Most easements rest on grant or on prescription, but the Indian Easements Act, 1882 also preserves a third and far older source of title: local custom. Section 18 declares in a single sentence that an easement may be acquired in virtue of a local custom, and that such easements are called customary easements. Behind that deceptively short text lies a body of doctrine drawn from the English law of custom and refined by the Privy Council and the High Courts, fixing the conditions a usage must satisfy before a court will treat it as law for a defined locality. This article examines the text of Section 18, the essential tests of antiquity, certainty, continuity and reasonableness, the distinction between a customary easement and an ordinary easement of grant or prescription, and the leading authorities including Lakshmidhar Misra v. Rangalal, Saiyid Manzur Hasan v. Saiyid Muhammad Zaman and Gokal Prasad v. Radho.
The Text and Scheme of Section 18
Section 18 of the Indian Easements Act, 1882 is among the shortest operative provisions in the statute. It states: An easement may be acquired in virtue of a local custom. Such easements are called customary easements.
The illustration appended to the section captures the paradigm case — 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, and thereby acquires, as appurtenant to it, a right to graze his cattle in accordance with the custom.
The provision does not stand alone. It is the third of the three modes by which the Act recognises an easement may come into being. The first is express or implied grant; the second is prescription under Section 15, founded on twenty years of peaceable enjoyment as of right; and the third is custom under Section 18. What unites all three is that they produce a right answering the definition of an easement in Section 4 — a right enjoyed for the beneficial enjoyment of a dominant heritage over a servient heritage not the dominant owner's own. For the foundational definition, see our note on the definitions under the Act and on the essentials of an easement.
What distinguishes Section 18 is its source of title. Where grant traces to the act of a defined owner and prescription to a defined claimant's long user, a customary easement traces to a usage prevailing in a locality — a usage that, once proved, operates as law for everyone within that locality who answers the relevant description, whether or not any particular individual has personally enjoyed it.
What Makes an Easement “Customary”
The key to Section 18 lies in the word custom. A custom is a rule which, in a particular family, class or district, has from long usage obtained the force of law. It is local law for a local area. A customary easement, accordingly, is an easement whose root of title is not the conduct of the dominant owner or his predecessors but a usage prevailing among the inhabitants of the locality in which the dominant heritage lies.
The practical consequence is significant. A person claiming a customary easement need not prove that he or his predecessors-in-title personally enjoyed the right for any prescriptive period. He need only show that he falls within the class of persons for whose benefit the custom exists and that his land answers the description to which the custom attaches. In the grazing illustration to Section 18, the new tenant acquires the grazing right the moment he breaks up and cultivates a plot — he need not himself have grazed cattle for twenty years. That is the defining advantage of a customary right over a prescriptive one: it dispenses with the requirement of personal long user.
This is also why a customary easement is conceptually closer to a particular kind of easement founded on community usage than to the ordinary easement of grant. The right is annexed to the land by force of the custom rather than created afresh by each claimant's enjoyment, though it must still satisfy the requirement of a dominant and servient heritage to qualify as an easement at all rather than a mere customary right in gross.
The Essential Tests of a Valid Custom
Because a custom displaces the ordinary law for those it binds, the courts insist that it satisfy stringent conditions before they will enforce it under Section 18. These conditions are borrowed from the English common law of custom and have been consistently applied in India. A custom relied on as the foundation of a customary easement must be: (1) ancient, (2) certain, (3) reasonable, (4) continuous, and (5) not opposed to public policy or to any statutory law.
The classic statement is that of the Privy Council in Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56, where the Board observed that a custom, in order that it may supersede the ordinary law, must be reasonable, and must besides be ancient as well as certain, and that it must 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 that it possesses the conditions of antiquity and certainty on which alone its legal title to recognition depends.
Antiquity requires that the usage be of long standing — in the English formulation, immemorial. Indian courts have not insisted on the rigid English date of legal memory (the year 1189) but require proof that the usage has existed for so long that it may fairly be regarded as having obtained the force of law in the locality. Certainty requires that both the class of persons entitled and the content of the right be definite; a vague or fluctuating claim cannot ripen into a custom. Reasonableness is tested at the custom's origin: a usage that is oppressive, or that wholly destroys the servient owner's enjoyment, will be condemned as unreasonable. Continuity requires that the usage have been enjoyed without interruption, for a custom once abandoned cannot be revived merely by renewed user.
