DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
DOCTRINE OF FIXTURES

SUBJECT
TRANSFER OF PROPERTY ACT

NAME OF THE FACULTY

Mr. P.Jogi Naidu

Name of the Candidate: Bhargav Sarma

Roll No. 2016025
Semester: 4th semester
 ACKNOWLEDGEMENT

I, Bhargav Sarma would like to expres my hartfelt gratitude to Mr.P.Jogi Naidu for
allotting me this topic Transfer of property act through which I have learnt considerate
number of issues. I also extend my thanks for his guidance throughout the project,
which otherwise would have not been possible at all.

BHARGAV SARMA
TRANSFER OF PROPERTY ACT

INTRODUCTION

The maxim quicquid plantatur solo, solo cedit (whatever is attached to the land becomes part
of the land) is universally acclaimed to be the foundation of the modern law of fixtures. The
maxim has its origins in Roman law and the concept of dominium (that is, absolute
ownership) over both chattels and land. Although much of Roman law was unsuited to a
feudal system which rejected the notion of dominium , the maxim was adopted by the
common law during the medieval period. Initially, the common law applied it strictly with
little consideration given to the rights of non-landowners. Gradually the unbending rule that
everything which is affixed to the freehold becomes part of the freehold was adapted in order
to suit the exigencies of modern life. In particular, public policy required a number of
exceptions and qualifications to be created in furtherance of trade, manufacture and
agriculture. Hence, the rule was seriously undermined and the law of fixtures assumed new
proportions, largely freed from its origins.

In Indian law movable property sometimes assumes for legal purposes the 2. Jagdkh v.
Mangal Pandey Indian legal system character of immovable property. In English law also
chattels are sometimes treated as real property. They are then called fixtures. In England the
general rule is that whatever is planted on (or built in) the soil belongs to the soil. When a
chattel is annexed to the soil and so becomes a fixture, the person who was owner of it when
it was a chattel loses his property in it for it immediately vests in the owner of the soil. Thus a
house becomes part of the land on which it stands and anything affixed to the building is by
common law treated as an addition to the property of the owner. In Indian law also things
imbedded in the earth or attached to what is so imbedded for the permanent beneficial
enjoyment of that to which it is attached are regarded as immovable property. When a
property is treated as fixtures any dealing with the property to be valid should conform to the
legal requirements laid down for such dealings in relation to immovable property. Hence we
can see the movable property or chattels, to use the expression familiar in England, when
attached to buildings, sometimes become immovable property and are then called fixtures.
Thus machinery, ceiling fans, doors and windows, etc., can become fixtures. Suppose A sells
his house. The fixtures appertaining to the house pass along with the house and need not be
separately mentioned in the sale deed. They are treated as part of the immovable property
sold. So A cannot remove the doors and ceiling fans after he has sold the house. He may,
however, remove the coatstands; boxes and bookracks for these are not fixtures and are only
movable property.

CASE ANALYSIS-1

Name of the Case: Mofiz Sheikh vs Rasik Lal Ghbosh And Ors.

CITATION: 6 Ind Cas 796

Brief Facts: The plaintiffs opposite party commenced this action for recovery of damages on
the allegation that the defendant petitioner had cut and appropriated one jack tree which stood
on his holding. The defendant resisted the claim, inter alia, on the ground that the tree had
been planted by his grandfather after the commencement of the tenancy, and that he was
consequently entitled to cut and appropriate it.

Procedural History: The learned Judge of the Court of Small Causes did not come to any
finding upon this point, but decreed the suit on the ground that as the defendant was not a
cultivator, Section 23 of the Bengal Tenancy Act, 1885, was inapplicable and consequently
the tenant was not entitled to cut and appropriate the tree in the absence of any evidence to
establish a contractual or a customary right to that effect. The Present suit by Calcutta High
Court has been invited by the defendant to set aside this judgment on the ground that, as the
tree was planted by the tenant and the holding was of a non-agricultural character, he was
entitled to cut and appropriate the same.

Issues: 1. Whether the defendant was entitled to the ancestral tree planted by his father which
was planted before the enactment of the Transfer of Property Act, 1882?

2. Whether Section 23 of Bengal Tenancy Act is applicable in this case?

Observations: In the first place, it is clear that the provisions of the Bengal Tenancy Act
have no application, because, as found by the Judge in the Court below, the tenancy is neither
agricultural nor horticultural. No useful purpose, therefore, would be served by an
examination of the provisions of Section 23 of that Act.
It cannot be disputed that, under the law of England, the property in trees is vested in the
owner of the inheritance of the land upon which they grow, on the principle that the property
in trees or of that which is likely to become timber, is in the landlord Berriman v. Peacock.
On this ground, it has been ruled that a farmer, who raises young fruit trees on the demised
land for filling up the orchards, is not entitled to sell them; but it is otherwise of a nurseryman
by trade who may, if he has planted fruit trees in the way of his trade, remove them, if not of
larger growth than could be dealt with in his trade.

