Report No. 70
6.11. Growing crops.-
Under the English law, where the owner of the soil sells what is growing on land, whether natural produce or fructus industriales, (the fruit of human industry), on the terms that he is to sever them from the land and deliver them to the purchaser, the latter acquires no interest in the soil1. The section in our Act would yield the same result. But the Indian law makes no distinction, between what are known as "emblements" in English law, i.e., crops which are the annual results of agricultural labour, and other crops, i.e., grass and clover which do not repay within the year the labour by which they are produced2.
Consequently, "growing crops" would, in India, include not only the seeds or products of the harvest in corn, but also all vegetable growths, whether in the form of fruit, leaf, bark or roots, which have no existence apart from their produce, as distinguished from trees and shrubs which have a recognised existence apart from any produce which they may bear. As such, pan creepers would be included in the term, though the creepers are uprooted not annually but at the end of the third year3.
1. Washbourne v. Burrows, (1847) 10 LJ Exch 266: 1 Exch 107, cited by Gour.
3. Atmaram v. Doma, 11 CPLR 87, cited by Gour.
Since the expression "attached to the earth" is an important element of the concept of immovable property, it may be considered in some detail. The position as to fixtures has been discussed at some length in a Madras case1. It was pointed out that immovable property is defined at least in three Indian enactments-the General Clauses Act, the Registration Act and the Transfer of Property Act. The first two are not of much assistance, for they merely say that 'immovable property includes things attached to the earth or permanently fastened to anything attached to earth. They give no guidance as to what is meant by 'attached' or 'permanently fastened'.
The Transfer of Property Act, by section 3, describes what is meant by 'attached to the earth', namely-(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. Broadly speaking, the degree, manner, extent and strength of attachment of the chattel to the earth or building, are the main features to be regarded.
The attachment should be such as to partake of the character of the attachment of the trees or shrubs rooted to the earth, or walls or buildings imbedded in that sense, the further test is whether, such an attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached. Even here, although there may be an attachment to the earth, as contemplated by the first two aspects in the description of 'attached', still, if the attachment is a necessary requisite and that is the manner by which the movable property is or can be enjoyed or worked, it may be open to .question whether because of its fixture, though permanently, in the qualified sense, it can ipso facto or ipso jure be regarded as immoveable property2.
1. Perumal v. Ramaswami, AIR 1969 Mad 346.
6.13. Incidental fixtures.-
Besides the erections imbedded in the earth, the clause would not exclude other fixtures such as machinery and the building accessory thereto, being erected to cover and protect it1. With regard to buildings and trade-fixtures, the general rule is that in respect of whatever has been annexed to the land, for the purpose of its better enjoyment, the intention must clearly be presumed to be to annex the erection to the property in the land, but the nature of the annexation may be such as to show that the intention was to annex it only temporarily, in which case, it may be detached and removed from the corpus2.
The question, again, is a question of intention3, but the degree and nature of the annexation is an important element for consideration; for, where a chattel is so annexed that it cannot be removed without great damage to the land, it affords a strong ground for thinking that it was intended to be annexed in perpetuity to the land. Of course, no such presumption is possible where the value of the fixture is far in excess of the land upon which it was erected, or where by custom or contract a different intention is indicated.
1. See per Lord Fitzgerald in Wake v. Hall, 8 App Cas 195 (216); o.a. from Wake v. Hall, 7 QBD 295.
2. Per Lord Blackburn in Wake v. Hall, 8 App Cas 195 (204); o.a. from Wake v. Hall, 7 QBD 295.
3. Lancaster v. Eve, LR 3 Exch 257 (260). The intention may be rebutted by circumstances pointing to the contrary-ib., p. 260. Subramaniam Chettiar v. Chidambaram Servai, AIR 1950 Mad 527.
6.13A. Comparison with English law.-
The English law as to fixtures is based on the maxis quicquid plantatur solo, solo credit1-2 as to trees, and quicquid inaedificatur solo, solo credit as to buildings, and the application of these maxims is varied by a mass of exceptions in favour of a tenant and in a favour of trade fixtures. The term fixture has no precise meaning in English Law, and is not found in Termes de la Ley3 but it is generally applied to something annexed to the freehold.