Lakshmidhar Misra v. Rangalal — The Leading Authority
The decision most often cited on customary easements is Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56. The dispute concerned a claim by the inhabitants of a village to a right to use a piece of land (a cremation ground) by custom. The Privy Council took the opportunity to lay down with precision the requirements for proof of a custom of this kind and the line between a customary right and an easement.
Two propositions emerge from the decision. First, on the standard of proof, the Board held that a custom must be ancient, certain and reasonable, and must be established by clear and unambiguous evidence; a claim resting on loose or equivocal testimony cannot succeed. Secondly, and importantly, the Board emphasised the distinction between a customary right properly so called — a right in gross enjoyed by the inhabitants of a locality as such, requiring no dominant tenement — and a customary easement under Section 18, which, being an easement, must be appurtenant to a dominant heritage.
The Privy Council further observed that a customary right of the kind there claimed can exist only in relation to the inhabitants of a district and cannot be claimed in respect of the public at large; an indeterminate and fluctuating body such as the public cannot be the subject of a custom. This is the same principle that, in our note on the introduction to the Act, distinguishes a private easement from a public right. The decision thus remains the touchstone both for the evidentiary standard and for the conceptual boundaries of Section 18.
Customary Easement versus Customary Right in Gross
One of the most examined distinctions in this area is that between a customary easement and a customary right (or customary right in gross). The two are easily confused because both rest on local usage, but they differ in a way that matters for the application of Section 18.
A customary right in gross is a right claimed by a large or fluctuating body of persons in respect of a locality, and it is unnecessary to trace its origin to grant or prescription. Crucially, such a right does not require the existence of a dominant tenement. The classic examples are the right of the inhabitants of a village to hold a fair on a particular plot, to bathe at a ghat, or to use a cremation or burial ground. These rights belong to the inhabitants as inhabitants, not as owners of any particular land.
A customary easement under Section 18, by contrast, is still an easement. It must therefore satisfy the Section 4 requirement of a dominant and a servient heritage: the right must be enjoyed for the beneficial enjoyment of a particular piece of land. The grazing illustration to Section 18 shows this clearly — the grazing right is acquired as appurtenant to the cultivated plot, and passes with that plot. Where a usage benefits no identifiable dominant heritage but only the inhabitants generally, it is a customary right in gross and not a customary easement; courts in the line of Lakshmidhar Misra v. Rangalal have repeatedly held that such village pathways, burial grounds and bathing rights are not easements in their true sense. The practical test, then, is to ask: does the right serve a dominant tenement? If yes, Section 18 applies; if no, the right (if it exists) is a customary right enforced outside the easement framework.
Customary Easement versus Easement by Prescription
It is equally important to distinguish a customary easement under Section 18 from an easement acquired by prescription under Section 15. Both involve long enjoyment, and both arise without an express grant, but their juristic basis and their requirements differ sharply.
A prescriptive easement is founded on the personal enjoyment of the claimant and those through whom he claims. Section 15 requires that the right have been peaceably and openly enjoyed as an easement, as of right, and without interruption, for twenty years (thirty years against government property). The right belongs to the individual who has so enjoyed it; another person, however similarly placed, acquires nothing from that enjoyment.
A customary easement, by contrast, is founded on the usage of the community. The claimant need not show personal enjoyment for any fixed term; he succeeds by showing that he answers the description of the class for whose benefit the custom exists and that his land is the kind of land to which the custom attaches. The right is, in a sense, in the air over the locality, ready to attach to any qualifying dominant heritage. This is why the new tenant in the Section 18 illustration acquires the grazing right immediately on cultivating his plot. The doctrines also differ in their fixed-period requirement: prescription is rigidly twenty (or thirty) years, whereas a custom must merely be ancient, a flexible standard of long usage assessed on the evidence. For the cognate doctrines of necessity, see our note on the easement of necessity and quasi-necessity.
The Customary Right of Privacy
Among the most distinctive Indian applications of custom in the easements field is the customary right of privacy — a right, recognised in certain localities, to prevent a neighbour from opening windows or otherwise creating means of overlooking the courtyard or inner apartments where the women of a household live and work. This right has no counterpart in the English law of easements, which does not recognise a right to prevent overlooking, and it owes its existence in India entirely to local custom operating through Section 18.
The foundational decision is Gokal Prasad v. Radho (1888) ILR 10 All 358, a Full Bench of the Allahabad High Court. The plaintiff complained that the defendant's newly opened windows would overlook the courtyard where the female members of his household carried on their domestic activities. The Full Bench held that where a custom of privacy is established in the locality, the right of privacy is in its nature an easement, founded upon local usage, and that its violation by opening such windows is actionable. The court accepted the finding that in the mohalla where the parties lived a customary easement of privacy was proved.
