Under the doctrine of lost grant, a long-continued use or possession can raise a legal presumption that the right exercised was previously conveyed to the user or possessor and that the instrument of conveyance has been lost.[1]
According to Halsbury Laws of England –
“The courts first laid down the rule that from the user of a lifetime the presumption arose that a similar use had existed from remote antiquity. As it could not but happen that in many cases, such a presumption was impossible, in order to support possession and enjoyment, which the law ought to have invested with the character of rights, recourse was had to the theory of lost modern grants…”[2]
The doctrine only applies where the enjoyment or use of land cannot otherwise be reasonably accounted for.[3] In the absence of an instrument of conveyance, enjoyment since the time of legal memory is to be viewed as an indication that the right claimed had been conferred on the claimant (or his predecessors) by a grant.[4] The grant maybe expressed or presumed.[5] The onus of proving continued and uninterrupted enjoyment of property through long use is on the plaintiff.
The court will not presume a lost grant in cases where there was no person who could ever have made such a grant, or where there was no person or persons competent to receive a particular grant.[6] As there is a legal presumption of a grant, the doctrine is not applicable unless throughout the necessary period there existed some person or persons, alone or together, capable of conveying the interest claimed to have been transferred by the lost grant.[7]
For valid application of the doctrine, the only conclusive evidence is that possession must be uninterrupted for a sufficient length of time. The doctrine of lost grant is not based upon evidence of long use but for default of evidence.[8] A person seeking to establish a claim to an easement under this doctrine should plead lost grant, but need not state in his pleadings the date and names of the parties to the alleged modern grant.[9]
In a Privy Council decision in Chockalingam Pillai v Mayandi Chettiar[10], Lord Buckmaster explained the presumption of a lawful origin in support of proprietary rights long and quietly enjoyed in the following terms:
“When every party to the original transaction has passed away and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy, which the courts always adopt, of securing, as far as possible, quiet possession, to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made.”
In the decision of the House of Lords in Harris and Earl of Chesterfield[11], Lord Loreburn LJ held:
“… But the principle is surely based upon good sense. The lapse of time gradually effaces records of past transactions, and it would be intolerable if anybody of men should be dispossessed of property which they and their predecessors have enjoyed during all human memory, merely upon the ground that they cannot show how it was originally acquired.
That is the reason why the law infers that the original acquisition was lawful, unless the property claimed is such that no such body of men could lawfully acquire it, or the facts show that it could not have been acquired in the only ways which the law allows.”
In the above decision, the question before the court was whether a presumption of lost grant could be made by virtue of the parishes exercising fishery rights admittedly for several centuries over a river. The House of Lords held by a majority that no presumption of lost grant was available in the case, inasmuch as the free holders of several parishes who were an indefinite and fluctuating body of persons could not be proper grantees in law.
The above decision was referred to in a decision of the Calcutta High Court in Asrabulla v Kiamatulla Haji Chaudhury[12], where the plaintiffs claimed that since time immemorial the inhabitants of a village had been grazing their cattle in a disputed land openly and without any interruptions and thereby, they had acquired a right of pasturage by virtue of the doctrine of presumption of lost grant.
Justice B K Mukherjea (as he then was), speaking for the Division Bench held thus:
“… in order that there may be a presumption of lawful origin, it is necessary to establish that there was no legal bar in the way of valid grant at its inception, and that not only there was a capable grantor but there was a capable grantee also in whose favour the grant could have been made. If for any reason a valid grant could not have been made no presumption of such a grant can arise.”
The Privy Council in N Sankaranarayana Pillayan v Board Of Commissioners For The Hindu Religious Endowments, Madras[13], dealt with a case where the parties claimed that they were the owners of the suit properties, comprising of both inam (rent free) and ryotwari or ayan (assessed) lands, and that only a part of the income was subject to a charge for meeting the expenses of the midnight kattalai according to a prescribed scale in the Sri Papavinasaswami Temple at Papanasam in Madras.
