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Mammunhi v. Kunhibi .
Judgment Summary — M.S. Menon, J.
Factual and Procedural Background
This appeal arises from O.S. No. 46 of 1952 in the court of the District Munsiff of Kasaragod. The plaintiff sued for recovery of possession of the land described in the Schedule to the plaint, including the house thereon, and for mesne profits at Rs. 150 per year from the date of the plaint until recovery.
Both the trial court and the District Judge of South Kanara (in A.S. No. 153 of 1954, the appeal from the trial court) held that the land belonged to the plaintiff and that she was entitled to recover possession with mesne profits, the courts fixing mesne profits at Rs. 75 per year. Both courts also accepted that the house on the property had been constructed by the defendant using his own funds.
The narrow question before this Court was whether the defendant (the appellant) had a right to remove the materials of the house if the plaintiff refused to pay him the value of the house. The trial court had awarded the defendant compensation in the sum of Rs. 2,561-9-0. The lower appellate court reversed on that point, holding that the defendant was not entitled to either the value of the house or to dismantle it.
Additional material facts in the record: the defendant and plaintiff were married circa 1922, divorced in 1951; the house was constructed soon after marriage and served as the matrimonial home for over 28 years; the construction was undertaken with the plaintiff's consent.
Legal Issues Presented
- Whether the defendant, who constructed the house on the plaintiff's land with the plaintiff's consent, is entitled to remove the materials of the house if the plaintiff refuses to pay him its value.
- Whether the defendant is entitled to compensation for the value of the house (as found by the trial court at Rs. 2,561-9-0) despite the plaintiff being the owner of the land.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sirkar v. Mahadeva Iyer, 1953 KLT 599 (AIR 1953 Trav-Co 349) | Authority that the maxim "what is affixed to the soil belongs to the soil" is not part of the general law of India. | Relied on to support the view that the English maxim (quicquid plantatur solo, solo cedit) does not apply in India and thus cannot automatically vest ownership of the house in the landowner. |
| Vallabdas Narainji v. Development Officer, Bandra (AIR 1929 PC 163) | Authority (Privy Council) holding that "what is affixed to the soil belongs to the soil" does not represent the law of India. | Quoted to reject application of the English maxim in Indian cases and to justify applying Indian authorities that allow builders (not mere trespassers) to remove improvements or claim compensation. |
| Thakoor Chunder Poramanick v. Ramdhone Bhuttacharjee, 6 Suth WR 228 (FB) | Statement by Sir Barnes Peacock that there is no absolute rule in Indian law that whatever is affixed to the soil becomes part of it; builders in possession under a bona fide title/claim may remove improvements or claim compensation. | Quoted with approval as stating the Indian rule that an improving party who is not a mere trespasser may remove materials or obtain compensation; the Court applied that principle to the facts where the defendant had consent and was not a trespasser. |
| Narayan Das v. Jatindra Nath (AIR 1927 PC 135) | Privy Council approval of the view that the English maxim is not generally applicable in India. | Used as supporting authority showing long-standing acceptance of the proposition that Indian law differs from the English maxim. |
| Gobind Purmanick v. Gooroo Churn Dutt, 3 Suth WR 71 | Reported statement in which a defendant who was a trespasser was "at liberty to remove the bricks of his house." (Different view from Sir Barnes Peacock's general statement regarding trespassers.) | Noted by the Court as a different view in the authorities; observed that the Privy Council had not overruled that decision and that the broader question of a trespasser's rights was not necessary to decide in the present case. |
| Ramsden v. Dyson, 1866 LR 1 H.L. 129 | English doctrine based on estoppel by acquiescence: if a stranger builds believing land to be his and the true owner knows and remains passive, equity may prevent the owner from asserting title. | Distinguished from Indian authorities. The Court held Ramsden's principle (estoppel by acquiescence) is not directly applicable because in the present case the defendant knew the land belonged to the plaintiff (so the Ramsden requirements are not satisfied). |
| Narayan v. Bholagir Guru Mangir, 6 Bom HCR AC 80 | Statement that Indian doctrine is that a party building on another's land should be allowed to remove the materials. | Quoted and followed as an example of Indian authority supporting the right of the builder (not a trespasser) to remove materials; the Court applied this line of authority to vindicate the defendant's right to removal or compensation. |
| Premji Jivan v. Haji Cassum Jama Ahmed, ILR 20 Bom 298 | Followed the Indian doctrine allowing removal of improvements by the builder. | Cited as part of the chain of Indian authorities that support the builder's right to removal or compensation. |
