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THE EXTINCTION, SUSPENSION AND REVIVAL OF EASEMENT
(Ss. 37 to 51)
QUESTION BANK
Q.1 Define easement. Discuss the law relating to extinction of easement?
Q.2 Define easement. Explain provisions as to the extinction, suspension and revival of the easement.
SYNOPSIS
The Extinction, Suspension, and Revival of Easements
I. Modes of Extinction of Easements (Sections 37 to 48)
1. Extinction by Dissolution of the Servient Owner's Right [Section 37]
2. Extinction by Release (Express or Implied) [Section 38]
3. Extinction by Revocation [Section 39]
4. Expiration of a Period or Conditional Fulfillments [Section 40]
5. Extinction on Termination of Absolute Necessity [Section 41]
6. Extinction of an Utterly Useless Easement [Section 42]
7. Permanent Alteration of the Dominant Heritage [Section 43]
8. Permanent Alteration of the Servient Heritage by Superior Force [Section 44]
9. Extinction by the Absolute Destruction of Either Heritage [Section 45]
10. Extinction by Unity of Absolute Ownership [Section 46]
11. Extinction by Continuous Non-Enjoyment [Section 47]
12. Extinction of Dependent Accessory Rights [Section 48]
II. Suspension of Easements (Section 49)
III. Revival of Easements (Section 51)
1. Revival of an Easement Extinguished by Physical Destruction [Section 51(1)]
a. By Natural Alluvion:
b. Reconstruction of the Servient Heritage:
c. Reconstruction of the Dominant Heritage:
2. Revival by Court Cancellation of Unity [Section 51(2)]
3. Revival by Resuming Continuous Use [Section 51(3)]
IV. Comparative Table-
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The Extinction, Suspension, and Revival of Easements
Easementary rights are fundamentally created based on absolute practical necessity or temporary spatial convenience. Consequently, upon the permanent fulfillment or termination of that necessity, the law dictates that the underlying easementary rights come to an end. However, depending on changing situational factors, these proprietary rights may be temporarily suspended or legally revived.
I. Modes of Extinction of Easements (Sections 37 to 48)
Under Chapter V of the Act, an easementary right is completely and permanently extinguished under exactly twelve statutory circumstances:
1. Extinction by Dissolution of the Servient Owner's Right [Section 37]
When an easement has been granted by a person possessing only a conditional, qualified, or limited interest in the servient heritage, the right is automatically extinguished the exact moment that limited interest ceases to exist.
Statutory Illustrations [Section 37]:
a. The Forfeiture Condition: A transfers the estate of Sultanpur to B on the strict condition subsequent that B does not marry C. B enters into possession and grants an easement over Sultanpur to a neighbor (X). Subsequently, B marries C. B’s underlying interest in the estate terminates immediately by operation of law, and along with it, the subordinate easement granted to X is completely extinguished.
b. The Term Lease Expiration: A, in the year 1960, leases land to B for a fixed term of 30 years. In 1961, the tenant B imposes an easementary right of way over that land in favor of C. C openly and peaceably enjoys the path without interruption for 29 years. Upon the expiration of B’s 30-year lease, B’s interest ends, and C’s prescriptive easement is instantly extinguished.
2. Extinction by Release (Express or Implied) [Section 38]
An easement is extinguished when the dominant owner explicitly or implicitly releases the right back to the servient owner.
The Co-owner Unity Rule: If there are multiple co-owners of a dominant heritage, a unilateral release executed by only one co-owner operates strictly against their individual interest and cannot bind or extinguish the rights of the remaining co-sharers.
Statutory Illustrations [Section 38]:
a.The Joint Owner Limitation: A, B, and C are joint co-owners of a commercial building to which an easementary right of way is annexed. A, without obtaining the consent of B and C, executes a deed releasing the easement to the neighbor. The release is legally effectual only against A and his direct legal representatives; the easement continues to subsist fully in favor of B and C.
b. The Defective Assignor Release: A grants B an easement over A’s land for the benefit of B’s house. B subsequently sells and assigns the house absolutely to C. B then attempts to execute a deed releasing the easement back to A. This release is completely ineffectual and a legal nullity, because B had already divested himself of the dominant heritage.
