37. Extinction by dissolution of right of servient owner.—When, from a cause which preceded
the imposition of an easement, the person by whom it was imposed ceases to have any right in the
servient heritage, the easement is extinguished.
Exception.—Nothing in this section applies to an easement lawfully imposed by a mortgagor in
accordance with section 10.
Illustrations
(a) A transfers Sultanpur to B on condition that he does not marry C. B imposes an easement on Sultanpur.
Then B marries C. B’s interest in Sultanpur ends, and with it the easement is extinguished.
(b) A, in 1860, let Sultanpur to B for thirty years from the date of the lease. B, in 1861, imposes an easement
on the land in favour of C, who enjoys the easement peaceably and openly as an easement without interruption
for twenty-nine years. B’s interest in Sultanpur then ends, and with it C’s easement.
(c) A and B, tenants of C, have permanent transferable interests in their respective holdings. A imposes on
his holding an easement to draw water from a tank for the purpose of irrigating B’s land. B enjoys the easement
for twenty years. Then A’s rent falls into arrear and his interest is sold. B’s easement is extinguished.
(d) A mortgages Sultanpur to B, and lawfully imposes an easement on the land in favour of C in accordance
with the provisions of section 10. The land is sold to D in satisfaction of the mortgage-debt. The easement is not
thereby extinguished.
38. Extinction by release.—An easement is extinguished when the dominant owner releases it,
expressly or impliedly, to the servient owner.
Such release can be made only in the circumstances and to the extent in and to which the dominant
owner can alienate the dominant heritage.
An easement may be released as to part only of the servient heritage.
Explanation I.—An easement is impliedly released—
(a) where the dominant owner expressly authorises an act of a permanent nature to be done on
the servient heritage, the necessary consequence of which is to prevent his future enjoyment of the
easement, and such act is done is pursuance of such authority;
(b) where any permanent alteration is made in the dominant heritage of such a nature as to
show that the dominant owner intended to cease to enjoy the easement in future.
Explanation II.—Mere non-user of an easement is not an implied release within the meaning of
this section.
1. Ref. by Act 47 of 1963, s. 44 (w.e.f. 1-3-1964).
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Illustrations
(a) A, B and C are co-owners of a house to which an easement is annexed. A, without the consent of B and
C, releases the easement. This release is effectual only as against A and his legal representative.
(b) A grants B an easement over A’s land for the beneficial enjoyment of his house. B assigns the house to
C. B then purports to release the easement. The release is ineffectual.
(c) A, having the right to discharge his eavesdroppings into B's yard, expressly authorises B to build over
this yard to a height which will interfere with the discharge. B builds accordingly. A’s easement is extinguished
to the extent of the interference.
(d) A, having an easement of light to a window, builds up that window with bricks and mortar so as to
manifest an intention to abandon the easement permanently. The easement is impliedly released.
(e) A, having a projecting roof by means of which he enjoys an easement to discharge eavesdroppings on
B’s land, permanently alters the roof so as to direct the rain-water into a different channel and discharge it on
C’s land. The easement is impliedly released.
39. Extinction by revocation.—An easement is extinguished when the servient owner, in exercise
of a power reserved in this behalf, revokes the easement.
40. Extinction on expiration of limited period or happening of dissolving condition.—An
easement is extinguished where it has been imposed for a limited period, or acquired on condition that
it shall become void on the performance or non-performance of a specified act, and the period expires
or the condition is fulfilled.
41. Extinction on termination of necessity.—An easement of necessity is extinguished when the
necessity comes to an end.
Illustration
A grants B a field inaccessible except by passing over A’s adjoining land. B afterwards purchases a part of
that land over which he can pass to his field. The right of way over A’s land which B had acquired is
extinguished.
42. Extinction of useless easement.—An easement is extinguished when it becomes incapable of
being at any time under any circumstances beneficial to the dominant owner.
43. Extinction by permanent change in dominant heritage.—Where, by any permanent change
in the dominant heritage, the burden on the servient heritage is materially increased and cannot be
reduced by the servient owner without interfering with the lawful enjoyment of the easement, the
easement is extinguished, unless—
(a) it was intended for the beneficial enjoyment of the dominant heritage, to whatever extent the
easement should be used; or
(b) the injury caused to the servient owner by the change is so slight that no reasonable person
would complain of it; or
(c) the easement is an easement of necessity.
Nothing in this section shall be deemed to apply to an easement entitling the dominant owner to
support of the dominant heritage.
44. Extinction on permanent alteration of servient heritage by superior force.—An easement
is extinguished where the servient heritage is by superior force so permanently altered that the
dominent owner can no longer enjoy such easement:
Provided that, where a way of necessity is destroyed by superior force, the dominant owner has a
right to another way over the servient heritage; and the provisions of section 14 apply to such way.
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Illustration
(a) A grants to B, as the owner of a certain house, a right to fish in a river running through A’s
land. The river changes its course permanently and runs through C’s land. B’s easement is
extinguished.
(b) Access to a path over which A has a right of way is permanently cut off by an earthquake. A’s
right is extinguished.
45. Extinction by destruction of either heritage.—An easement is extinguished when either the
dominant or the servient heritage is completely destroyed.
Illustration
A has a right of way over a road running along the foot of a sea-cliff. The road is washed away by a
permanent encroachment of the sea. A’s easement is extinguished.
