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TMI Blog1939 (3) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. On 5th September 1937, the plaintiff brought the present suit for possession of these three houses. The Courts below have decreed the suit. The case for the plaintiff is that the sale certificate in his favour stated that the entire zamindari interest of defendant 1 including his interest in the abadi was sold without any reservation, the words in the sale certificate being "haq-in-haquq abadi"; and that the plaintiff had obtained formal possession over the zamindari. The lower Appellate Court held that "the houses or material thereof as well as the site must therefore be taken to have passed to the auction, purchaser." The Court also found that the donee was in possession of the three houses and that Umrao Singh was living in another village, and had let his cultivatory lands. The argument for the plaintiff-respondent before the Full Bench was based on Section 8, T.P. Act, Act 4 of 1882, which states: Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in execution of, a decree or order of it Court of competent jurisdiction: The plaintiffs claim to have acquired their rights by auction sale in execution of a decree, and accordingly the provisions of Section 8 do not apply. This is also shown by the fact that Section 8 refers to "a transfer of property," and Section 5 says: In the following Sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more living persons, etc. Learned Counsel then argued that Section 8 would apply to the mortgage deed by defendant 1 to the plaintiffs, and that whatever rights were mortgaged, were later sold by auction. I do not think that this argument is sound. Section 8 applies to transfers as defined in Section 5, the principle that everything passes which is not reserved. The reason for this principle is that there is a privity of contract between the parties and that they have an opportunity to know the property in question. But this principle does not apply to auction sales, where the principle is that only so much passes as is specified the reason probably is that the public are Invited to bid for the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amindari share. For the plaintiff, no explanation was offered as to how the three houses in the present case could be appurtenant to the zamindari share, nor how the residential house of a zamindar could be considered appurtenant to his zamindari. It was pointed out by my learned brother, Iqbal Ahmad J., that when a zamindar made a usufructuary mortgage of his zamindari share in a village, the mortgagee did not expect to occupy the residential house of the zamindar. Learned Counsel for the plaintiff replied that this might be the custom, but that the mortgagee had a legal right to occupy the house. Such a proposition implies that the house is part of the zamindari share. A zamindari share is a share in a mahal. The U.P. Land Revenue Act, Act 3 of 1901, defines a mahal in Section 4(4) as "(a) any local area held under a separate engagement for the payment of land revenue." The other classes of mahals (b), (c) and (d) do not apply. The important point is that the mahal is an "area" and such a word cannot include house property. The area includes the village abadi. But the houses in the abadi, apart from their sites, belong either to the zamindars or to the ryots, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant 2 has no right to transfer, either the site or the buildings. The lower Appellate Court has found that defendant 2 had no right to transfer the site and has granted a declaration that the plaintiff is owner of the site. The plaintiff-appellant has come in second appeal asking for the relief of possession on the allegation, that defendant 2 had no right to transfer the building.... The effect of the partition was to transfer the site to the plaintiffs. There is nothing whatever in Section 118, Land Revenue Act, to affect, the ownership by defendant 2 of the buildings. Accordingly we consider that defendant 2 remained owner of the buildings. There is no restriction on the owner of a building to transfer that building. Under Section 6, T.P. Act, the owner of property may transfer it unless there is some legal restriction to the contrary. In the present case no such restriction is shown. 7. The second ruling is Kanhaiya Lal v. Sheva Lal AIR1936All14 ; the facts were: Mussamat Jascda was a co-sharer in the village and she owned the house. There was an auction-sale in 1885 by which her zamindari share waff sold. She became an exproprietary tenant and was succeeded by Lala Ram, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases the owner of the house lost his zamindari share, in the first case by the house being placed in a mahal in which he was not a co-sharer, and in the second case by auction sale of the zamindari share. The situation produced was in each case the same, that the owner of the house had no zamindari share in the mahal in which the house was situated. In each case it was held that the owner of the house remained owner and had a right to transfer the house with the right of residence and not merely the materials. Various rulings have been mentioned by counsel and in the order of reference, but the cases dealt with are not similar to the present case. Abu Husan v. Ramzan Ali (1882) 4 All. 381 dealt with a case where the father of one Kadir Ali Khan had bought a whole village and with it a killa or fort, which had always been occupied afterwards by the family. On p. 382 the Court held: As the building in question would seem to have belonged to Kadir Ali Khan qua zamindar, and as his Kimindari rights and interests were brought to sale in 1873 and purchased by the plaintiff-appellant, the presumption is that the killa was included, unless there is anything to show that it was excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the zamindari. 