The question before the court was whether the suit properties had been wholly dedicated to the religious charity or whether there had been merely a charge on the income of the properties in favour of the charity. The court found that the endowment was founded by the Carnatic Rajas and not by the ancestors of the appellants, who were mere managers or supervisors of the endowment.
The properties and the income therefrom were absolutely dedicated to the temple, and mainly for the purposes of the midnight services, and the appellants had no beneficial interest in any surplus income. Discussing the documentary evidence for the purpose of determining the true nature of the endowment, Justice M R Jayakar held thus:
“As there was no deed or grant or any document throwing light on the nature or terms of the endowment, the High Court, in their Lordships’ opinion, was justified in relying on other documentary evidence for the purpose of determining what the true nature of the endowment. Such documentary evidence consisted, inter alia, of inam-registers, title deeds, statements in survey and settlement registers, pattas and orders of various revenue authorities to their subordinates in connection with the endowment in question.”
… In the present case no such arrangement is in evidence with which the possession or enjoyment of the appellants’ family could be said to have commenced. The only arrangement mentioned is the compromise between the members of the family to which the endowment was not a party.”
The Privy Council referred to the decision in Chockalingam Pillai and discussed the applicability of doctrine of lost grant in cases involving absence of the existence of actual evidence. It was held thus:
“… The other case relied on was Mahammad Mazaffar-al-Musavi v. Jabeda Khatun (AIR 1930 PC 103) where the rule was affirmed, relating to the presumption of a lawful origin in support of proprietary rights long and quietly enjoyed, as it was explained in an earlier case [Chockalingam Pillai v Mayandi Chettiar ILR 19 Madras 485] by Lord Buckmaster…But it was explained in the same case that this rule is applicable where there is absence or failure of actual evidence.
The presumption, it was stated, of an origin in some lawful title which the courts have so often readily made in order to support possessory rights long and quietly enjoyed, arises where no actual proof of title is forthcoming, and the rule has to be resorted to because of the failure of actual evidence. In the present case, where there is ample and convincing proof of the nature of the grant, the object of the endowment and the capacity of the persons claiming the user and enjoyment, the rule can hardly have any application.”
In a later decision of the Privy Council in Lakshmidhar Misra v Rangalal[14], the appellants in a representative capacity on behalf of the villagers claimed a parcel of land as a cremation ground since time immemorial. The respondent on the other hand claimed the land for the purpose of a private industry. The Subordinate Judge in first appeal held that the reservation of land amounted to a dedication or a grant by the landlord.
The High Court in second appeal set aside the decision of the Subordinate Judge on the ground that there existed no valid grant and dismissed the appellant‘s suit. In appeal, the Privy Council held that the issue of whether the land had been used as a cremation ground was a mixed question of fact and law and the appellant’s claim that the disputed property was the village cremation ground was based on customary practice attracting a legal custom. Hence the doctrine of lost grant was held to have no applicability.
Explaining the applicability of doctrine of lost grant, Lord Radcliffe held thus:
“.. It is essentially a suit to establish the rights of the villagers in the disputed area. No one claimed or spoke of the land as subject to the rights of the general public nor indeed would it be easy to give a meaning to such a conception as applied to a cremation ground in a particular village. But dedication is only known to English law as something equivalent to an irrevocable licence granted by the owner of soil to the use of the public.
Dedication of a piece of land to a limited section of the public, such as the inhabitants of a village, is a claim unknown in law, and evidence limited to such special user would not justify a finding of dedication [see Poole v. Huskinson, Hildreth v. Adamson and Bermonds ey v. Brown. Much the same result might well be achieved by the creation of a charitable trust binding the land, but that is not dedication, nor is it in question here.
At no stage of the hearing is there any record of a claim that the village community constitutes a corporation administering a trust for some classes of its inhabitants, nor was any such argument advanced before their Lordships. This doctrine originated as a technical device to enable title to be made by prescription despite the impossibility of proving ‘immemorial user.’
By English common law prescription had to run from time immemorial which, by convention, began in the year 1189. If it was possible to demonstrate that the user in question, though ancient, originated since 1189 the proof of title by the prescription of immemorial user failed. To get round this difficulty judges allowed, or even encouraged, juries to find that the right in question, though less ancient than 1189, originated in a lost grant since that date.
