TMI Blog1949 (1) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... ding thereon, for a period of 99 years. To the detailed provisions of this agreement I will revert later. The lease was accordingly granted on 30-1-1923, and the plaintiff is the successor-in-title of Reymond, The short question for determination is whether these suits relate to premises which belong to a local authority, because if they do, by the terms of Section 4(1), Bombay Rents, Hotel and Lodging House Rates Control Act, the Act does not apply to such premises. The words of that sub-section are : This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by a grant from the Government in respect of premises taken on lease or requisitioned by the Government; but it shall apply in respect of premises let to the Government or a local authority. It is admitted that the Trustees of the Port of Bombay are a local authority by reason of the definition of that term in the General Clauses Act. The only dispute is whether the premises in suit belong to that local authority. Now the word premises is defined by Section 5(8) of the Act as meaning (a) any land no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchaser was land only and not the house. Their Lord, ships pointed out that in India there was no absolute rule of law that whatever was affixed or built on the soil because a part of it and subject to the same rights of property as the soil itself. This decision to my mind is clear authority for the proposition that a building can be owned by one man and the land by another in India; and that in a case where a lessee puts up a building on a vacant plot of land taken on lease by him, although the lessor may be the owner of the land, the building belongs to the lessee and not to the lessor. 4. But it is urged in this case that although this may be the correct position under Section 108(h), T. P. Act, the Act applies to cases where there is no agreement to the contrary. I have, therefore, to consider the provisions of the agreement to lease as well as the lease. In doing so, the Court is not bound to look, merely to the form which the transaction has taken. The Court is not only entitled but, indeed, bound to consider what is the true nature of the transaction and to give effect to it. 5. The agreement to lease contains inter alia the following provisions which are important. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on it by the lessee at his own expense. I have no doubt in my mind that the latter is the correct construction. It is obvious that the entire building is put up by the lessee. It is further clear that the building was not even ready in the sense of being completed when the lease was granted. It was ready in car case only and the lessee covenanted to complete it at his own expense. The provision that on the expiration of the lease or upon determination thereof the building shall be delivered to the trustees to my mind does not affect the question of their present ownership. It only provides that whenever that eventuality happens, the lessee shall not be at liberty to take away the buildings as he would have been under the provisions of the Transfer of Property Act but the building shall be delivered over to the trustees. 7. Were the true position regarding the ownership of this property any different in law it would lead to many startling results. It is a matter of common knowledge that most of the properties in Bombay are held under similar leases either from the Trustees of the Port of Bombay, or from the City Improvement Trust, or from the Bombay Municipality or from the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or parts of the building let separately belong during the period that the lease subsists? In order to determine that question it is necessary to consider what meaning can be given to the words belonging, to . There is no doubt that these words import a concept of ownership. To my mind they mean very much the same thing as of the ownership of though not necessarily of the absolute ownership of. These words have been interpreted in cases that have arisen for determination in the English Courts under Section 557, Merchant Shipping Act, 1894, which provides that if salvage services are rendered by any ship belonging to Her Majesty no claim shall be allowed for any loss, damage, etc. In connection with this provision, a question arose as to whether ships which were owned by private individuals but were being used by the Admiralty for its own purposes belonged to the Admiralty. The first of such cases was the case of The Nile, (1875) 4 A. E. 449 : (44 L .J. Adm. 38). In that case the Finisterre had been chartered by the Government by a charter not demising the ship. All damage to the ship was at the risk of the owners; and it was therefore held that there was no transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to His Majesty, and as such it is disentitled to earn salvage. He then proceeded to hold that the ship did not belong to His Majesty. The test laid down in this case was applied in a later case, Admiralty Commissioners v. Page, (1919) 1 K. B. 299 : 88 L. J. K. B. 325). By this time, the Merchant Shipping (Salvage) Act, 1916, had been passed, which by Section 1 thereof provided that not with standing the provisions of Section 557, Merchant Shipping Act, 1894 : Where salvage services are rendered by any ship belonging to His Majesty and that ship is a ship specially aquipped with a salvage plant, or is a tug, the Admiralty shall ... be entitled to claim salvage. The question for determination in this case was whether the tug Conqueror was a ship belonging to His Majesty. The tug had been taken up under a charter-party for Government service under which the owners engaged and paid the crew and found stores other than coal and worked the ship, ran the marina risks, the Admiralty bearing risks of war and finding the coal. By letters passed between the Admiralty and the owners an alteration was made in the terms of the charter, the result of which was that the ship was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) whether there is a demise of the property, (2) whether there is full dominion and control over the property in the demisee and (S) whether the risk of the property falls on the demisee, of the absolute owner. 11. Applying these principles to the case of a lease of land together with the building for a limited period of time--particularly a period as long as 99 years--it appears to me that if the lease demises the land with the building and confers on the transferee full dominion and control over the property, the transferee taking the risk of the property, then, for that limited period, the lessee is the owner of the property and the property can be said to belong to him. Ownership is nothing more than a bundle of rights in relation to property. The aggregate of rights constitutes absolute ownership. It may be that during a stated period some of these rights are vested in one person and some in others. In the case of a lessor and a lessee such as we are considering, the lessee has the right of reversion which of course is not tangible immoveable property but an intangible thing. He has also a right of re-entry under the terms of the lease and he has further a right by covenant ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