| Abdul Razak v. Nandlal Sheolal (AIR 1938 Nag 506) | Another authority following the Indian doctrine permitting removal or compensation for improvements. | Cited as part of consistent Indian precedent supporting the Court's conclusion that the builder may remove improvements or claim compensation. |
| K.K. Das v. Amina Khatun Bibi (AIR 1940 Cal 356) | Decision relied on by the lower appellate court stating, in a husband-wife context where the husband constructed a building on the wife's land knowing it to be hers, that "the husband never intends in such a case to reserve any right in the structures." | Not accepted as establishing a uniform presumption by this Court. The Court observed that the question is not intention to reserve rights but whether any transfer (gift or arrangement) or legal process passed the structure to the landowner; absent such facts, the lower appellate court's reliance on this decision was incorrect for the present case. |
Court's Reasoning and Analysis
The Court proceeded through the following analytical steps, using only the authorities and facts given in the opinion:
- Confirmatory findings from lower courts: the trial court and the District Judge had both correctly found that the land belonged to the plaintiff and that the defendant had constructed the house with his own funds.
- Identification of the precise legal question: whether the defendant has the right to remove the materials of the house if the plaintiff refuses to pay its value.
- Rejection of the automatic application of the English maxim quicquid plantatur solo, solo cedit ("whatever is affixed to the soil belongs to the soil") to Indian law, relying on cited authorities (including Sirkar v. Mahadeva Iyer and Privy Council decisions) that this maxim is not part of general jurisprudence in India.
- Adoption of the Indian rule (as articulated by Sir Barnes Peacock in Thakoor Chunder Poramanick and followed in later decisions) that improvements made on land do not, by mere attachment, automatically become the property of the owner of the soil; where the improver is not a mere trespasser and is in possession under a bona fide title or claim of title, the improver may either remove the materials (restoring the land to its former state) or obtain compensation for the value of the improvement if it remains for the benefit of the landowner. The owner of the land retains the option to take the building or to permit removal.
- Distinction from the English estoppel-by-acquiescence doctrine in Ramsden v. Dyson: that doctrine requires that the builder honestly supposes the land to be his and that the true owner knows of and passively acquiesces in that mistake. In the present case, the defendant knew the land belonged to the plaintiff, so Ramsden's equitable basis does not apply.
- Consideration of conflicting authorities on the rights of trespassers (e.g., Gobind Purmanick), and the Privy Council's omission to decide whether a trespasser may remove or be paid for a structure. The Court held it was unnecessary in this case to decide the rights of a mere trespasser because the defendant had the plaintiff's consent and therefore was not a trespasser.
- Rejection of the lower appellate court's reliance on K.K. Das as creating a blanket presumption that a husband who builds on his wife's land never intends to reserve rights in the structure. Instead, the Court emphasized that the operative question is whether any legal process (gift or arrangement) passed the structure to the landowner; in this case, the plaint disclosed no such transfer.
- Application of the established Indian principle to the facts: because the defendant constructed the house with the plaintiff's consent and was not a mere trespasser, he was entitled either to have the value paid (as fixed by the trial court) or to remove the materials if payment was not made.
- Practical directions: the trial court's valuation of the house at Rs. 2,561-9-0 was accepted as undisputed; the plaintiff (now deceased — see below) or her legal representatives must pay that sum within nine months to retain the house, failing which the defendant may remove the building and restore the property to its original condition within three months after the nine-month period (or earlier if the plaintiff's representatives inform the defendant they will not pay).
Holding and Implications
Holding: The appeal is allowed. The Court held that the defendant, having constructed the house with the plaintiff's consent and not being a mere trespasser, is entitled either to receive the value of the house (fixed at Rs. 2,561-9-0) or, if that value is not paid by the plaintiff (or her legal representatives) within nine months, to remove the materials of the house and restore the land to its previous condition within three months thereafter (or earlier, upon earlier intimation that compensation will not be paid).
Direct consequences and orders made by the Court:
- The plaintiff (now deceased) has been replaced by her legal representatives on the record; references to the plaintiff must be read as references to her legal representatives.
