of the profit.”

It is observed in Gopalbhai Jikabhai Suvagiya VS Vinubhai Nathabhai Hirani, 2018  Supreme (Guj) 924, that a customary easement is not an easement in the true sense of that expression; it is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement; it is recognized and enforced as a part of the common law of the locality where it obtains. A customary easement arises in favour of an indeterminate class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is enforceable as a right to do and continue to do something upon land or as a right prevent and continue to prevent something done upon land. Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy.

Acquiring Customary Easement by One Person or even by a Fluctuating Body

Illustration (a) to sec. 18 runs as follows:

• “By the custom of a certain village every cultivator of village land is entitled, as such, to graze his cattle on the common pasture. A having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the customs.”

Quoting Illustration (a), it was held in Chandgi Ram v. Ram Lal, AIR 1963 Raj 161, that the customary easement of having access to a field would be available to tenants of land, if it was newly brought under cultivation, and the customary easement was so well known that the court could give effect to it – even if it was not pleaded in the plaint.

A customary easement can be claimed by a family or an individual, and such claim need not be by a large community alone. [R. Venkateswara Raju v. State of AP, 2020 Supreme (AP) 206.] When the plaintiff sues in his personal capacity with respect to a customary easement the suit is maintainable in spite of the non-compliance with the provisions of Order 1, Rule 8, Civil P.C. [Jugal Kishore v. Umrao Singh,  AIR 1949 All 272.] To constitute a customary easement the right claimed must be an easement and it must be in virtue of a local custom. A customary right of uninterrupted user is quite different from setting up a local custom.

It is also pointed out that different persons may have a right of pasture over a land, but the plaintiff can nonetheless claim a right independent of others, provided the necessary conditions are satisfied. A customary easement, as is obvious, embraces the needs of variable persons belonging to a class or locality, while a right by prescription is always personal. Therefore, customary easement is unappurtenant to any dominant tenement, or it has no relation to the beneficial enjoyment of a dominant tenement as required in easement. A fluctuating body like the inhabitants of the locality cannot claim an easement as can be done in customary easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general. [Brahma Nand VS Teju Ram, 2019-195 AIC 584.]

 It is observed in R. Venkateswara Raju v. State of AP, 2020 Supreme (AP) 206, that customary easement, as provided under Section 18 of the Easements Act, is an amenity to the land own and possessed by the farmers within the vicinity, since the same is being used as cart track and thrashing floor. In Lachhi v. Ghansara Singh, AIR 1972 HP 89 it is held as under:

“Different persons may have a right of pasture over a land, but the plaintiff can nonetheless claim a right independent of others, provided the necessary conditions are satisfied. A customary easement, as is obvious, embraces the needs of variable persons belonging to a class or locality, while a right by prescription is always personal. These observations I have made, so that the evidence is properly appreciated, while the case goes back to lower Courts.”

Right of Privacy

According to the illustration (b) of Section 18 right of privacy is a customary right and there is no such thing as a natural right of privacy recognised by law anywhere in India. It is only a customary easement arising by virtue of a local custom. [See: Laxmi Bai VS K. Komaraiah, 1998 2 ALD 23; 1998 2 ALT 229.]

A Village pathway is a good example of Customary easement

It is observed in Yohannan Vs. Mathai, 1991-1 Ker LJ 605, 1991 KHC 571 that customary easement originates in a valid custom and vest in all owners of certain tenements within a particular locality, who form a class, for whose benefit the custom prevails. It can be claimed only as appurtenant to some dominant tenement and not independently as customary rights. village pathways based on customary rights vested in the people of the locality are not public highways (Narayani v. Govindan – 1968 Ker LT 626).

Village Pathways – Intermediate between the Public and Private Roads

In Harendra Nath Chakraborti v. Asim Sindhu Chakraborty, AIR 1981 Cal 325, it is observed as under:

“In the Full Bench case of Chunilal in (1888) ILR 15 Cal 460, it has been stated that a village pathway comes under the description of the second class of rights intermediate between the public and private roads. This decision was followed by Mukherjee, J. , in the case of Jatindra v. Satya in (1938) 42 Cal WN 445 : (AIR 1938 Cal 366 ). It has been stated that a village pathway is not a public highway and so interference with the user of the same docs not involve any invasion of public rights, vide the page 448 (of Cal WN) : (at p. 368 of AIR ). It however appears from these cases that a village pathway, which comes under the description of the second class of rights intermediate between the public and private way, has its origin in custom, but a public highway exists for all the citizens and has its origin in dedication The case of Harish Chandra v. Prannath (AIR 1921 Cal 405) (supra) is in the plaintiffs’ favour. The decision of the Madras High Court in the case of Subbamma v. Narain Murthi (AIR 1949 Mad 634) (supra) cannot be followed because the learned single Judge of the Madras High Court dissented from the decisions of this Court in the cases of M. Devi v. Basanta, ILR 60 Cal 1003 : (AIR 1933 Cal 884) and of Surendra v. District Board of Nadia (AIR 1942 Cal 360 ). A village pathway is not a public highway. So in the case of obstruction of a village pathway or road, no proof of special damage arises. Such question is relevant only in the case of a public highway, where there is allegation of public nuisance. This principle has been enunciated by the Court in the cases of (1924) 39 Cal LJ 347 at p. 352 : (AIR 1923 Cal 622 at p. 624); ILR (1946) 1 Cal 522 : (AIR 1949 Cal 209) (Hangsa Kalita v. Pradip Rai Deka ).”

Bury the dead in the land of another – only a Customary Right; and not Customary Easement

There is difference of opinion on this matter. It appears that the correct position is that it is not a customary easement; because the the right claimed cannot be related to user of land. In case of other rights claimed as customary easements, they can be related to user of land, in one way or other. As shown earlier, though Profit-a-prendre is allowed in Indian Law, it is not a corporeal right on land; and it does not allow maintaining a substantial interest over the servient land and there is no profit-a-prendre ‘in gross’. [See: Ramzan Momin  v. Dasrath Raut, AIR 1953 Patna 138. Mathura Prasad v. Karim Baksh, 31 Ind Cas 805.]

It is pointed out in Satyabhamakutty Pisharassiar v. Chinnathan Master (1976 Ker LT 78) a right to bury the dead in the land of another claimed by a section of the inhabitants of a locality can only be a customary right; and not an easement, as there is no question of beneficial enjoyment of a dominant tenement. It is held in this decision as under:

• “A right to bury the dead in the land of another claimed by a section of the inhabitants of a locality can only be a customary right. It is a right claimed by a fluctuating body of persons. it is a right claimed in respect of a particular locality. It is a right which does not arise from a gram. It is not a claim by a defined person. It is not a claim that arises from the beneficial enjoyment of a dominant tenement. So the right claimed cannot be an easement. if such a right is to be upheld by courts it ‘should be immemorial in origin, certain and reasonable in nature and continuous in use’. In view of the peculiar nature of the right involved, a finding on the question of actual possession of the property cannot turn the tables against any party. Though the defendants claimed it as an easement, it is not really an easement.”

Customary Right Must Be Exercised in a Reasonable Manner

A customary right of the nature claimed by the plaintiffs must be exercised in a reasonable manner. [See: Jugal Kishore v. Umrao Singh,  AIR 1949 All 272; Ram Saran Singh v. Birju Singh 19 ALL. 172; Bhola Nath Nundi v. Midnapore Zemindari Co. 31 Cal. 503.]  The entire rights and limitations applicable in law to ‘Easements’ in general, under the scheme of the Easement Act, fully apply to customary easements also. Under Indian law a dominant owner ‘uses’ servient tenement and ‘enjoys the easement’. (See Sec. 31).

Easement is a right that allows:

• Only ‘enjoyment’ of soil or things ‘subsisting’ thereon (Explanation in Sec. 4).
• for limited enjoyment of (a) land & (b) advantages arising from its situation: S. 7
• exercise right, in a way least onerous: S. 22
• secure full enjoyment, but cause as little inconvenience: S. 24 2017(2) KLT 63

It is Not a right to:                                            

• tend to total destruction of ser. tenement: S. 17 (2003 (1) KLT320)
• make additional burden: S. 23
• make constructions in, or cultivate upon: (2003 (1) KLT 320).
• prevent servient owner to use: S. 27 : 2003 (1) KLT 320
• enlarge purpose of, or accustomed, user: S. 28
• substantially increase an easement: S. 29
• prevent servient owner from obstructing excessive  ‘user’ of servient land – as ‘enjoyment of easement’: S. 31
• increase burden by making permanent change in do. tent: S. 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.