This position is fortified when we remember that neither the Hindu law nor the Muhamadan
law recognized any law of fixtures, as was pointed out by Sir Barnes Peacock, C.J., in the
case of In re Thakoor Chunder Paramanick.

If we look to the ancient Hindu law, we the following texts in the Institutes of find the (Ch.
VI, Verses 20, 21, Sacred Books of the East, Volume 33, page 143):

If a man has built a house on the ground of a stranger and lives in it, paying rent for it, he
may take with him, when he leaves the house, the thatch, the timber, the bricks and other
building materials.

But if he has been residing on the ground of a stranger without paying rent and against that
man's wish, he shall, by no means, take with him on leaving it the thatch and timber.

These texts are quoted as authoritative by Jagannath in his Digest of Hindu Law, who quotes
another text of Narada which explains the reason for the rule: "The grass, wood and bricks,
which are thus removed, belong to him who leaves the ground, provided he paid rent for the
spot, and not otherwise."

The Muhammadan Law, we find the following passage in the Hidayah: "if a person hire
unoccupied land for the purpose of building or planting, it is lawful, since these are purposes
to which land is applied! Afterwards, however, upon the term of the lease expiring, it is
incumbent upon the lessee to remove the Building or trees, and to restore the lind to the lessor
in such a state as may leave him no claim upon it.

Conclusion(Judgement): The Transfer of Property Act came into operation, the English
doctrine of fixtures did not prevail in this country, and that the Transfer of Property Act
substantially reproduced the law on this subject as recognized by Hindu and Muhammadan
Jurisprudence. We must consequently hold that, in the case before us, the tenant did not
exceed his right when he cut down the jack fruit tree, which had been planted on his holding
by one of his ancestors.

The result, therefore, is that this rule is made absolute, and the suit dismissed with costs both
here and in the Court below. We assess the hearing fee in this Court at two gold mohurs.

CASE ANALYSIS-2

TRANSFER OF PROPERTY ACT

Name of the case: A.D. Narayana Sa vs Balaguruswami Nadar And Ors.

CITATION: (1923) 45 MLJ 385.

Brief facts: The plaintiff in this suit A.D. Narayana Sa obtained a simple money decree
against the defendants to whose estate the petitioners Messrs Eraser & Ross have been
appointed Receivers. The decree was for over Rs. 2,69,000 and in execution the property
known as the Distillery Buildings at Vyasarpady was attached and sold. What was sold was
only the Distillery Buildings and the proclamation describes the property to be sold as follws
: "Distillery Buildings, Door No. 3, Brighton Road, Barracks, Peramboor, Madras, bearing
Re-survey Number etc." These buildings were originally used as a distillery by the Nadars
but sometime before the sale the business ceased to be carried on there. One of the stills had
been removed by the Nadars themselves and the property which the Receivers want to
remove consist of pipes, stills and a number of vats.

The application of the Receivers is opposed on the ground that what they want to remove are
fixtures which in law go with the property and which have passed to the auction purchaser.
The contention for the Receivers is that what was sold was only the building and nothing
more and that apart from any question of law about fixtures they are entitled to remove
whatever was put in there for the purpose of the business by the Nadars. It is also contended
that the law of fixtures does not apply to India and that even if it did, the articles sought to be
removed are not fixtures which in law could pass to the purchaser.

Issues: Whether the Defendant was bound under the Doctrine of fixtures?
Observations: So far as the purchase is concerned, it seems to the judge that what was sold
was only the Distillery Buildings. In cases where business is carried on in the premises and
the sale is only of the premises and not of the business as a going concern or the premises
together with the fixtures or machinery, prima facie all that the purchaser is entitled to are the
buildings. It can hardly be the intention of the parties when they sell the building alone
without reference to the machinery or the business that the purchaser should get the valuable
machinery in the buildings by calling them fixtures and by claiming to get them under that
head. Even assuming that the plaintiff is entitled to all the fixtures properly so called, I think
it is clear from the evidence of Mr. Barker who was examined as an expert in this case that
the vats and the pipes cannot be fixtures in any sense of the term. As regards the copper stills,
they are 8 ft. in horizontal diameter and 7 ft. in vertical diameter. They are placed upon two
iron rails and they can be removed by pulling 'down the brick and mud wall which is put up
on one side for the purpose of keeping them in position.

CONCLUSION(JUDGEMENT): Applying these tests, it seems to me to be clear that the

object of the Nadars in placing what are known as fixtures in the building was simply to carry
on the business of distillery there. It will be a dangerous doctrine to hold in this country that
plant and machinery brought into a building for the purpose of trade being carried on whether
by the owner or by the mortgagee were so annexed to the building as to make them pass for
fixtures merely because the building is sold either by the owner or by the Court in execution.

Directed that the Receivers do remove the articles referred to in the Judge's Summons. As
regards costs, I direct that the Receivers' taxed costs as between Attorney and client do come
out of the estate and that the purchaser do bear his own costs. Certified. fix the fee of the
expert at Rs. 150.