The classification in the Act as immoveable property of things attached to the earth bears some analogy to the English Law of fixtures, but the maxims on which the English law is founded do not generally apply in India.
Long before the Transfer of Property Act was enacted Para Manisk's case4(s) settled that it was the common law of India that buildings and other improvements do not by the mere accident of their attachment to the soil become the property of the owner of the soil. The general rule laid down by a Full Bench of the Calcutta High Court in that case was as follows:-
"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 or 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 done by the builder during the continuance of any state he may possess."
1. i.e., whatever is planted in the soil falls into, or becomes part of the soil.
2. i.e., whatever is built in the soil falls into, or becomes part of the soil. Another reading substitutes fixtures (is fixed to) for inaedifictor (is built in).
3. Per Campbell, C.J. in Wiltshear v. Cottrell, (1853) 1 El&Bl 674 (682).
4. Thakoor Chunder v. Ramdhone, (1866) 6 WR 228: Beng LR Supp Vol. 595; approved and followed in Narayan Das Khettry v. Jatindranath, (1927) 54 Cal 669: 54 IA 218: 102 IC 198: AIR 1927 PC 135; AIR 1933 Oudh 468; AIR 1967 Ker 22.
6.13B. The Mohammedan Law is the same.1
Our Legislature has departed from the English Law of fixtures in section 2 of the Mesne Profits and Improvements Act 11 of 1855, corresponding to section 51 of this Act2 and again in section 108(h) of this Act dealing with the lessee's right to remove fixtures.3 The Act inclines rather to the law recognised by Hindu and Mohammedan Jurisprudence .4
1. Secretary of the State v. Charlesworth Pilling & Co., (1902) Born 1 IA 121.
2. Ismail Kani Rowthan v. Hazarali Sahib, (1903) 27 Mad 211.
3. Chaturbhuj v. Bonnett, (1905) 29 Born 323; Beni Ram v. Kundal Lal, (189) 21 All 496; Sitabai v. Sambhu, (1914) 38 Born 716: 28 IC 796.
4. Hafiz Shaikh v. Rashik Lal Ghose, (1910) 37 Cal 815: 6 LC 796.
6.14. Considerations applied by English Courts in regard to fixtures.-
As is clear from the above, different considerations have been applied by English Courts in deciding whether given things amounted to fixtures, in the sense in which he term is understood in the law relating to real property.1 Nevertheless, reference may be made to two of the English cases. In Leigh v. Taylor, 1902 AC 187 the House of Lords held that valuable tapestries affixed by a tenant for life to the walls of a house for the purpose of ornament and the better enjoyment of them, were not fixtures and therefore did not pass with the freehold to the remainder man.
The House of Lords was of the view that the tapestries formed part of the personal estate of the tenant for life. The speech of Lord Halsbury shows that questions like this cannot always be answered, in the nature of things with arithmetical accuracy, but certain discernible tests, as aids in deciding the question, are well-established, as, for instance, if something is made part of the house, it must necessarily go to the heir, because the house goes to the heir and it is part of the house.
So, where something is attached in some form to the walls of a house, nevertheless, having regard to the nature of the thing itself, and the purpose of its being placed there, it is not intended to form part of the reality, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment. Though these observations were in the context of fixtures, and we are conscious that English law relating to fixtures cannot be applied without qualifications and in their entirety to conditions in this country, the observations of Lord Halsbury certainly are of weight and point to the correct approach to questions of this kind.
The House of Lord, again, had to consider in Reynolds v. Ashby & Son, 1904 AC 466 whether machinery attached to freehold was a fixture. There the machines affixed to concrete beds in the floor of the factory by bolts and nuts, could have been removed without injury to the building or the beds. In this case too Lord Haisbury was one of the Law Lords who decided it, but with this difference, here the House considered that as the machines were part of a factory, which was the subject-matter of a lease, the attachment of the machines to the earth in that manner should be regarded as a fixture.