3. Extinction by Revocation [Section 39]
An easement is permanently extinguished when the servient owner, acting in accordance with an explicit power of revocation reserved to them in the original instrument of grant, lawfully revokes the right.
4. Expiration of a Period or Conditional Fulfillments [Section 40]
An easement created to endure only for a specified term of years, or executed subject to a condition subsequent, is extinguished the exact moment that temporal period lapses or the condition is fulfilled.
5. Extinction on Termination of Absolute Necessity [Section 41]
An easement of necessity is strictly dependent on the existence of a physical block. Therefore, the moment the necessity terminates, the right is extinguished.
Statutory Illustration [Section 41]:
A grants a field to B that is completely landlocked and inaccessible except by passing over A’s adjoining land. Afterwards, B purchases an independent strip of land from a stranger that connects his field directly to the public highway. The easementary right of way over A’s land is instantly extinguished, because the absolute necessity has ceased to exist.
6. Extinction of an Utterly Useless Easement [Section 42]
An easement is extinguished by operation of law when it becomes factually incapable of ever providing any form of physical benefit, material convenience, or aesthetic amenity to the dominant owner under any circumstances.
7. Permanent Alteration of the Dominant Heritage [Section 43]
While a dominant owner can alter the mode of enjoying their easement, they cannot increase the physical burden on the servient heritage. If a permanent change to the dominant property drastically increases the burden such that it cannot be reduced, the pre-existing easement is completely extinguished.
Landmark Precedent Test [Section 43]:
Sardar Saheb v. Rallaram AIR 1937 Lah 839
Facts: The plaintiff held an ancient prescriptive easement of light and through a specific window that was 4 feet long and 2 feet wide, situated at a height of 19 feet from the ground. The plaintiff demolished the structure and built a completely new building, placing a large window (45 feet long and 25 feet wide) at a height of 116 feet.
Held: The court held that the old easement was entirely extinguished. The structural change was so radical and permanent that the original light quadrant could no longer be utilized for the benefit of the new window without imposing a massive, unauthorized burden on the servient tenement.
8. Permanent Alteration of the Servient Heritage by Superior Force [Section 44]
An easement is extinguished when an irresistible force or an act of God (force majeure) permanently alters the physical layout of the servient estate, making any further enjoyment impossible.
The General Exception for Paths: This strict rule does not apply to standard rights of way; if a path is blocked by natural changes, the servient owner is generally duty-bound to carve out another reasonable route for the dominant owner .
Statutory Illustrations [Section 44]:
a. The Shifting River: A grants to B an easementary right to catch fish in a natural river running through A’s land. Due to a massive flash flood, the river permanently changes its course and runs through C’s land. B’s easement over A's land is extinguished.
b. The Destroyed Path: Access to a mountain path over which A holds a valid right of way is completely cut off and swallowed up by an earthquake. A’s right is extinguished.
9. Extinction by the Absolute Destruction of Either Heritage [Section 45]
An easement is completely extinguished when either the dominant or the servient heritage is totally and physically destroyed.
Statutory Illustration [Section 45]:
A holds a right of way over a cliffside road running along the foot of a sea cliff. Due to continuous marine erosion, the entire road is washed away and swallowed by a permanent encroachment of the sea. A’s easement is extinguished.
10. Extinction by Unity of Absolute Ownership [Section 46]
An easement is extinguished when the absolute ownership of both the dominant and the servient heritages vests concurrently in a single individual in the identical capacity . A person cannot hold an encumbrance against their own property.
Statutory Illustration [Section 46]:
A, as the owner of a house, has a right of way over B’s field. A mortgages his house, and B mortgages his field to a single creditor, C. C subsequently forecloses both mortgages through a court decree, becoming the absolute owner of both the house and the field. The right of way is permanently extinguished by unity of ownership.
