TMI Blog1944 (4) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... agement of his several mills to plaintiff 1 for a period of two years. The Northern Circars Fibre Trading Company, who were thus entrusted with the management, undertook amongst others to invest a sum of ₹ 25,000 in cash in the business and this amount was to carry interest at 12 per cent. per annum. They were referred to in the agreement as the dubashees. It was a term of the agreement that the monies invested by the dubashees shall be a first charge on the assets of the firm. The plaintiffs instituted the suit for the recovery of a sum of ₹ 66,746-9-9 as due to them in respect of the moneys invested by them in the business together with interest and the commission earned by them. They also claimed to be entitled to a first charge on the machinery in the mills, the stock-in-trade and the goodwill of the business. The agreement of 16th November 1933 had not been registered under the provisions of the Registration Act, but the plaintiffs claimed that the provisions of the agreement relating to the charge were nonetheless effective in so far as the moveables , viz., the plant and machinery and the stock-in-trade were concerned. 2. Subsequent to the institution of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and pull out the iron pillars to which the machine is screwed down. He came to the conclusion that the machinery was moveable property by asking himself the question whether the mill (machinery) existed for the land or the land existed for the mill (machinery), that is whether the mill is of primary importance and the land only of secondary importance in this case or vice versa. His view appears to be that the bone mill stands imbedded in and attached to the earth not for the beneficial enjoyment of the land in which case alone it should be regarded as immovable property but for the beneficial enjoyment of the mill itself which therefore remained notwithstanding the attachment moveable property only. After the best consideration we can give to the question we are of opinion that the learned Judge's decision cannot be supported. The real question which falls to be decided in this appeal is whether the writing evidenced by the dubashee agreement, referred to above, is required by law to be registered because it purports to create a right, title or interest in immovable property of the value of ₹ 100 and upwards. It is common ground that the value of the machinery is more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h apply to a simple mortgage shall, so far as may be, apply to such charge. 4. One of the provisions here alluded to is that contained in Section 59 which makes instruments creating a charge in respect of property of a value over ₹ 100, compulsorily register-able. If we now turn to Section 4, T. P. Act , we find it says that Section 59 is among a group of sections therein mentioned which should all be read as supplemental to the Registration Act, 1908. So far as the question of registration is concerned, we think that the two Acts are in pari materia and it will therefore be wrong to construe the definition of immovable property in the one Act as being different from that in the other, in the absence of words clearly pointing to a distinction. Coming back to the definition of immovable property in the Registration Act and leaving out the several species of immovable property enumerated therein which are all different from the property here under consideration, it will be seen that the governing principle with respect to immovable property in general is stated in the following words things attached to the earth or permanently fastened to anything which is attached to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 to 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 ship owner 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 part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he opinion that there is nothing in the English cases which made them inapplicable in the determination of the test to be applied for ascertaining whether and in what circumstances moveables annexed or attached to an immovable property became themselves immovables. The learned Judge observed, if we may say so with respect, quite correctly that: If a thing is imbedded in the earth or attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached, then it is part of the immovable property. If the attachment is merely for the beneficial enjoyment of the chattel itself, then it remains a chattel, even though fixed for the time being so that it may be enjoyed. The question must in each case be decided according to the circumstances. He has pointed out that when the owner of a building instals machinery therein he may well have intended to make a permanent improvement to the premises which he owned in order to facilitate the user of those premises but that a tenant in temporary occupation of leased premises is not likely to have had any such intention in making the improvement and he accordingly held that the oil engine did not become and was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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