46. Extinction by unity of ownership.—An easement is extinguished when the same person
becomes entitled to the absolute ownership of the whole of the dominant and servient heritages.
Illustrations
(a) 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 C. Then C forecloses both mortgages and becomes thereby absolute owner of both house and field. The
right of way is extinguished.
(b) The dominant owner acquires only part of the servient heritage: the easement is not extinguished, except
in the case illustrated in section 41.
(c) The servient owner acquires the dominant heritage in connection with a third person: the easement is not
extinguished.
(d) The separate owners of two separate dominant heritages jointly acquire the heritage which is servient to
the two separate heritages: the easements are not extinguished.
(e) The joint owners of the dominant heritage jointly acquire the servient heritage: the easement is
extinguished.
(f) A single right of way exists over two servient heritages for the beneficial enjoyment of a single dominant
heritage. The dominant owner acquires one only of the servient heritages. The easement is not extinguished.
(g) A has a right of way over B’s road. B dedicates the road to the public. A’s right of way is not
extinguished.
47. Extinction by non-enjoyment.—A continuous easement is extinguished when it totally ceases
to be enjoyed as such for an unbroken period of twenty years.
A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.
Such period shall be reckoned, in the case of a continuous easement, from the day on which its
enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner; and,
in the case of a discontinuous easement, from the day on which it was last enjoyed by any person as
dominant owner:
Provided that if, in the case of a discontinuous easement, the dominant owner, within such period,
registers, under the Indian Registration Act, 18771
(3 of 1877), a declaration of his intention to retain
such easement, it shall not be extinguished until a period of twenty years has elapsed from the date of
the registration.
Where an easement can be legally enjoyed only at a certain place, or at certain times, or between
certain hours, or for a particular purpose, its enjoyment during the said period at another place, or at
other times, or between other hours, or for another purpose, does not prevent its extinction under this
section.
The circumstance that, during the said period, no one was in possession of the servient heritage,
or that the easement could not be enjoyed, or that a right accessory thereto was
enjoyed, or that the dominant owner was not aware of its existence, or that he enjoyed it in ignorance
of his right to do so, does not prevent its extinction under this section.
1. See now the Registration Act, 1908 (16 of 1908).
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An easement is not extinguished under this section—
(a) where the cessation is in pursuance of a contract between the dominant and servient owners;
(b) where the dominant heritage is held in co-ownership, and one of the co-owners enjoys the
easement within the said period, or
(c) where the easement is a necessary easement.
Where several heritages are respectively subject to rights of way for the benefit of a single
heritage, and the ways are continuous, such rights shall, for the purposes of this section, be deemed to
be a single easement.
Illustration
A has, as annexed to his house, rights of way from the high road thither over the heritages X and Z and the intervening
heritage Y. Before the twenty years expire, A exercises his right of way over X. His rights of way over Y and Z are not
extinguished.
48. Extinction of accessory rights.—When an easement is extinguished, the rights (if any)
accessory thereto are also extinguished.
Illustration
A has an easement to draw water from B’s well. As accessory thereto, he has a right of way over B’s land to
and from the well. The easement to draw water is extinguished under section 47. The right of way is also
extinguished.
49. Suspension of easement.—An easement is suspended when the dominant owner become
entitled to possession of the servient heritage for a limited interest therein, or when the servient owner
becomes entitled to possession of the dominant heritage for a limited interest therein.
50. Servient owner not entitled to require continuance.—The servient owner has no right to
require that an easement be continued; and, notwithstanding the provisions of section 26, he is not
entitled to compensation for damage caused to the servient heritage in consequence of the
extinguishment or suspension of the easement, if the dominant owner has given to the servient owner
such notice as will enable him, without unreasonable expense, to protect the servient heritage from
such damage.
Compensation for damage caused by extinguishment or suspension.—Where such notice has
not been given, the servient owner is entitled to compensation for damage caused to the servient
heritage in consequence of such extinguishment or suspension.
Illustration
A, in exercise of an easement, diverts to his canal the water of B’s stream. The diversion continues for many years, and
during that time the bed of the stream partly fills up. A then abandons his easement, and restores the stream to its ancient
course. B’s land is consequently flooded. B sues A for compensation for the damage caused by the flooding. It is proved that
A gave B a month’s notice of his intention to abandon the easement, and that such notice was sufficient to enable B, without
unreasonable expense, to have prevented the damage. The suit must he dismissed.
51. Revival of easements.—An easement extinguished under section 45 revives (a) when the
destroyed heritage is, before twenty years have expired, restored by the deposit of alluvion; (b) when
the destroyed heritage is a servient building and before twenty years have expired such building is
rebuilt upon the same site; and (c) when the destroyed heritage is a dominant building and before
twenty years have expired such building is rebuilt upon the same site and in such a manner as not to
impose a greater burden on the servient heritage.
An easement extinguished under section 46 revives when the grant or bequest by which
19
the unity of ownership was produced is set aside by the decree of a competent Court. A necessary
easement extinguished under the same section revives when the unity of ownership ceases from any
other cause.
A suspended easement revives if the cause of suspension is removed before the right is
extinguished under section 47.
Illustration
A, as the absolute owner of field Y, has a right of way thither over B’s field Z. A obtains from B a lease of Z
for twenty years. The easement is suspended so long as A remains lessee of Z. But when A assigns the lease to
C, or surrenders it to B, the right of way revives.