11. Extinction by Continuous Non-Enjoyment [Section 47]
An easement is extinguished by operation of law if it is completely abandoned and ceases to be enjoyed for a continuous, unbroken period of twenty (20) years.
Statutory Illustration [Section 47]:
A holds an easementary right of way annexed to his house leading from the high road across three successive properties: X, Y, and Z. Before the 20-year period of non-use lapses, A physically enters and exercises his right of way across plot X. In this scenario, his parallel rights of way over the remaining plots Y and Z are protected from extinction, as the unity of the entire easement was maintained by using a portion of it.
12. Extinction of Dependent Accessory Rights [Section 48]
When a primary easement is legally extinguished, any secondary accessory rights that exist solely to facilitate that primary easement are automatically extinguished as well.
Statutory Illustration [Section 48]:
A holds a primary easement to draw water from B’s well. As an accessory right, he has a right of way across B’s land to walk to and from that well. If the primary right to draw water is extinguished due to non-use under Section 47, the accessory right of way is automatically extinguished at the same moment.
II. Suspension of Easements (Section 49)
Under Section 49, an easement is not destroyed but merely temporarily frozen or suspended when either party takes a limited, non-ownership interest in the other’s land:
1. When the dominant owner becomes entitled to the possession of the servient heritage for a limited interest (e.g., taking it on a 5-year commercial lease).
2. When the servient owner becomes entitled to the possession of the dominant heritage for a limited interest.
Operational Mechanic: The easementary right remains completely dormant during the currency of the temporary tenancy, but instantly revives the exact moment that limited interest expires.
III. Revival of Easements (Section 51)
An easement that has been technically extinguished under the provisions of Sections 45, 46, or 47 can be legally revived under exactly three strict statutory parameters:
1. Revival of an Easement Extinguished by Physical Destruction [Section 51(1)]
If an easement was extinguished under Section 45 due to the structural destruction of either property, it will fully revive if the property is re-established within twenty years under these three guidelines:
a. By Natural Alluvion: When a piece of land landlocked or washed away by water is naturally re-established before the end of 20 years due to the steady accumulation of river soil (alluvion).
b. Reconstruction of the Servient Heritage: When the destroyed servient heritage is a building or house, and it is completely rebuilt on the identical site within 20 years.
c. Reconstruction of the Dominant Heritage: When the dominant house is fully reconstructed on its original site within 20 years, provided the layout of the new windows or structures does not impose any additional burden on the servient property.
2. Revival by Court Cancellation of Unity [Section 51(2)]
If an easement was extinguished under Section 46 because a single individual acquired both properties, the easement fully revives if that transaction is subsequently set aside or cancelled by a competent civil court.
Example: If C buys both houses but the sale deed is later declared void due to fraud or misrepresentation, the original properties are separated, and the pre-existing easement instantly revives.
3. Revival by Resuming Continuous Use [Section 51(3)]
If an easement was on the verge of extinction due to non-use under Section 47, the right is successfully revived if the dominant owner formally resumes actual physical enjoyment of the right at any point before the 20-year unbroken period of non-enjoyment has fully elapsed.
IV. Comparative Table-
To assist in court practice, the following comparative table contrasts how key property interests under the Transfer of Property Act, 1882 determine, end, or extinguish compared to Easements:
Proprietary Instruments | Standard Mode of Termination | Can it Automatically Revive? | Rights of Sub-Transferees upon End |
Absolute Sale (Sec. 54) | Cannot be terminated except by an explicit re-conveyance deed. | No. Requires an entirely fresh transaction contract. | Third-party rights hold good absolutely. |
Leasehold (Sec. 111) | Terminates via Efflux of Time, Forfeiture, or Surrender. | No. Requires a formal lease renewal or holding over. | Sub-tenancies are automatically destroyed upon forfeiture. |
Easementary Right (Sec. 37-47) | Extinguished by Unity of Ownership, Non-use for 20 years, or Cessation of Necessity. | Yes. Automatically revives if conditions under Section 51 are met. | Accessory rights are automatically extinguished along with the primary right. |
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