Thus the right acquired the necessary legal origin. But such a right, just as much as an easement, had to be attached to and to descend with an estate: moreover, since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant under English law.
A right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant. There are no admissible grantees. In fact, the doctrine of lost grant has no application to such rights as those of the inhabitants of a particular locality to continue an ancient and established user of some piece of land.”
In a three judge Bench decision of Supreme Court in Raja Braja Sundar Deb v Moni Behara[15], it was claimed that the principal defendants and their ancestors had long remained in undisturbed actual physical possession of a fishery on a fixed annual rental and had acquired this right in all possible ways i.e. by grant, custom, adverse possession and easement.
A suit for injunction was brought by the plaintiff on behalf other fishermen residing in nine villages on the ground that being the proprietors of the fishery, they were the exclusive owners of the fishery and the defendants were interfering with the plaintiff‘s right of enjoyment and causing losses.
The Trial Court passed a decree in favour of the plaintiff which was later modified in appeal by the High Court, where it was held that the defendants by virtue of lost grant had exclusive rights as tenants to fish in the fishery only during the Hilsa season. Reversing the decision of the High Court Justice Meher Chand Mahajan (as he then was), speaking for the Bench held thus:
“12. …We find it difficult to uphold the view of the High Court that the defendants were in possession of the disputed fishery under a lost grant. This doctrine has no application to the case of inhabitants of particular localities seeking to establish rights of user to some piece of land or water.
As pointed out by Lord Radcliffe in Lakshmidhar Misra v. Rangalal [AIR 1950 PC 56] the doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user and that since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant, and that a right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant, there being no admissible grantees.
Reference in this connection may be made to a Bench decision of the Calcutta High Court in Asrabulla v. Kiamatulla [AIR 1937 Cal 245] wherein the law on this subject has been examined in some detail. In that case the question arose whether the right of pasturage claimed by a whole body of villagers could be acquired by grant, express or presumed.
After an examination of a number of English and Indian cases it was held that no lost grant could be presumed in favour of a fluctuating and unascertained body of persons who constitute the inhabitants of a village and that such a right could only be acquired by custom. The defendants in this case are a fluctuating body of persons and their number increases or decreases by each birth or death or by influx or efflux of fishermen to or from these villages…”
According to ‘Halsbury Laws of England’:
“The presumption can only be rebutted by evidence that the existence of such a grant is impossible; nothing short of such evidence will suffice and a judge is not entitled to refuse to presume a grant merely because he is convinced that it was never in fact granted.”[16]
A two judge Bench of Supreme Court in Buddu Satyanarayana v Konduru Venkatapayya[17], dealt with an appeal arising out of a suit for recovery of possession of certain immovable properties. A suit was instituted by the Executive Officer appointed by government for ejectment of the defendants on the allegation that the properties belonged to the temple, having been given to it by a zamindar in 1770 AD. It was contended that the defendants were in possession by virtue of being the Archakas and were wrongfully claiming the properties as their own.
The suit was instituted giving notice to the defendants to make over possession of the suit properties to the plaintiff as the Executive Officer of the temple. The High Court upheld the order of the Subordinate Judge decreeing the plaintiff‘s suit. On behalf of the defendants, it was argued before the Court that, by virtue of the defendants and their predecessors being in possession of the properties from ancient times, a valid presumption of some lawful title should arise by virtue of doctrine of lost grant.
Justice S R Das speaking for the Bench rejected the contention and held thus:
“2. … There is no doubt, on the authorities, that a presumption of an origin in some lawful title may in certain circumstances be made to support possessory rights long and quietly enjoyed where no actual proof of title is forthcoming but it is equally well established that that presumption cannot be made where there is sufficient evidence and convincing proof of the nature of the grant and the persons to whom it was made. It is true that the original grant is not forthcoming but turning to the evidence we find two documents which appear to us to be decisive on the question of title…
It will be noticed that neither in the Inam Register Ex. P-3 nor in the statement Ex. D-3 is there any mention of the Archakas as the grantee or for the matter of that, having any the least interest, personal or otherwise, in the subject-matter of the Inam grant. The two exhibits quite clearly indicate that the Inam grant was made in favour of the temple by the grantor and that in the face of this definite evidence and proof of the nature of the grant, no presumption of a lost grant can be made in favour of the Archakas. We, therefore, in agreement with the High Court, hold that the deity was the grantee and the first question raised before us must be answered against the appellants.”