CASE ANALYSIS 3

Case Name: Hobson vs Horringe

BRIEF FACTS: By a contract in writing dated January 7, 1895, Hobson, thereinafter called
the owner, let to King, a builder, thereinafter called the hirer, the gas engine in question upon
what is known as the hire and purchase system for the purpose of being fixed upon King's
land at Worthing, of which King was the owner in fee, and on which a saw mill had been
erected

This gas engine, as was known to Hobson, was required by King to drive his saw mill, and
the way in which it was to be erected and was in fact erected was as follows:— In the first
place a bed of concrete was prepared in which were embedded two iron plates, out of each of
the four outside corners of which an iron bolt projected upwards in a vertical position, having
a screw at its uppermost end. The base-plate of the engine was fitted with four holes, one at
each outside corner, so that when the engine was placed in position upon the concrete bed the
four bolts projected through the four holes in the base of the engine, and nuts were then
screwed down tightly upon the tops of the bolts, and thus the engine was kept in position and
prevented from rocking and shifting, as it would have done if merely placed upon the
concrete foundation without the aid of the projecting bolts. There was affixed to the engine
when delivered to King a plate called a “hire plate,” bearing the inscription, “This engine is
the property of Wilfred Hobson, 80, Queen Victoria Street, E.C.”
King paid some of the monthly instalments to Hobson and then fell into arrear, and he never
completed the stipulated payments so as to become the owner of the gas engine as a chattel.
By a deed of transfer and further charge dated July 24, 1895, a mortgage debt of 400l.
secured on King's land by a deed dated March 26, 1894, was assigned to the Rev. Mr.
Gorringe, and King and his mortgagee conveyed to him the land in question (together with
the saw mill, engine-house, warehouses, and other building erected thereon, and the fixed
machinery and fixtures) in fee simple to secure the said sum of 400l., and a further advance
of 200l., making a total of 600l., subject to the usual proviso for redemption.
On January 17, 1896, King was adjudicated a bankrupt, and in March, 1896, the mortgagee,
Mr. Gorringe, entered and took possession of the mortgaged premises, together with the gas
engine, which he found in its place as before mentioned

Issues: In determining whether or not a chattel has become a fixture, the intention of the
person affixing it to the soil is material only so far as it can be presumed from the degree and
object of the annexation.

ARGUMENTS: J. Walton, Q.C, and Curtis Price , for the plaintiff. Argue on two points
namely, 1. This gas engine never became a fixture; consequently it never became part of
King's freehold, and never passed to the defendant, his mortgagee. In the first place, it was
never physically attached to the soil to such an extent as to make it a fixture.

2.Secondly, even if it was actually annexed to the soil, the intention of the parties must be
regarded, and if it was not their intention that it should become a fixture, it remained a chattel
notwithstanding such annexation. The test whether a thing is a fixture or not is not merely
how firmly it is affixed to the soil. It depends upon intention. A thing may not be physically
affixed to the soil otherwise than by its own weight, and may yet be a fixture, e.g., a door on
its hinges; and, conversely, a thing may be firmly fastened to the soil and remain a chattel,

OBSERVATIONS: It seems to us that the true view of the hiring and purchase agreement,
coupled with the annexation of the engine to the soil which took place in this case, is that the
engine became a fixture - i.e., part of the soil - when it was annexed to the soil by screws and
bolts, subject as between Hobson and King to this, that Hobson had the right by contract to
unfix it and take possession of it if King failed to pay him the stipulated monthly instalments.
In our opinion, the engine became a fixture - i.e., part of the soil - subject to this right of
Hobson which was given him by contract. But this right was not an easement created by
deed, nor was it conferred by a covenant running with the land. The right, therefore, to
remove the fixture imposed no legal obligation on any grantee from King of the land. Neither
could the right be enforced in equity against any purchaser of the land without notice of the
right, and the defendant Gorringe is such a purchaser.

The plaintiff's right to remove the chattel if not paid for cannot be enforced against the
defendant, who is not bound either at law or in equity by King's contract. The plaintiff's
remedy for the price or for damages for the loss of the chattel is by action against King, or, he
being bankrupt, by proof against his estate.

JUDGEMENT: it was said that had so decided. For this point it must be assumed that such
intention is manifested by the hiring and purchase agreement, though, as before stated, we
think it is not. Now, in Holland v. Hodgson 36 , Lord Blackburn, when dealing with the
“circumstances to show intention,” was contemplating and referring to circumstances which
shewed the degree of annexation and the object of such annexation which were patent for all
to see, and not to the circumstances of a chance agreement that might or might not exist
between an owner of a chattel and a hirer thereof. This is made clear by the examples that
Lord Blackburn alludes to to shew his meaning. He takes as instances (a) blocks of stone
placed in position as a dry stone wall or stacked in a builder's yard; (b) a ship's anchor affixed
to the soil, whether to hold a ship riding thereto or to hold a suspension bridge. In each of
these instances it will be seen that the circumstance to show intention is the degree and object
of the annexation which is in itself apparent, and thus manifested the intention. Lord
Blackburn in his proposed rule was not contemplating a hire and purchase agreement
between the owner of a chattel and a hirer or any other agreement unknown to either a vendee
or mortgagee in fee of land, and the argument that such a consideration was to be entertained,
in our judgment, is not well founded.

