Right of burial of the dead claimed by a community is a customary right and not easement

Kerala High Court: In an appeal filed against a decision of the trial court which declared that the people belonging to the Sambava community had successfully established that burial of dead bodies in the property under question was their customary right, a Single Judge Bench of K. Ramakrishnan, J. upheld the lower court’s decision. In the suit before the lower court, the appellant had contended that the property belonging to him was being used for burial grounds without the existence of any right and sought for injunction. The respondents contended that the aforesaid property was being used as a burial ground to bury the dead bodies of the members of the Sambava community of that locality since time immemorial and they had subsequently acquired a customary right for the same.

The issues before the Court were whether the respondents herein had successfully established the presence of ingredients that grant customary easement over a property and whether the lower court was justified in declaring such usage of property to be a custom without considering the question of unreasonableness. The Court, relying on a plethora of previous decisions with respect to both the issues established that the right to use a portion of land as burial ground by persons belonging to a community in a locality (instead of being claimed by a definite person) is a customary right and not easement and that a practice to be recognized as a custom “should be immemorial in origin, certain and reasonable in nature and continuous in use.”

Basing the decision on the examination of two Commissioners, reports submitted by an executive officer and enquiries made by the District Colletor, the Court affirmed the decision of the lower court that the respondents had a customary right over the property for the purpose of burying their dead as a customary right. [Devassykutty v. Ayyappan, 2017 SCC OnLine Ker 8164, decided on 21.06.2017]

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