1. Perumal v. Ramaswami, AIR 1969 Mad 346 (349).
6.15. English conflict of laws and movable property.-
We have mentioned above that the distinction between immovable and movable property is not important in England in internal law. But even in England, the distinction becomes material when a question of conflict of laws arises.
When English courts have to determine rights between domiciled Englishmen and persons domiciled in other countries which do not adopt the English division into real and personal property, the division into immovable and movable property becomes relevant because, in such case,1 out of international comity and in order to arrive at a common basis on which to determine questions between the inhabitants of two countries living under different systems of jurisprudence, English courts recognise and act on a division otherwise unknown to English law into movable and immovable property.
It is for this reason that a lease hold interest in English land, though classified as personal property for the purposes of English internal law, is regarded as immovable property for the purposes of private international law in England.2-3
1. Hoyles (in re:), (1911) 1 Chancery 179 (185) (Farwell, L.J.).
2. Greke v. Lord Carbery, 1873 LR 16 Equity 461.
3. Duncan v. Lawson, (1889) 41 Ch D 394.
6.16. Immovables sometimes regarded as movable.-
Rights over immovable are determined by the lex situs. Rights over movables are not necessarily governed by that law. If, therefore, the subject-matter of ownership is regarded as an immovable by one system of law but as a movable by another, to which law is the decision left? This question must also arise. The answer given by English law and by most foreign legal systems is the lex situs. If the lex situs attributes the quality of movability or of immovability to the object in question, the English court which is seised of the matter must also proceed on that basis.1
1. Johnstone v. Baker, (1817) 4 Mad 474, note Hoyles (in re:), (1910) 2 Ch 333 (341): (1911) 1 Cr 179.
6.17. The first task of the1 court in conflict of laws case, when required to decide some question of a proprietary or possessory nature, is to decided whether the res litigiese is a movable or an immovable. Upon this preliminary decision depends the legal system that will be applicable to the case. Rights over immovables are determined by the lex situs: rights over movables are not necessarily governed by that law, as already stated. The classic situation is the transfer of property by succession, land going to the heirs selected by the law of the site while goods go according to the law of the domicile of the deceased2.
1. Cheshire Private International Law, (1970), p. 169.
2. Clarence Smith Classification by Site in Conflict of Laws, (1963) 26 Modem Law Review 16.
6.18. In one article1 pertaining to the conflict of laws, it is stated that immovable right means any right of ownership, occupation or drawing profit from any site, the site being taken as one with all things regarded by the law of that site as annexed to it for the purpose in hand, and it has been added that this expression probably means also any right which is creature of positive law and is so classified (classified as an immovable right) by its creator. Movable right could then mean other right.
1. Clarence Smith Classification by Site in Conflict of Laws, (1963) 26 Modern Law Review 16, 23.
Reverting to the Act, we may state that the definition of "immovable property" in the Act, merely provides that it does not include standing timber, grown crops or grass. This definition is obviously not self-contained, and must be read with the definition in the General Clauses Act, 1897, which1, by virtue of section 3(26) of that Act read with section 4, applies to the Transfer of Property Act. In our opinion, it would be convenient if the definition is made self-contained, by combining2 what is enacted in the General Clauses Act with what is enacted in the Transfer of Property Act-at least to the extent to which the two can stand together.
1. See para. 6.6, supra.
2. Compare para. 6.7, supra.
This does not, of course, mean that such a combination will avoid all disputes for the future. But the citizen will, at least, be able to locate from one place the scope of the expression. It will also lend some utility to the elaborate definition of the expression "attached to the earth" given in the Transfer of Property Act.
At present, the importance of the expression "attached to the earth" is not readily perceived, since the fact that the expression occurs in the definition of 'immovable property' in the General Clauses Act-Which also applies to the Transfer of Property Act-does not appear in the forefront. It will, therefore, be an improvement if the definition of 'immovable property is made self-contained as suggested above. We recommend accordingly.