TMI Blog1967 (9) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant was the purchaser. He was impleaded as the second defendant in the suit, which was to set aside the sale on the ground, among others, that the engine being a permanent fixture to the land, it was an immovable property, and that in the recovery proceedings the procedure applicable to such property having not been applied, the sale itself was invalid. The first two Courts below differed in their view as to the nature of the property, the first appellate Court being of opinion that it was not an immovable property, Venkatadri J., was not prepared to accept that view and stated: When once a land owner borrows money from the State and purchased an oil engine and fixes it to his land, it must be deemed to be part of the immovab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y not yield always a proper and correct result. While general tests pointed out by judicial decisions, in the light of specific facts, may be borne in mind, eventually the decision on the question should depend upon how the Court, looking at the facts as a whole, feels on the matter. 3. '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 third enactmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capable of being removed, but permanently fastened to the earth when in use, was held to be not chargeable to stamp duty under Section 30(a)(1) of Schedule 1A of that Act, as in the nature of things such properties could not be immovable property. The learned Chief Justice, who spoke for the Court, further observed that the poles of the tent and machinery were imbedded in the earth only temporarily and not permenently. It may be seen that a touring cinema, which is located in a place, is not shifted from place to place but continues to function for fairly a long period. Permanence of the fixture, in the context, is, therefore, of a relative character. For a chattel to become part of immovable property and to be regarded as such property, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the engine itself and in order to use the engine, it has' to be attached to the earth and the attachment lasts only so long as the engine is used. When it is not used, it can be detached and shifted to some other place. The attachment, in such a case, does not make the engine part of the land and as immovable property. Mohammed Ibrahim v. N. C. F. Trading Company Cocanada, AIR 1944 Mad 492 was decided by a Division Bench of this Court under the provisions of the Registration Act, that was a case of machinery of a mill fixed to a cement platform and attached to iron pillars fixed in the ground. It was hold that the movable property so attached should be regarded as immovable property. It seems to us that this case turned on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 realty, but is only a mode to 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 bodily applied to conditions in this country the observations of Lord Halsbury certainly are of weight and point to the correct approach to question of this kind. The House of Lords, again, had to consider in Reynolds v. Ashby Son (1904) A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the engine and the purpose of its fixtures, both show that it cannot be regarded as immovable property. No doubt, the evidence in this case is that the Fetter engine stood affixed to the earth from 1952. But this is because during that period the engine was used for that purpose the fixture was necessary. On that account, the fixture cannot be viewed as a permanent one. 5. On the view we have taken, namely, that the engine and the pump-set remained to be movable property, there was nothing wrong in the procedure applied to the attachment and sale thereof. This being the only point before us, the appeal is allowed, the result of which is that the suit will stand dismissed. Each party will bear its own costs throughout. - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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