The right of privacy thus illustrates the dynamic quality of Section 18: it allows the law of easements to absorb genuinely local social norms that the general law does not supply. But it is subject to the same tests as any custom — the privacy usage must be shown to be ancient, certain and reasonable for the particular locality; a litigant who merely asserts a personal preference for privacy, without proving a local custom, will fail. The right is negative in character, restraining the servient owner from building or opening windows, and it is annexed to the dominant dwelling-house.
Custom and Religious or Public Usage
Custom frequently underlies claims connected with religious observance — rights of procession, rights to bathe at a ghat, to cremate or bury, or to use a temple precinct. Whether such a claim falls within Section 18 depends, once again, on whether it answers the description of an easement appurtenant to a dominant heritage, or is instead a customary right in gross, or a public right enjoyed along a highway.
In Saiyid Manzur Hasan v. Saiyid Muhammad Zaman, AIR 1925 PC 36 (decided 13 November 1924), the Privy Council, through Lord Dunedin, addressed the right of a religious community to take out a procession with its appropriate observances along a public highway. The Board held that there is a right to conduct a religious procession with its appropriate ceremonies along a highway, subject to the control of the magistracy and to the rights of the rest of the public to use the highway; persons of whatever sect are entitled to conduct processions through public streets so long as they do not interfere with the ordinary use of the streets and comply with directions lawfully given. This is a public right incident to the highway rather than a customary easement under Section 18 — it requires no dominant tenement and benefits the public, not an identifiable heritage. The decision is therefore valuable precisely for marking the outer boundary of Section 18: a usage exercised on a public highway by an indeterminate body is policed as a public right, not as an easement.
The lesson for students is to keep the three categories distinct: a customary easement (Section 18, dominant heritage required); a customary right in gross (inhabitants of a locality, no dominant heritage); and a public right (the public at large, typically over a highway). Misclassification is the commonest error in this area.
Pleading and Proof of a Customary Easement
Because a custom must be strictly proved, the manner of pleading and proving a customary easement is decisive in practice. A litigant who relies on custom must plead it specifically — he must allege the existence of the local custom, identify the locality and the class of persons entitled, and state the content of the right. A claim that merely pleads long personal user (which sounds in prescription) cannot be converted into a customary-easement claim at the stage of argument.
The standard of proof was fixed by the Privy Council in Lakshmidhar Misra v. Rangalal: the custom must be established by clear and unambiguous evidence demonstrating its antiquity and certainty. Courts applying this standard have dismissed customary-easement claims where the plaintiff pleaded only thirty to thirty-five years of personal use and failed to allege any local custom at all, since such evidence proves at most a prescriptive claim and says nothing of a usage binding the locality. Evidence of repeated and uniform enjoyment by many members of the class, oral testimony of long standing, and the absence of dispute over the right are the usual means by which antiquity and certainty are made out.
The general principles governing what materials a court looks for in any easement claim — that the right is in the owner or occupier as such, for the beneficial enjoyment of his land, over other land not his own — were summarised in Nirmala Devi v. Ram Sahai, AIR 2004 All 358, and apply with equal force to a customary easement, the only difference being the substitution of proof of custom for proof of grant or prescription.
Extinction and Limits of Customary Easements
A customary easement, once established, is not immune from loss. Like other easements it may be extinguished, though some modes of extinction sit awkwardly with a right founded on community usage. Because the right rests on a custom enjoyed in common, it generally cannot be released or surrendered by a single dominant owner so as to bind the rest; the custom continues for the locality even if one beneficiary chooses not to exercise it.
The most important limit, however, is internal: the right exists only to the extent and in the manner sanctioned by the custom. The custom defines and confines the right. A dominant owner cannot, under cover of a customary easement, enlarge the burden on the servient heritage beyond what the usage warrants — he cannot, for example, claim under a custom of grazing a right to quarry, or under a custom of using a pathway a right to lay a permanent structure. Where the user exceeds the custom, the excess is a trespass, not an easement.
A custom may also fail at the threshold if it offends public policy or contravenes statute, however ancient and certain it may be. A usage that is immoral, or that has been overridden by legislation, cannot be enforced as a customary easement. And a custom that has been genuinely abandoned — not merely unexercised for a season, but discontinued by the community — loses its force and cannot be revived by isolated later acts of user. For the cognate questions of how easements generally cease and revive, students should also consult the broader scheme in our note on the Indian Easements Act hub.
