TMI Blog1968 (10) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... it and the question is as to the true legal effect of what he did. First, on 8th March, 1951, he divided the plot into two parts, one marked plot No.1 and the other marked plots Nos.l-A and 1-B. It appears that the latter part was given two plot numbers as there was a private Jain temple on a portion of it and that portion was given plot No. 1-B. He " gifted " plot No. 1 to Sakarchand and plots Nos. 1-A and 1-B to Ramanlal. Since under the bye-laws of the society no plot could be held by a person who was not a member of the society, Sakarchand agreed to subscribe to the necessary shares from the society and so far as Ramanlal was concerned, the deceased agreed to transfer his shares to Ramanlal. The deceased also handed over possession of the respective plots to Sakarchand and Ramanlal. These facts were recorded by the deceased in a declaration made by him on the same day, namely, 8th March, 1951. The deceased then made an application dated 27th May, 1951, to the secretary to the society stating that he had divided his plot into two plots, plot No. 1 admeasuring about 1109 square yards and plots Nos. 1-A and 1-B admeasuring about 1341 square yards and " made a gift " of plot No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e land of the society was rightly included in the principal value of the estate of the deceased ? The only ground on which the revenue claimed to include it was that there was no valid gift of the superstructure to Sakarchand and Ramanlal and the superstructure therefore continued to belong to the deceased and was at the time of his death his property which passed on his death under section 5. The point which therefore arises for determination is whether the superstructure came to be owned by Sakarchand and Ramanlal as claimed by the accountable person or continued to belong to the deceased at the time of his death as contended by the revenue. To determine this point it is necessary to analyse the true nature of the transaction entered into by the deceased. We must ask ourselves the question: What was the interest of the deceased in the land? What was his interest in the superstructure and what change in juridical relationship was brought about as a result of the steps taken by the deceased? The question is one of great importance having far-reaching consequences, as it is a matter of common knowledge that in this city where co-operative housing societies have flourished to an exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heading of this form indicates that it is concerned only with regulations relating to leases to be granted by the society to members desiring to purchase their houses but in fact, as clause (1A) of that form shows, the regulations relate also to leases to be granted by the society to members desiring to construct their own houses. The scheme of the bye-laws, therefore, clearly is that out of the land belonging to the society a plot may be allotted and given by the society on lease to a member who holds at least five shares and the member may build his own house upon it ; the plot would continue to be held by the member so long as he is a member; if he ceases to be a member for any reason, by expulsion or otherwise, the society can determine the lease and take back the plot and if it does so, the building built by the member on the plot would also go to the society with the plot and the society would be bound to pay the value of the member's interest in the house: vide clause 8 of Form B. Now, in the present case, the deceased was a member of the society holding at least five shares and out of the land of the society, a plot, being plot No. 1, was allotted to the deceased but no le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 to 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. " The statement of the law was quoted with approval by the judicial Committee of the Privy Council in Vallabhdas Naranji v. Development Officer, Bandra. The Privy Council also referred with approval to the following observations of Couch C.J. in Narayan v. Bholagir : " 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. " The effect of these decisions was summarised by Venkatarama Aiyar J., speaking on behalf of the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 1-A and 1-B to the name of Ramaulal. The result was that the right of the deceased to remain in possession of the original plot No. 1 under an agreement of lease from the society came to an end and Sakarchand and Ramanlal instead became entitled to hold and retain possession of plot No. 1 and plots Nos. 1-A and 1-B respectively, each under a distinct and separate-albeit implied-agreement of lease from the society. Now, as pointed out above, when the right of the deceased to remain in possession of the original plot No. 1 came to an end and the deceased handed over possession of the reconstituted plots to Sakarchand and Ramanlal, the deceased was entitled to remove the superstructure but he did not do so and handed over the superstructure to Sakarchand and Ramanlal along with the reconstituted plots. The question is, what is the effect of this transaction ? It is now well settled that if a person who, whilst lawfully in possession, had constructed on the land of another, does not remove the superstructure when parting with the possession of the land, he loses his right to remove the superstructure. It was so held by the judicial Committee of the Privy Council in Narayan Das v ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
