The main legal point established in the judgment is that an easement of necessity arises only when the property cannot be used at all without it, and convenience is not the test, but absolute necessity.

Anantakrishna Ayyar, J.

1. This second appeal raises an interesting question regarding an easement of necessity, and about the proper construction to be put on Section 41, Easements Act. The facts are not now in dispute. The plaintiffs are the appellants. There were four brothers who formed the members of an undivided Hindu family. About 40 years ago the four brothers effected a partition of the joint family properties. A plot of land with some houses thereon was divided among the four brothers. On the north a public street ran east to west, and on the south there were cultivated fields belonging to strangers. The southern portion of the common land consisted of account gardens, the same was divided into three, the western portion (B-3) fell to the share of the second brother, the middle portion C-3 fell to the share of the 3rd brother, and the easternmost portion (D-3) to the fourth brother. The remaining land was practically divided into four portions. The westernmost A, A-1, and A-2, fell to the 1st brothers share; the portion next east of that, B, B-l, and B-2, fell to the share of the 2nd brother; the portion next east of that, C, C-1, and C-2, fell to the share of the 3rd brother; and the easternmost portion, D, D-1, and D-2. fell to the share of the fourth brother. B-2 and B-3 were allotted to the 2nd brother and access from B2 and B-3 could be secured only through C-3. It is admitted that there was an easement of way of necessity from B-2 to B-3 through C-3. Some years later, the 1st brother purchased B-3 from the 2nd brother, and some years still later, B-2 (with B and B-l) was also purchased by the 1st brother. The plaintiffs (the sons of the first brother) filed the suit against defendants (the sons of the 3rd brother) for a declaration that they are entitled to have a right of way from B2 to B3 through C-3 as was used by the 2nd brother when he was owner of B-2 and B-3. The defendants denied the plaintiffs right and urged that the right of way enjoyed by the second brother was extinguished after B-3 was purchased by the first brother, since access to B-3 could be had from the first brothers plot A-2, and that the plaintiffs could not by their purchasing B-2 long after B-3, claim to have a revival of the right of way to pass from B-2 to B-3 through C-3, as now the plaintiffs could pass from B-2 to B-3 through their own land A-2.

2. Both the lower Courts have dismissed the plaintiffs suit, and the plaintiffs have preferred this second appeal. An easement of necessity would arise only at the time of severance of tenements, when an easement is necessary for enjoying the transferred or the partitioned property: Section 13, Easements Act. A right of way is not an apparent and continuous easement: see IIlus. (b), Section 5, Easements Act. An easement of necessity could not be claimed unless the property divided or transferred could not be enjoyed at all except when an easement is imposed upon the other property:

An easement of necessity is an easement without which a property cannot be used at all and not one merely necessary to the reasonable enjoyment of the property: see Sukhdei v. Kedar Nath [1910] 33 All. 467.

3. As observed by Sir Arnold White Kt., C.J., and Davies, J., in Krishnamaraya v. Manaju [1905] 28 Mad. 495:

If A has a means of access to his property without going over Bs land, A cannot claim a right of way over Bs land under Section 13, Easements Act, on the ground that it is the most convenient means of access.

4. Their Lordships held that the "law under Section 13 Cl. E, Easements Act is the same as the law in England." Their Lordships were not prepared to agree with the suggestion made in Municipality of City of Poona v. Vaman Rajaram [1895] 19 Bom. 797, that the question of convenience was a matter for consideration. In Durgamani Debya v. Ambica Charan Sarma [1906] 4 C.L.J. 367, at p. 369 Maclean, C.J., and Geidt, J., confirmed the judgment of Mookerjee, J., holding that to constitute an easement of n