CASE ANALYSIS 4

CASE NAME: Botham vs TSB Bank Plc.

CITATION:[1996] E.G.149 (C.S.) (CA(CIV Div))

FACTS: Mr Botham was the leaseholder of a London flat which was subject to a mortgage
in favour of the TSB Bank. Arrears arose under the mortgage and the Bank obtained
possession and, eventually, sold the property. The proceeds did not discharge the mortgage
debt and litigation arose concerning the contents of the flat. The Bank claimed that many of
the contents (109 items in total) were fixtures and part of the land. Mr Botham argued that the
items were not fixtures and that he should receive credit from the Bank for the value of those
chattels.

PROCEDURAL HISTORY: At first instance, the court had upheld the Bank's claim except
as to one item: a wall mounted electric razor. The judge had not considered each item
separately, but rather preferred to group them into categories: fitted carpets; light fittings; gas
fires; curtain and blinds; fittings on sanitary ware; bathroom accessories; mirrors and marble
panels; kitchen units, work surfaces and sink; and major kitchen appliances.9 The lower court
had worked on the basic assumption that, as the items were affixed (albeit in some instances
tenuously) to the land, they were fixtures. Mr Botham appealed against this finding.

OBSERVATIONS: Although there is no decisive formula which can be applied by the

courts, there are two general rules which help to distinguish a fixture from a chattel: the
method and degree of annexation and the object and purpose of annexation. These twin tests
stand, seemingly, unassailable and, not surprisingly, were adopted by the appellate court
in Botham. Originally, physical attachment (that is, the mode and extent of annexation to the
land) was the decisive issue. The degree test was, however, viewed as harsh and archaic: both
inequitable in its principle and injurious in its effects to the spirit of improvement. In more
enlightened times, the emphasis shifted from the fact of annexation and fell upon the
underlying purpose of why the item was introduced on to the land. The court will look
primarily to the purpose of the item and the purpose of the link between the item and the
building. As Roch L.J. in Botham concluded:
“If the item viewed objectively, is, intended to be permanent and to afford a lasting
improvement to the building, the thing will have become a fixture. If the attachment is
temporary and is no more than is necessary for the item to be used and enjoyed then it will
remain a chattel.”

JUDGEMENT:

Roch L.J. felt that some of the items could safely be regarded as fixtures because, viewed
objectively, their nature showed clearly that they were intended to be permanent and afford a
lasting improvement. These included bathroom fittings and associated ironmongery (towel
rails, soap dishes and toilet roll holders):
“They are items necessary for a room which is used as a bathroom. They are not there to be
enjoyed for themselves, but they are there as accessories which enable the room to be used
and enjoyed as a bathroom.
The kitchen units and sink were also clearly fixtures. The degree of annexation and the tiled
spaces between the worktop and the wall units demonstrated the intention to make a
permanent improvement. Roch L.J. felt it obvious that the units could be removed without
damaging the fabric of the flat: “even if the damage is no more than the leaving of a pattern
of tiling which is unlikely to be of use if different units had to be installed.”
As to the fitted carpets, curtains and blinds, however, the appeal was allowed. Prior
to Botham , the issue of fitted carpets was somewhat uncertain. Although Roch L.J. admitted
that carpet tiles stuck to the floor would be fixtures, on the present facts annexation to the
land was insubstantial and the surrounding circumstances did not demonstrate an intention to
effect a permanent improvement. It was acknowledged that fitted carpets and curtains were
normally removed on sale or purchased separately. In addition, the removal of these articles
did not damage the fabric of the building:
“In fact these items remain in position by their own weight and not by virtue of the links
between them and the building. All these items can be bought separately, and are often
acquired on an instalment basis, when ownership does not pass to the householder
immediately. Many of these items are designed to last for a limited period of time and will
require replacing after a relatively short number of years.”
The lower court had erred by regarding the slight attachment of the articles to the land, which
was no more than that which was needed for these items to be used for normal purposes, as
being decisive. The white goods were, therefore, held to be chattels.

CASE ANALYSIS 5

NAME OF THE CASE: ASHA JOHRI V NEERJA RAJPUT AND ANOTHER

CITATION: RFA(OS) 75/2014

BRIEF FACTS:

A plot of land bearing Municipal No.L-18, Kailash Colony, New Delhi was sold by Navin
Co-operative Development and House Building Society to one Smt.Kesra Devi under a
registered sale-deed dated December 18, 1954.

Under a registered sale-deed dated January 20, 1960 Smt.Kesra Devi transferred her entire
right, title and interest in the plot in question to one Smt.Mira Ajwani who constructed a
residential building comprising a ground floor, a first floor and a barsati floor above. She did
so after obtaining a sanction from the Municipal Corporation of Delhi.

