J.H Subhiah Judgment-Debtor- v. Govindrao Bhiwaji And Others Decree-Holders-

1. This is a judgment-debtors' appeal from the decision of the learned Civil Judge, Class I, of Chanda dated 9-12-1948 dismissing his objection under Section 47 of the CPC.

2. It appears that the respondents had obtained a decree for Rs. 9,000-0-0 odd against the appellant on 21-10-1947. In execution of that decree they attached the judgment-debtor's property, viz., timber saw mill including band saw, circular saw, engine boilers, and other accessories kept on the nazul land Halka No. 10, tahsil Chanda at Ballarpur, said to belong to the decree-holders themselves. Hence it is stated in the petition of execution that the attached properties do not include the structure and the land which belong to the decree-holders themselves. The attachment was effected as in respect of movable properties. On 16-4-1948 after the attachment had been effected the judgment-debtor made an application to the executing Court for postponement of the sale on certain grounds not material to the controversies raised in the present appeal. Subsequently, on 24-4-1948 the judgment-debtor made an application admitting the attachment of the properties but contending that though the decree-holders had described those properties as movable, in fact the engine and other machinery were attached to the earth and were therefore immovable property. Hence it was further contended that the properties could be sold as immovable properties and their attachment and proposed sale as movables would be irregularities amounting to illegalities. It was also stated that the properties attached were worth about Rs. 40,000-0-0 and the statement of the value by the decree-holders as Rs. 10,000-0-0 odd was a gross understatement. The property was sold ultimately on 25-6-1948 for Rs. 11,100-0-0 and was purchased by the decree-holders themselves. On 30-6-1948 the judgment-debtor made an application under Section 47 of the CPC, attacking the sale on various grounds, but it is only necessary to take notice of the principal ground of attack, viz., that the bulk of the property sold was immovable, that its real value was Rs. 40,000-0-0, and that the sale was null and void on that ground.

3. The judgment-debtor examined a number of witnesses in support of his contentions. The witnesses examined on his behalf have stated that the value of the property sold would be Rs. 30,000-0-0 to Rs. 40,000/0/0, that the wheels of the engine, of the mill were ‘fixed in the ground’, and that the band saw and circular saw and shaft were also ‘studded in the ground with cement.’ In cross-examination the first witness for the judgment-debtor has admitted that the boiler, bands, wheels, and everything could be taken out, and that those things were fixed in the ground for working purposes. Witness No. 4 for the judgment-debtor also admitted in cross-examination that once the boiler of the mill had been removed to another village.

4. In the evidence on behalf of the decree-holders it was stated that the mill had been purchased in 1928–1929 for Rs. 13,000-0-0 and that the same was sold for Rs. 30,000-0-0 to the judgment-debtor in 1943 in a working condition along with stores and accessories worth about Rs. 15,000-0-0. It was also stated that the boiler was then (at the time of the evidence) in a damaged condition. At the request of the judgment-debtor the Court made a local inspection and recorded a note of that inspection on 17-10-1948. The material portion of the note is in these terms:

“The boiler attached in this case has four wheels. These wheels are not actually embedded in the earth but some earth has been raised over the wheels with the object that wheels may not move. There is not a masonry foundation for the working of the shaft. The various saws were not to be seen but the places where they were fixed were shown to me.”

5. On hearing the evidence of the parties the Court below has held that the properties attached and sold had been rightly treated as movable property and that there was no irregularity or illegality in the sale proceedings. The Court therefore dismissed the judgment-debtor's objection. Hence this appeal.

6. The only question in controversy between the parties in this appeal is whether the Court below was right in holding that the properties attached were movable and not immovable properties. In the absence of a definition of ‘immovable property’ in the Code of Civil Procedure reference has been made to the definition contained in the General Clauses Act (10 of 1897). The Act does not purport to give an exhaustive definition of ‘immovable property’, but says that

“‘immovable property’ shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth.”

7. The Transfer of Property Act does not also contain in this connexion a helpful definition of immovable property except saying that it ‘does not include standing timber, growing crops, or grass.’ The phrase ‘attached to the earth’ according to the definition in the Transfer of Property Act means

“(a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.”

8. In — ‘Meghraj v. Krishna Chandra’, AIR 1924 All 365 (A) a Division Bench of the Allahabad High Court has interpreted ‘immovable property’ with reference to the definition contained in the General Clauses Act along with, the interpretation of the section of the Transfer of Property Act with reference to the expression ‘attached to the earth’. In that case the learned Judges had to discuss the question whether machinery for bailing cotton was immovable property, and the learned Judges held that in the circumstances of that case it was to be classed as movable and not immovable property. The English law of ‘fixtures’ does-not strictly apply to India, but the classification as immovable property of things attached to the earth bears some analogy to the English law of ‘fixtures’. Under the English law, generally speaking, whatever is annexed to the freehold becomes part of the realty. But certain principles of English law which distinguish between what is and what is not immovable property as a result of attachment or annexation to land may be referred to with advantage in this connexion. In the leading case of — ‘Holland v. Hodgson’, (1872) LR 7 CP 328 at p. 334 (B) Blackburn J. made the following observations:

“There is no doubt that the general maxim of the law is, that what is annexed to the land, becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation. When the article in question is no further attached to the land, then (sic) by its own weight it is generally to be considered a mere chattel; see — ‘Wiltshear v. Cottrell’, (1853) 1 E1 & B1 674 (C), and the cases there cited. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land; see — D'Eyncourt v. Gregory’, (1867) LR 3 Eq 382 (D). Thus blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder's yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels. On the other hand, an article may be very firmly fixed to the land, and yet the circumstances may be such as to show that it was never intended to be part of the land, and then it does not become part of the land. The anchor of a large ship must be very firmly fixed in the ground in order to bear the strain of the cable, yet no one could suppose that it became part of the land, even though it should chance that the Shipowner was also the owner of the fee of the spot where the anchor was dropped. An anchor similarly fixed in the soil for the purpose of bearing the strain of the chain of a suspension bridge would be part of the land. Perhaps the true rule is, that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to show that it was intended all along to continue a chattel, the onus lying on those who contend, that it is a chattel.”