A Constitution Bench of the Court in Monohar Das Mohanta v Charu Chandra Pal[18], had to deal with a suit for recovery of possession of various plots of land filed by the appellant, a Mahant of a religious institution against the defendants. In the alternate, the appellant sought for assessment of fair and equitable rent.
The respondents contested the suits, and pleaded that the disputed lands did not form part of the zamindari but a grant had been made in favour of their predecessors-in-title long prior to the permanent settlement and that neither the Maharaja of Burdwan nor the plaintiff claiming under him had any title to them.
The District Court upheld the decision of the Munsif and held that the defendants and the predecessors had been in possession for a very long time without payment of rent and a presumption of lost grant could be made in their favour. The High Court dismissed the appeal against the decision of the District Court. The issue before the Court was whether on the materials on record the courts below were right in presuming a lost grant in favour of the defendants.
The Court held that no presumption of a lost grant could be made in favour of the defendants, and that the plaintiff was entitled to assessment of fair and equitable rent on the holdings in their possession.
Speaking for the Bench, Justice T L Venkatarama Ayyar, explained the applicability of the doctrine of lost grant in the following terms:
“7. The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost.
It was a presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumptio juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went against it. ‘It cannot be the duty of a Judge to presume a grant of the non-existence of which he is convinced’ observed Farwell, J. in Attorney-General v. Simpson [(1901) 2 Ch D 671, 698] . So also the presumption was not made if there was any legal impediment to the making of it.
Thus, it has been held that it could not be made, if there was no person competent to be the recipient of such a grant, as where the right is claimed by a fluctuating body of persons.
That was held in Raja Braja Sundar Deb v. Moni Behara [1951 SCR 431, 446] . There will likewise be no scope for this presumption, if there is no person capable of making a grant: (Vide Halsbury’s Laws of England, Vol. IV, p. 574, para 1074); or if the grant would have been illegal and beyond the powers of the grantor. (Vide Barker v. Richardson [4 B & Ald 579: 106 ER 1048 at 1049] and Rochdale Canal Company v. Radcliffe [18 QB 287: 118 ER 108 at 118] ).”
In Konda Lakshmana Bapuji v Government of A P[19] , the respondent claimed that the land in dispute was shown as Maqta land and later as Inam land. The appellant claimed to be an assessee of one of the successors to the said Maqta and he had occupied the land in 1958 and constructed a building upon it. It was argued that the principle of lost grant would apply as the appellant has been in possession of the land in dispute for a considerable length of time under an assertion of title.
It was alleged by the respondent that the claim of the appellant was not lawful because the land never belonged to the said Maqta; even otherwise it vested in the Government with effect from the said date and the order of the Collector, correcting entries in the record of rights, had become final.
A two judge Bench of the Court, while rejecting the claim of doctrine of lost grant, referred to the decision of Monohar Das Mohanta and held that a presumption of lost grant will not be available to the appellant who traced his possession from 1954 under an unregistered perpetual lease from the erstwhile Inamdar (Maqtedar).
A two judge Bench of the Court in Braja Kishore Jagdev v Lingraj Samantaray[20], dealt with the respondent’s claim to be a hereditary trustee of a public religious institution based on the contention that his ancestors had been entrusted with the management of affairs of the religious institution which had been established long ago by an unknown founder.
It was contended by the respondent that their family had been performing seva and puja without any interruption whatsoever as marfatdars and the office of marfatdar was hereditary and regulated by custom.