Though not pleaded by any party, relevant would it be to note that when Smt.Mira Ajwani
constructed the building the applicable municipal bye-laws permitted a ground floor, a first
floor and a barsati floor having 25% covered area of the ground floor which could be
increased to 50% by paying a penalty. In other words the barsati floor had an open terrace in
front of it and an open terrace above the roof of the barsati floor.

After a lapse of around forty years, vide a registered sale-deed dated November 06, 2006 the
appellant sold the first floor to one Smt.Promila Gulati and one Smt.Kailash Kheterpal.
Lest there be an issue with respect to the open terrace above the roof of the first floor i.e. said
part of the roof of the first floor above which no further construction in the form of a barsati
floor was made, in the sale-deed dated November 06, 2006 it was explicitly provided that the
appellant was not transferring her right in the open terrace above the roof of the second floor,
evidenced by cl. 3 and 4 of the sale- deed which read as under:-
"3. That now the Vendor hereby sells, conveys, grants, transfers and assigns all her rights,
titles, interests, claims, benefits in the said portion except the terrace rights preserved above
the second floor by the Vendor, with super-structure standing therein, along with
proportionate, undivided, indivisible and impartible share of ownership rights in the land
beneath the same, including easements and appurtenances, whatsoever, pertaining to the said
Portion TO HAVE AND TO HOLD THE SAME unto the Vendees, ABSOLUTELY &
FOREVER.
On June 07, 2010, Smt.Neerja Mehta executed a registered sale-deed and sold the second
floor (barsati floor) to the respondent No.1, Smt.Neerja Rajput.

OBSERVATIONS

From the narratives of the fact above it would be apparent that the claim of the
plaintiff/appellant was premised on the fact that Mira Ajwani sold to Shabu Prem Chand
Bhagwanani the entire first floor and the barsati floor without reserving any right above the
terrace of the roof of the barsati floor and thus she was left with title only to the ground floor.
The right in the terrace above the existing barsati floor belonged to Shabu Prem Chand
Bhagwanani. He in turn sold all his rights to the appellant.
Under the sale- deed executed by her of the first floor in favour of Promila Gulati and Kailash
Kheterpal she sold the first floor expressly recording that she was reserving her right in the
second floor and the terrace above. On the same day when she sold the second floor to Neerja
Mehta she expressly reserved her right in the terrace of the second floor. In the operative part
of the sale- deed she clearly mentions that sale of the second floor by her would exclude the
terrace right above the roof.

The response of the respondent was that when Mira Ajwani sold the first floor and the barsati
floor to Sh.Shabu Prem Chand Bhagwanani she did not sell the terrace rights of the barsati
floor to him and that she was the owner of the said terrace rights which she willed to her
grandson Dushyant Ajwani. Smt.Mira Ajwani never sold the ground floor to anybody which
she willed to the Dushyant Ajwani.
Being the owner of the ground floor and the owner of the terrace above the barsati floor,
Dushyant Ajwani could collaborate with Neerja Rajput, the owner of the barsati floor/second
floor to reconstruct the barsati floor and raise further construction of a third floor thereon.
18. The learned Single Judge has returned a finding against Asha Johri and in favour of
Neerja Rajput and Dushyant Ajwani. The reasoning of the learned Single Judge is that when
Mira Ajwani sold the first floor and the barsati floor to Shabu Prem Chand Bhagwanani she
did not sell the terrace above the barsati floor and similarly when Shabu Prem Chand
Bhagwanani sold the first floor and the barsati floor to Asha Johri he did not sell the terrace.
With reference to the sale-deed dated May 05, 1975 where the built up property sold has been
detailed in the schedule, noting the same in paragraph 11 of the decision, the learned Single
Judge has opined in the next paragraph i.e. paragraph 12 of the decision, that while giving a
complete description of the property sold there is an omission to make a mention of the
terrace floor.

The issue raised in the instant lis between the parties brings into focus an interesting legal
issue concerning immovable property. The law relating to property has an unenviable
reputation for its complexity. The problem is not with property, but with conveyancing, since
the latter is concerned with how rights in property are created and transferred.
The largest estate in land is absolute ownership, but in today's world, due to town planning
and building bye-laws, since all urban land is held on certain conditions, the maxim : cujus
est solum, ejus est usque est ad coelum et ad inferos, meaning that the owner of the soil is
presumed to own everything up to the sky and down to the center of the earth, has become
redundant; to be kept in the legal archives.

It is settled law that ownership is a bundle of rights and denotes the relation between a person
and an object forming the subject matter of his ownership. It consists of a complex mass of
righs, all of which are rights in rem, being good against all the world.

Conventionally, 5 incidents of ownership are recognized.

