• Property access dispute

My mother got share from her parents.It was a closed WILL

2 acres property divided into 2 .The other share(including house) was for elder sister of my mother.

Before death of my grand mother she asked daughters to take the furniture and other miscellanious things  and all equally and they came there to divide it unfortunately due to some other issues it could n't that day.

After a few days grand mother died.After a month my mother asked the furniture and other things they planned to divide when my grand mother was alive.But mother's sister not agreed and she told it is not deserved since all those things are mentioned for her alone in the WILL.

(It was clear that my grand parents were not intentionally did that but the WRITER of WILL included it )

We have no documents to prove it that they not intentionally given to her)

I am coming to my actual problem.

My mother got 1 acre as share and other 1 acre and house for her sister.The 2 acre has a common path from 

Main road that is not mentioned in the WILL.but the path ends in the other share(my mother's sister) so legally we have no way or path to my mother's share.We were planning to construct a home there and we contacted the Bank for a loan but since we have no legal access to above mentioned property they denied it.

My mother asked her to give a legal persmission and several relatives contacted for the same but she is not 

ready to give any access.We are ready to pay for the path .Half cent is enough to get a legal access to 

the property.Since last 8 years we are expecting the path or access but they not constructed any wall or fence to deny access.


Can you give me a legal advice ? Is there any way to contact other than court(it will take seveal years to get a solution)


Any other authority for an immediate result?
Asked 1 year ago in Property Law from Trivandrum, Kerala
Religion: Hindu
1) your aunt cannot deny your mother access to her land through the pathway 

2) if she refuses to give access your mother has to move court and claim easemenary right of necessity as that is only pathway to access her land 

3) also seek an injunction restraining the aunt from denying her access through the pathway to her land 
Ajay Sethi
Advocate, Mumbai
23354 Answers
1222 Consultations
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1) Section 13 of the Indian Easements Act deals with easement of necessity An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of necessity, if he has any other means of access to his land however more inconvenient it may be than be passing over his neighbours

2)  under section 35 of easement act you can obtain permanent injunction restraining your aunt from obstructing your right of passage . pending hearing and final disposal of suit you can claim interim reliefs .
Ajay Sethi
Advocate, Mumbai
23354 Answers
1222 Consultations
5.0 on 5.0
1) from facts stated by you it appears that there is common pathway from main road to your sister property . Your sister is denying you access from her property . Hence you need injunction against your sister 

2) if other owner is denying you access you can seek right of way . It is not necessary that your grandmother should have purchased the right of way 
Ajay Sethi
Advocate, Mumbai
23354 Answers
1222 Consultations
5.0 on 5.0
Without way or path to access the property  it would be meaningless.  That is why law has provided for easement rights.  An easement is a right to use another's property. It is a right, which the owner of a particular land enjoys over an adjacent property, which he does not possess. It is the right over a property belonging to someone else and not to the person claiming easement. In fact, whether he likes it or not, it is a burden he is forced to bear by grant, custom, or by prescription. An easement can be acquired by grant. The deed may be separate or the grant may be included in a deed relating to the dominant heritage. Prescription means getting a right by continuous assertion of the right, which has been in use for a long period of time. Easement by virtue of custom is a legal right acquired by the power of law through continuous use of a land over a long period of time. Therefore, the right of way continues to exist by grant, prescription or by virtue of custom. 

One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.
 

Therefore your mother is entitled for easement rights under section 13 of the Indian Easements Act 1882 and also can file a suit claiming this relief as well as an application for injunction on the same lines under section 35 of the same Act. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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1. Your mother can file a lawsuit for the declaration of her easementary right over the path which falls in the property of her sister but which she requires to access her property. If your mother can prove that she has no other path to access her property then she can maintain her right to easement on the path which falls in the property of her sister.

2. The legal remedy of your mother is only before a court of law and no other authority.

3. Engage a lawyer to seek injunction. There is nothing else you are required to do.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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