The appellants contested the claim of the respondent and the Assistant Commissioner rejected the claim of the respondent. However, the High Court in appeal allowed the respondent’s claim and held him to be a hereditary trustee based on the doctrine of lost grant. Justice S Rajendra Babu while setting aside the High Court’s decision held thus:
“6. The other basis upon which the High Court passed its judgment is that the requirements of law that they are hereditary trustees ‘since the time of founder’ occurring in the definition of ‘hereditary trustee’ is lost in antiquity and therefore it is not possible to have any direct evidence to establish the line of succession but could be derived in the doctrine of ‘lost grant’. It is open to the court to infer grant from immemorial use when such user is open, as of right and without interruption but grant will not be inferred if the user can be explained otherwise.
The fiction of a ‘lost grant’ is a mere presumption from long possession and exercise of user by easement with acquiescence of the owner, that there must have been originally a grant to the claimant, which had been ‘lost’. There can be no such presumption of a ‘lost grant’ in favour of a person who constitutes trustees in succession. We do not think that, with the material on record, any such interference (sic inference) is possible.
Firstly, the contention had been advanced before the courts that the deity is a private trust and not covered by the enactment; having failed in that regard now they want to hang on to the fact that they are hereditary trustees. In establishing the same they have miserably failed by not producing evidence of any kind…”
Summing Up
From the analysis of the precedent on the subject, the following principles can be culled out:
(i) The doctrine of lost grant SUPPLIES A RULE OF EVIDENCE. The doctrine is applicable in the absence of evidence, due to a lapse of time, to prove the existence of a valid grant issued in antiquity. However, the court is not bound to raise the presumption where there is sufficient and convincing evidence to prove possession or a claim to a land in which case the doctrine of lost grant will have no applicability;
(ii) Where it is IMPOSSIBLE FOR THE COURT TO DETERMINE THE CIRCUMSTANCES under which the grant was made, an assumption is made about the existence of a valid and positive grant by the servient owner to the possessor or user. The grant maybe express or presumed. Once the assumption is made, the court shall, as far as possible, secure the possession of those who have been in quiet possession;
(iii) For a lawful presumption there must be no legal impediments. For the applicability of the doctrine it is necessary to establish that at the inception when the grant was made not only was there a valid grant but also capable grantees in whose favour the grant could have been made. In the absence of defined grantees, there will be no presumption of lost grant;
(iv) For the applicability of the doctrine of lost grant, there must be long, uninterrupted and peaceful enjoyment of an incorporeal right. Uninterrupted enjoyment includes continuous use or possession. The requisite period of use and possession is variable and to be determined from case to case; and
(v) A distinction has to be made between an assertion of rights due to a prolonged custom and usage and that by doctrine of lost grant.
[1] Jerome J. Curtis, ” Reviving The Lost Grant” Real Property, Probate And Trust Journal 23, No. 3 (1988) at
pages 535-60.
[2] Halsbury Laws of England, Vol 14, Fourth Edition para 90
[3] Halsbury Laws of England, Vol 14, Fourth Edition, para 91
[4] Jerome J. Curtis, ” Reviving The Lost Grant‖ Real Property, Probate And Trust Journal 23, No. 3 (1988) at
pages 535-60
[5] Jerome J. Curtis, “Reviving The Lost Grant‖ Real Property, Probate And Trust Journal 23, No. 3 (1988) at
pages 535-60.
[6] Halsbury Laws of England, Vol 14, Fourth Edition, para 94
[7] Halsbury Laws of England, Vol 14, Fourth Edition, para 94
[8] Attorney General v Horner (No.2) [1913] 2 Ch. 140
[9] Halsbury Laws of England, Vol 14, Fourth Edition, para 96
[10] ILR 19 Madras 485
[11] [1911] A.C. 623
[12] AIR 1937 Cal 245
[13] AIR 1948 PC 25
[14] AIR 1950 PC 56
[15] AIR 1951 SC 247
[16] Halsbury Laws of England, Vol 14, Fourth Edition, para 90
[17] AIR 1953 SC 195
[18] AIR 1955 SC 228
[19] (2002) 3 SCC 258
[20] (2000) 6 SCC 540