I) The first is the owner's right to possess the thing which he owns.
II) The second is the owner's right to use and enjoy the thing owned.
III) The third is the owner's right to consume, destroy or alienate the thing owned.
IV) Fourthly the duration for which the thing owned may be owned.
V)Lastly and fifthly, the residual character of the thing owned.
26. Immovable property is defined by S. 3 of the General Clauses Act, 1897 as including
land, benefits arising out of land and things attached to the earth, or permanently fastened to
anything attached to the earth.
"Attached to earth" is defined in S. 3 of the Transfer of Property Act as meaning
(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.
(c) attached to what is so imbedded for the p
ermanent beneficial enjoyment of that to which it is attached.

JUDGEMENT

The Supreme Court of United States in the landmark judgment reported as 328 U.S. (1946)
United States v. Causby held, "It is ancient doctrine that at common law ownership of the
land extended to the periphery of the universe-Cujus est solum ejus est usque ad coelum. But
that doctrine has no place in the modern world."

The said judgments evince that the owner of a property is entitled to the "space" on either
direction of his immovable property to the extent that it does not encroach upon the rights of
any other person. Thus, a person is entitled to dig a hole in his ceiling to fix a fan. However,
he is estopped by law from piercing a hole deep enough to penetrate the floor above his
ceiling because in doing so he would be contravening the rights of the person who owns the
floor above.
Similarly, a person in ownership of the ground floor in a building would have a right to
construct a basement beneath the existing ground floor and a right to raise a construction
vests in the person who enjoys ownership of the floor right below the roof.

Moving on, it is pertinent to discuss whether the sale of a floor property would also
encompass the transfer of ownership of a terrace above.

As held in the decision reported as AIR 1954 Ajmer 63 Makhanlal & Ors. V. Lala Laksmi
Chand & Ors., wherein it was observed:
"I agree that ordinarily the roof goes along with the room, being treated as a part of it and in
view of the general law that any person owning a piece of ground owns all the space over it."
it would be apparent that a terrace goes along with the roof and does not require any express
covenant so stating.

In the decision reported as 2012 GLH (2) 654 Vrajmoti Corporation v. Ambawadi
Apartments Owners Association & Ors. the High Court of Gujarat held as under:-
"It is required to be mentioned that learned Counsel, Mr. Soni has referred to the Oxford
Dictionary for the purpose of meaning of terrace, which reads Terrace.
1. Raised level place, natural or artificial, esp. raised walk in garden or level space in front of
building on sloping ground; (geol) horizontal shelf or beach bordering river, lake, or sea.
2. Row of houses on raised site or on face of rising ground; row of houses of uniform style
built in one block. v.t. Form into, furnish with, terrace(s).

Again, the word 'roof is defined as upper covering the use of the building. Meaning thereby,
when the flat or the unit is constructed, obviously it need to have roof as a ceiling. In
multistoried building like the flats consisting of more than two levels, a ceiling or roof of one
unit or the flat would be a flooring for the flat or the unit at the next higher level"
As stated above, the portion or the roof is ceiling to the building and it would be forming a
ceiling of the flat at the last floor, which cannot be claimed as an exclusive property or
exclusive right for use by anybody either members or the even Organizer or such association
like the appellant-plaintiff that they have right to use make such right of terrace or building
for their own commercial purpose and the right is denied to the independent flat holder. If
that is permitted, it would also amount to negating the right of flat or unit holder to enjoy the
amenities and facilities, which is allotted to them in as much as if the terrace is permitted to
be used, it could be used for the commercial purpose like restaurant or any other purpose
where there is in grace or out grace of the people, which in turn would create nuisance for the
allottees of the flats and it would affect their right of peaceful enjoyment of the flat or the unit
allotted to them.

The word roof as discussed above is a ceiling and it would be covered by definition of
common areas and facilities and, therefore, the terrace would certainly form a part of the flat,
which is allotted and sold to the respective flat holders or unit holders on ownership basis"
It is thus apparent that the view taken by the learned Single Judge overlooks the
jurisprudence on the subject and the case law.
The appeal is allowed. The impugned order dated February 28, 2014 is set aside. Suit filed
by the appellant is decreed declaring that the appellant is the lawful owner of the terrace
above the barsati floor of property No.L-18, Kailash Colony, New Delhi - 110048 and that
the Will dated May 14, 2002 executed by Mira Ajwani in favour of Dushyant Ajwani is void.
It is declared that Mira Ajwani had no right, title or interest in the terrace above the barsati
floor on the date when she died.
Noting that the respondents have already demolished the barsati floor and probably the
existing first floor it is decreed that said respondents would have no right to construct above
the second floor and that the terrace above the roof of the second floor shall be the property
of the appellant who would have a right to construct thereon as per the Municipal Bye-laws.

NAME OF THE CASE: Jnan Chand Chugh vs Jugal Kishore Agarwal And Ors.

CITATION: AIR 1960 Cal 331

FACTS OF THE CASE:The facts of the case fie in a very short compass. The plaintiffs
father Ratan Chand Chugh deceased entered into an agreement on 9-6-1953 with the
defendants herein whereby the latter agreed to lend to the borrower from time to time as and
when required a total sum of Rs. 1,00,000/ for the purpose of the borrower's business. There
is a recital in this document that in order to secure the proposed loan the borrower had agreed
to execute, whenever called upon, a formal legal charge over his entire machinery and
fixtures as specified in the schedule to the document. In pursuance of the above agreement
and in consideration of a sum of Rs. 1,00,000/- the plaintiffs father Ratan Chand Chugh
executed a mortgage in favour of the defendants herein of properties set out in the schedule to
the deed of 4-8-1953.