- If the plaintiff's legal representatives desire to keep the house they must pay Rs. 2,561-9-0 to the defendant within nine months from the date of the judgment.
- If payment is not made within nine months (or earlier intimation is given that they will not pay), the defendant may remove the house and restore the property to its original condition within three months of the expiry of the nine-month period (or earlier if appropriate).
- The trial court's order as regards costs will stand; the parties will bear their respective costs in the lower appellate court; and the appellant (defendant) will have his costs in this Court.
Implications beyond the parties: The Court applied and followed established lines of Indian authority distinguishing English rules and affirming the Indian doctrine that an improver who is not a mere trespasser may remove improvements or claim compensation. The opinion does not purport to lay down a novel principle of law beyond applying those authorities; its practical effect is the resolution of rights between these parties (payment or removal) rather than the creation of a new precedent.
Disposition
APPEAL ALLOWED.
M.S Menon, J.:— The defendant in O.S No. 46 of 1952 of the court of the District Munsiff of Kasaragod is the appellant before us. The suit was for the recovery of possession of the item of property described in the Schedule to the plaint including the house thereon with mesne profits at Rs. 150/- per year from the date of the plaint till the date of recovery.
2. Both the trial court and the District Judge of South. Kanara in the appeal from the judgment of the trial court — A.S No. 153 of 1954 — have held that the land belongs to the plaintiff, and that she is entitled to recover the same with mesne profits at Rs. 75/- per year. There is nothing on record to show that these conclusions are in any way incorrect. The courts below have also come to the conclusion—we think quite correctly—that the house on the property was constructed by the defendant with his own funds. The question for determination is whether he has the right to remove the materials of the house in case he plaintiff is not willing to pay him its value.
3. The trial court held that the defendant is entitled to compensation and fixed it at Rs. 2,561-9-0. The appellate court said that “the defendant is not) entitled to get the value of the house”, and:
“Nor is there any equity which justifies his being allowed to dismantle the house and take away the materials.”
4. The defendant married the plaintiff sometime in 1922. He divorced her in 1951, some 12 months prior to the date of the suit. The house was constructed soon after the marriage, and was their matrimonial home for over 28 years. There can be no doubt that the construction was effected with the consent of the plaintiff.
5. The right to compensation or to remove the materials is an attribute of ownership. As to whom the house should belong was not the subject of any agreement either prior to its construction or at any time thereafter. The question of ownership has hence to be resolved on the basis of the general law applicable to the subject.
6. Quicquid plantatur solo, solo cedit — whatever is affixed to the soil belongs to the soil—is a rule of considerable antiquity and if it applies, the plaintiff will have to be considered as the owner of the house and the defendant's claim must fail. Under the maxim “whatever is affixed to the soil becomes, in contemplation of law, a part of it and is subjected to the same rights of property as the soil itself”. (Broom's Legal Maxims, Tenth Edition, Page 262).
7. The maxim, however, has to be considered as inapplicable to this country. As stated in Sirkar v. Mahadeva Iyer, 1953 KLT 599 : (AIR 1953 Trav-Co. 349):
“What is affixed to the soil belongs to the soil is not a maxim of general jurisprudence and there is the authority of the Privy Council — Vallabdas Narainji v. Development Officer, Bandra, AIR 1929 PC 163 — to hold that it does not represent the law of India.”
8. In Thakoor Chunder Poramanick v. Ramdhone Bhuttacharjee, 6 Suth WR 228 (FB), Sir Barnes Peacock said:
“We have not been able to find in the laws or customs of this country any traces or the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself.”
9. The Privy Council cited the statement with approval in Narayan Das v. Jatindra Nath, AIR 1927 PC 135 and added that it “seems to have been accepted for many years as a correct pronouncement”.
10. In 6 Suth WR 228 (FB) Sir Barnes Peacock also said:
“We think it clear that, according to the usages and customs of this country, buildings and other such improvements made on the land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil; and we think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil—the option of taking the building, or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess.”
11. Both the passages from the judgment of Sir Barnes Peacock were quoted with approval in AIR 1929 PC 163.
12. According to the second of the two passages a “mere trespasser” is not entitled to relief. The view taken in Gobind Purmanick v. Gooroo Churn Dutt, 3 Suth WR 71, a case referred to in 6 Suth WR 228 (FB) and in no way overruled as pointed out by Privy Council in AIR 1929 PC 163 was different as is clear from the statement therein that the defendant, a trespasser, was “at liberty to remove the bricks of his house.”