9. Hence two tests have been laid down to determine the question, viz., (1) the degree or mode of annexation, and (2) the object of annexation. Of the two tests the latter is the more important, and it is said that this is a question which depends upon the particular circumstances of each case. In — ‘Macleod v. Kikabhoy’, 25 Bom 659 (E) Sir Lawrence Jenkins, C.J held upon a consideration of the circumstances of that case that machinery put up by a monthly tenant was not immovable property.

10. Applying these tests to the instant case, the most important circumstance that has to be borne in mind is that the land on which the machinery was erected does not belong to the judgment-debtor. The decree-holders claimed the land to be their property in the execution petition containing the description of the attached property. That claim was never controverted by the judgment-debtor. We must therefore assume for the purposes of this case that the machinery in question was erected by the judgment-debtor either as a licensee or as a temporary tenant. The presumption, therefore, would be that he did not intend the machinery to form part and parcel of the immovable property to which it was attached's for the time being. Otherwise, the position would become rather anomalous. The judgment-debtor by intending to make it a permanent fixture on the land would convert it into immovable property with the result that it would go with the land to which it was permanently attached. It would thus cease to be the property of the judgment-debtor and become attached permanently to the property of the decree-holders. That result could never have been intended by the judgment-debtor, because clearly it would be against his self-interest. Judged from that point of view it is a little surprising that the judgment-debtor is claiming these properties as immovable properties. If they are so adjudged they will form part of the land to which they are said to be permanently attached and cease to be the property of the judgment-debtor.

11. Reliance was placed on behalf of the appellant on the decision of Wilson J. in — ‘Miller v. Brindabun’, 4 Cal 946 (F). But that decision was based on a consideration of the terms of S. 58 of Act 9 of 1850 with reference to the distinction between movable property and chattels real. It was further admitted in that case that they were fixtures within the meaning of the English law that is to say, so annexed to the soil that they could not be severed and removed without substantial disturbance of the soil and a substantial change in the character of the articles themselves.”

12. The facts and circumstances disclosed in the evidence in this case are entirely different from those of the reported case.

13. Reliance was also placed upon a decision of a single Judge of the Allahabad High Court in — ‘Musai Kurmi v. Sub Karan Kurmi’, AIR 1914 All 176 (2) (G). In that case it was held that an iron sugarcane press (‘kolhu’) fastened to the ground is immovable property. That case cannot be used as an authority for the proposition that in every case a ‘kolhu’ must be deemed to be immovable property. That was a decision in a second appeal in which certain findings of fact had been recorded by the lower appellate Court. The facts and circumstances of the present case are more analogous to those of the case decided by Wadsworth J. in — ‘Subramanian Firm v. Chidambaram Servai’, AIR 1940 Mad 527 (H). In that case the learned Judge has pointed out that in order to determine the controversy, regard must be had not I merely to the nature of the attachment by which the engine is fixed to the ground but also to the circumstances in which it came to be fixed and the title of the person in the immovable property to which it was attached. In that case the learned Judge has also distinguished the cases of — ‘Hobson v. Gorringe’, (1897) 1 Ch 182 (I) and ‘Reynolds v. Ashby’, (1904) AC 466 (J) and has pointed out that where the owner of a building installs machinery therein he may be presumed to have intended to make a permanent improvement to the premises which he owned with a view to better utilizing those premises. But where, as in the present case, the machinery is attached to land which is the property of somebody else and which is only in the temporary occupation of the owner of the machinery the presumption is all the other way.

14. Another circumstance which may be referred to in this connexion is the fact that there was no registered instrument evidencing the purchase by the appellant of the machinery in question from the decree-holders themselves. It has been admitted by the decree-holders that in 1943 they sold the machinery in question to the judgment-debtor for Rs. 30,000-0-0. The parties treated the transaction as one relating to movable property and therefore did not thinks, it necessary to have a registered document to support the transaction. Apparently, the transaction in 1943, even as the sale in question in the present instance, related only to the machinery as detached from the land to which it had been temporarily attached. On both the occasions the owners of the land did not intend to deal with the land itself. As already indicated, in the present instance the decree-holders themselves have made it clear during the execution proceedings that the machinery has to be sold as detached from the land to which it is attached. They were anxious to make it clear in order to obviate the danger of any third party auction-purchaser claiming to have purchased the machinery as being permanently attached to the land. The decree-holders took the precaution of safeguarding their interest in the immovable property, viz., to the nazul land on which the machinery stood. Hence, in all the circumstances of this case there is no doubt that the executing Court was dealing with movable property and that therefore the sale impugned in this case was not vitiated by any irregularity or illegality. It must therefore be held that there is no merit in this appeal. It is accordingly dismissed with costs. Hearing fee Rs. 100/-.

B/G.M.J

15. Appeal dismissed.