Ratan Chand was only a monthly tenant of the land on which the factories stood. The
properties charged include hinges, pull drawers, door bolts and belt lacing and machinery,
described more fully in the schedule to the deed, As a matter of fact there are two factories
one at the premises already mentioned and the other Main Road, Calcutta, also situate outside
the original jurisdiction of this Court. Below the list of machinery given in the schedule there
is an endorsement reading "machinery, fixtures at premises No. 246, Maniktola Main Road
and 258/4, Upper Circular Road, Calcutta". The only other thing of any significance
mentioned in the deed is a statement that "if the properties hereby granted or any portion
thereof be at any time acquired by the State of West Bengal or any public or corporate body
or legal authority for any public purpose then the amount of compensation money awarded in
respect of such acquisition shall be applied towards the payment of costs and then towards
the interest and the balance, if any, towards the payment of the principal money for the time
being due under these presents without further consent of the mortgagor and the mortgagee
shall be entitled to receive the said compensation money and appropriate the same".

PROCEDURAL HISTORY: On 5-7-1957 the mortgagee filed a suit on the mortgage with
leave under Clause 12 of the Letters Patent on the ground that the money was advanced in
Calcutta and the mortgage executed within the jurisdiction of this Court The mortgagor filed
an affidavit-in-opposition thereto contending, inter alia that this Court had no jurisdiction to
try the said suit inasmuch as the properties mortgaged were heavy machinery imbedded and
permanently attached to and fixed in the earth and were, immoveable property. Bose J., who
heard the application, appointed the Official Receiver a Receiver over the mortgaged
properties. The plaintiff preferred an appeal therefrom taking the same point as to
jurisdiction. Thereafter there was a compromise between the par-tics whereby a preliminary
mortgage decree was made on consent on 20-1-1958, the plaintiff undertaking to withdraw
the said appeal. A final decree was passed on the basis of the, said preliminary decree on 18-
8-1958.

OBSERVATIONS: The following questions were answered by the court

(a) Was suit No. 1182 of 1957 -- a suit for land?

2. (b) Did tin's Court have jurisdiction to try the said suit?

3. Is this suit barred by res judicata or principles analogous thereto?

4. To what relief, if any, is the plaintiff entitled?

The plaintiff examined one Jyotirmoy Dasgupta who said in his examination-in-chief that he
was a technician employed by the plaintiff as works manager of the factories mentioned. He
claimed to have worked there for five years continuously and to have intimate knowledge of
the machinery and the building. The machinery, according to him, were for the purpose of
metal shaping and electro plating. He was shown the mortgage deed and he described the
machinery item by item. He said that the machines have their foundation in the earth and they
were fixed by bolts and nuts to concrete bases imbedded in the earth. He added that each
machine stood on legs with holes in them and were fixed to the foundation by means of bolts
imbedded in the concrete and nuts fixing the legs to the concrete foundation. These machines
were worked by electric power. To a question put by the Court the witness said that the
machines could not be removed easily from the foundation. In cross-examination he said that
cement concrete was first laid in the earth to form the foundation, then before the concrete
had become quite dry bolts were put in position so that they would go through the legs of the
machine through the holes made for the purpose. When the concrete was quite dry the
machines were put in position and fixed to the foundation by screwing the nuts from above
on to the bolts. Usually, according to the witness, when a machine has to be removed all that
has to be done is to undo the nuts and lift the machine from the foundation, but the witness
added that in some cases the concrete foundation has to be disturbed to take the machine out.

The defendants examined one Stefen Schonbrenner who was an engineer of Messrs. Francis
Klein and Co. Ltd. He produced the catalogue of his Company which contains pictures of
some of the machines of the kind appearing in the photographs exhibited by the plaintiff.
According to him these machines could be easily removed by unscrewing the nuts and the
method of fixing them to the earth was by putting the bolts in the concrete foundation so that
they got imbedded therein and then putting the machines on the floor so that they could be
fixed to the bolts by screwing the nuts thereon.

If the intention of the person erecting the structure within which the machinery was housed,
was to pull down the structure, it required, at a short notice and without a great deal of
expense can it be said that his intention at the time of fastening, the machines to the earth or
to the concrete bed was, to fasten the same for the permanent beneficial enjoyment of the
land? To my mind, the answer can only be in the negative. In my view, the owner of the
machines knew very well that his interest in the land was precarious and uncertain while his
interest in the machinery was absolute and permanent and it must be inferred in this case that
his intention was to remove the machines elsewhere, if necessary, without much trouble or
expense, the degree of the annexation and the intent of the annexation shall always be kept in
mind.