Distinguishing Customary from Quasi-Easements
Students frequently bracket customary easements with quasi-easements because both are non-standard sources of easement-like rights, but the two have nothing in common in their juristic basis. A quasi-easement arises on the severance of a single tenement: while two plots are in common ownership there can be no true easement (one cannot have an easement over one's own land), but a continuous and apparent quasi-easement enjoyed during unity of ownership may, on severance, ripen into a true easement under the rule in Section 13. Its root is the prior arrangement of a single owner's own land.
A customary easement, by contrast, owes nothing to the prior arrangement of a single owner's land and nothing to severance. Its root is the usage of a community over land that has, throughout, belonged to different owners. The two doctrines answer wholly different questions: quasi-easement asks what implied rights pass when one estate is divided; customary easement asks what rights a local usage confers on all qualifying heritages within a locality. Keeping these sources of title separate — grant, prescription, severance (quasi-easement), and custom — is the surest way to navigate examination problems on the acquisition of easements.
Examination Pointers on Section 18
For judiciary and CLAT-PG candidates, the high-yield points on Section 18 are these. First, the bare text: an easement may be acquired in virtue of a local custom, and such easements are called customary easements — learn the grazing illustration as the model fact-pattern. Secondly, the five tests of a valid custom — ancient, certain, reasonable, continuous, and not contrary to law or public policy — sourced authoritatively to Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56.
Thirdly, master the three-way classification: customary easement (dominant heritage required), customary right in gross (inhabitants of a locality, no dominant heritage), and public right (public at large, typically over a highway), with Saiyid Manzur Hasan v. Saiyid Muhammad Zaman as the illustration of a public right of procession. Fourthly, the customary right of privacy from Gokal Prasad v. Radho as the uniquely Indian application of Section 18, with no English counterpart. Finally, the contrast with prescription under Section 15: prescription needs twenty years of personal user, custom needs proof of a community usage but no personal long user by the claimant. A clean answer states the text, applies the five tests to the facts, classifies the right correctly, and cites the right authority for each proposition.
Frequently asked questions
What does Section 18 of the Indian Easements Act, 1882 say?
Section 18 states that an easement may be acquired in virtue of a local custom, and that such easements are called customary easements. Its illustration gives the example of a village custom entitling every cultivator of village land to graze his cattle on the common pasture, the right attaching to a plot as soon as the tenant breaks it up and cultivates it.
What conditions must a custom satisfy to support a customary easement?
The custom must be ancient (of long standing), certain (definite as to the class entitled and the content of the right), reasonable (tested at its origin), continuous, and not opposed to statute or public policy. The Privy Council in Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56, held that such a custom must be established by clear and unambiguous evidence of its antiquity and certainty.
How does a customary easement differ from an easement by prescription?
A prescriptive easement under Section 15 rests on the claimant's own peaceable enjoyment as of right for twenty years (thirty against government). A customary easement under Section 18 rests on community usage: the claimant need not prove any personal long user, only that he belongs to the class for whose benefit the custom exists and that his land answers the description to which the custom attaches.
What is the difference between a customary easement and a customary right in gross?
A customary easement must be appurtenant to a dominant heritage and so satisfies the Section 4 requirement of dominant and servient tenements. A customary right in gross belongs to the inhabitants of a locality as such and needs no dominant tenement, for example a right to hold a fair or to use a cremation ground. Lakshmidhar Misra v. Rangalal stresses that such village rights are often not easements in their true sense.
Is the customary right of privacy an easement?
Yes, where a local custom of privacy is proved. In Gokal Prasad v. Radho (1888) ILR 10 All 358, a Full Bench of the Allahabad High Court held that the right of privacy, where it exists, is in its nature an easement founded upon local usage, so that opening windows overlooking a household's courtyard, contrary to the established custom of the mohalla, is actionable. It has no counterpart in English easement law.
Is a right to take out a religious procession along a highway a customary easement?
No. In Saiyid Manzur Hasan v. Saiyid Muhammad Zaman, AIR 1925 PC 36, the Privy Council, per Lord Dunedin, held that there is a right to conduct a religious procession with its appropriate observances along a highway, subject to the magistracy's control and the public's rights. This is a public right incident to the highway, requiring no dominant heritage, and not a customary easement under Section 18.