13. In AIR 1929 PC 163 counsel for the respondents whilst contending that his clients could not be considered “mere trespassers” also submitted “that, even if it were so, once it was admitted that the English maxim did not apply, the logical consequence followed that in any case of trespass by building on the lands of another, such trespasser had a right to remove the structure or be paid the value thereof by the owner”. The Board did not deal with the matter. Their Lordships said that they did not think it necessary “to give a decision upon this far-reaching contention”.
14. In this case also it is unnecessary to decide the question. The defendant constructed the building on the plaintiff's land with her consent. He was no trespasser, absolute or qualified.
15. Our attention has been drawn, to the line of cases headed by Ramsden v. Dyson, 1866 LR 1 H.L 129 and to S. 51 of the Transfer of Property Act, 1882. The principle behind those decisions and S. 51 are by no means identical. 1866 LR 1 HL 129 is based on the doctrine of estoppel by acquiescence and S. 51 on the equitable maxim that he who seeks equity must do equity.
16. Section 51 deals with improvements made by bona fide holders under defective titles and has an application to the case before us. The principle enunciated in 1866 LR 1 HL 129 is also different as will be clear from the following passage from the decision of Lord Cranworth:
“If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented. But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights”.
17. In the case before us the defendant built the house on the land of the plaintiff knowing it to be the plaintiff's and not supposing it to be his own. In Narayan v. Bholagir Guru Mangir, 6 Bom HCR AC 80 Couch, C.J, quoted the passage from 1866 LR 1 HL 129 reproduced in the last paragraph, and said:
“We cannot, however, apply to cases arising in India the doctrine of the English law as to buildings, viz., that they should belong to the owner of the land. The only doctrine which we can apply is the doctrine established in India, that the party so building on another's land should be allowed to remove the materials.”
18. This passage is extracted in AIR 1929 PC 163 and followed in Premji Jivan v. Haji Cassum Jama Ahmed, ILR 20 Bom 298 and Abdul Razak v. Nandlal Sheolal. AIR 1938 Nag 506.
19. Section 60 of the Indian Easements Act, 1882, provides:
“A licence may be revoked by the granter, unless—
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution.”
20. The first exception is based on the principle that one cannot derogate from his own grant and the second on the principle of estoppel by acquiescence. No contention based on the section has been urged before us, and the section does not arise for consideration.
21. The decision relied an by the lower appellate court for coming to the conclusion that it did is K.K Das v. Amina Khatun Bibi, AIR 1940 Cal 356. In that case the husband constructed a building on his wife's land knowing it to be his wife's. The Court said:
“The husband never intends in such a case to reserve any right in the structures”.
22. We do not understand their Lordships as having been laid down a uniform or unvarying presumption applicable to all such cases.
23. Quite apart from this, in the absence of the maxim “whatever is affixed to the soil belongs to the soil” the question is not whether the husband intends to “reserve” any right in the structure but whether the structure passed to the wife by any process known to law, for example, by a gift or in pursuance of the arrangement under which it was put up. The plaint does not disclose any such case.
24. In these circumstances we must hold that the lower appellate court was wrong in its conclusion that the defendant was not entitled to remove the materials of the house, if the plaintiff was not prepared to pay him compensation for the same. The option of taking the building or permitting removal of the material is, of course, with the owner of the land as pointed out by 6 Suth WR 228 (FB).
25. The value of the house has been fixed at Rs. 2,561-9-0. There is no dispute as regards this figure. The plaintiff will pay the amount to the defendant within nine months from this date, if she desires to keep the house. In case she does not so desire the defendant will be at liberty to remove the building and restore the property to its original condition within three months of the expiry of the period of nine months or earlier intimation that the plaintiff does not desire to keep the house and pay compensation.
26. The plaintiff is now no more. Her legal representatives have been brought on, record, and references to her must be construed as references to her legal representatives. The appeal is allowed in the manner and to the extent indicated above. The trial court's order as regards costs will stand. The parties will bear their respective costs in the lower appellate Court. The appellant will have his costs in this court.
CE/R.G.D
27. Appeal allowed.
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