It is not open to the parties to treat movable property as immovable property if the property
was not in fact immovable. The intention evinced at the time when the loan was created or
when the document recording the loan was executed or registered is not material. The test, in
my view, is the object with which the machinery was affixed to the land and the manner in
which it was affixed. If the mode of attachment was imbedding in the earth as in the case of
walls and buildings or if the object of attachment was for the permanent beneficial enjoyment
of the land to which it was attached then the property would be immovable property within
the meaning of Section 3 of the Transfer of Property Act but not otherwise.

JUDGEMENT:

In the judge’s view the suit has no merits and the issues raised must be answered as follows:

Issue 1 -- The properties mortgaged are not immovable property.

Issue 2(a) -- Suit No. 1182 of 1937 was not a suit for land.

Issue 2(b)--This Court had jurisdiction to try the said suit

CASE NAME: Holland and Another v Hodgson and Another

CITATION: (1871-72) L.R. 7 C.P. 328
BRIEF FACTS OF THE CASE:

The owner in fee of a worsted mill, at which he carried on the business of a worsted spinner
and stuff manufacturer, mortgaged it to the plaintiffs. By a deed of arrangement under the
Bankruptcy Act, 1861 , subsequently executed, the mortgagor assigned all his property to the
defendants as trustees for the benefit of his creditors. Under this latter deed the defendants
seized certain looms which were in the mill that was mortgaged. These looms were attached
to the stone floors of the rooms of the mill by means of nails driven through holes in the feet
of the looms, in some cases into beams which had been built into the stone, and in other cases
into plugs of wood driven into holes drilled in the stone for the purpose. It was necessary that
the looms should be so attached for the purpose of steadying them and keeping them in a true
direction, perpendicular to the line of the shafting, by means of which the steam power was
applied to them. It was impossible to remove the looms without drawing the nails; but this
could be done easily and without any serious damage to the flooring.

OBSERVATION:
In the case of the looms which were in rooms on the ground floor, the floors of which rooms
were formed throughout of stone flags, the method adopted was as follows: Holes about half
an inch or three-quarters in diameter were drilled or cut in the stone floor in the places where
two of the four feet of each loom at opposite corners would stand. Into each of these holes
was driven a plug of wood, so as to fill it up completely and make a tight fit. Then the loom
was placed in position and brought to a proper level by thin pieces of wood packed, where
necessary, under the loom feet, and then a nail about 4 in. long, in some cases with a flat
head, and in others with a square bolted head, was driven through the hole in the loom feet
into the wooden plug.

The other two feet of each loom were left free. In the case of the looms which were in rooms
on the upper floors, the method adopted for keeping the looms steady and in their proper
position for working was somewhat different. The floors of these rooms, like the others, were
principally formed of stone flags, but beams of wood about 4 in. wide and 3 in. thick were
built into the floor along the lines upon which the loom feet stand, and the nails used for
keeping the looms in these rooms steady and in their proper position for working were driven
at once into these beams, instead of into wooden plugs, as in the case of the looms on the
ground-floor rooms.

The rooms in the upper floors were built and arranged specially to receive the looms, and the
purpose for which the beams were introduced was to supersede the necessity of drilling or
cutting holes for the wooden plugs. After the nails had been driven into the wooden plugs or
beams, as above described, the looms could not be removed without drawing the nails from
the wooden plugs or beams, but this could easily be done without any serious injury to the
floors. It was not necessary, for the purpose of keeping the looms in their proper positions for
working, that the nails so driven into the wooden plugs or beams, as above described, should
have heads. Spikes without heads would equally have answered the purpose, and if such
spikes had been used the looms could have been lifted up and removed and again placed in
their proper position for working without disturbing or removing the spikes.

JUDGEMENT(CONCLUSION):

The words “merely for a temporary purpose” must be understood as applying to such a case
as we have supposed, of the anchor dropped for the temporary purpose of mooring the ship,
or the instance immediately afterwards given by Parke, B., of the carpet tacked to the floor
for the purpose of keeping it stretched whilst it was there used, and not to a case such as that
of a tenant who, for example, affixes a shop counter for the purpose (in one sense temporary)
of more effectually enjoying the shop whilst he continues to sell his wares there. Subject to
this observation, we think that the passage in the judgment in Hellawell v. Eastwood does
state the true principles, though it may be questioned if they were in that case correctly
applied to the facts. The Court in their judgment determine what they have just declared to be
a question of fact thus: “The object and purpose of the connection was not to improve the
inheritance, but merely to render the machines steadier and more capable of convenient use
as chattels.”

Mather v. Fraser Wood, V.C., who was there judge both of the fact and the law, came to the
conclusion that machinery affixed not more firmly than the articles in question by the owner
of the fee to land, for the purpose of carrying on a trade there, became part of the land.

And it seems difficult to say that the machinery in Mather v. Fraser was not as much affixed
to the mill as an adjunct to it and to improve the usefulness of the mill as such, as either the
threshing machine or the hay-cutter. If, therefore, the matter were to be decided on principle,
without reference to what has since been done on the faith of the decisions.