11. Learned Counsel for the plaintiff respondent wishes to read this sentence as an isolated proposition of law. This is incorrect, as the sentence does not say "in the entire absence of evidence" but "in the entire absence of evidence to the contrary" and this indicates that the learned Chief Justice had regard to the evidence in support of his proposition, evidence which he had just set out, and evidence which he had to weigh, as the case was a first appeal. And if he were laying down a general proposition he would have said "within a zamindari area" and not "within the zamindari area"; the use of the definite article shows that he was referring to the particular zamindari in question, and not to zamindari as a general proposition. Further, if the learned Chief Justice were laying down a general proposition, he would have followed it up by saying that in the present case there was the evidence in support of it which he had already enumerated. 12. In my view this ruling deals with the particular facts of the case, and lays down no general proposition. Sakhawat Ali Shah v. Muhammad Abdul Karim Khan A.I.R. (1915) All. 408 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items of property set out on p. 557 was in dispute. Defence claimed that these items were not appurtenant to Surjapore. "With respect to Kutubgunge they alleged it was their mukarrari istemrari ancestral property, and it was also that of Haider Reza and Safdar Reza," and that that decision was res judicata (p. 559). This property was "an undivided share of a village and bazar called Kutubgunge" (p. 557). The trial Court decreed the full claim of the plaintiffs, and the High Court upheld the decision except for holding that the sale certificate did not convey to the plaintiffs the ryoti interest of Safdar Reza in the Kutubgunge bazar but only his zamindari interest holding that res judicata applied (p. 560). Their Lordships of the Privy Council held that there was no res judicata as both parties claimed from Ahmad Reza, in whose favour the decision was given. On p. 563 the case about the bazar in dispute is stated thus by their Lordships: The other, which was then (and is now) in dispute, had been built by a female ancestor of the then plaintiff Ahmed Reza, and was claimed by him as part of his share in the zamindari. It was apparently held under a lease or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Ahmad, J. 18. I agree that the answer to the question referred to this Full Bench must be that the property in the houses in suit did not pass to the plaintiffs under the auction sale of 26th January 1932. The sale certificate on the basis of which the plaintiff-respondents claim title to the three houses in dispute no doubt describes the property purchased by the plaintiff's as the zamindari share of Umrao Singh, defendant-appellant, together with all the abadi rights (mai jami haq-i-haquq abadi), but these words in my judgment, are not of sufficiently wide import to include the residential houses of Dmrao Singh. The words haq-i-haquq abadi denote such rights as a person has in the abadi of the village in his capacity as a zamindar, e.g. the proprietary rights in the site of the houses of tenants and raiyats, in vacant sites within the ambit of the abadi and in the site of a market (bazar) in the village. These rights are valuable rights and entitle the zamindar, in the absence of a custom to the contrary, to realize market dues and other customary dues from the tenants and the raiyats. Such rights are prima facie appurtenant or adjunct to the zamindari right owned by the z ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held in that case that so far as the residential house of a co-sharer is concerned, he has proprietary title in three things : (1) a joint right in the site; (2) a proprietary right in the materials; and (3) a right of residence in the house; and it was held that by auction sale of the zamindari share only the cosharer's right in the site passed to the auction-purchaser and not his proprietary rights in (2) and (3). Reliance is however placed on behalf of the plaintiffs on Section 8, T.P. Act, which inter alia provides that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include, where the property is land...all things attached to the earth. 21. It is pointed that the phrase "attached to the earth" has been defined by Section 3 as meaning inter alia "imbedded in the earth, as in the case of walls or buildings," and it is argued that as the three residential houses were imbedded in the earth they must be doomed to have passed to the plaintiffs on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use as a last resort for the simple reason that it is of paramount importance to him to have a place for himself and his family to live in. He therefore attaches peculiar value to his residential house and if he intends to transfer the same one would expect a definite mention of the fact being made in the deed that not only the zamindari but also the residential house is being transferred. I therefore hold that on the transfer of zamindari share the residential house of a zamindar does not pass to the transferee unless that house has been expressly transferred by the deed. 23. Reliance was placed on behalf of the plaintiff-respondents on the decisions of this Court in Abu Husan v. Ramzan Ali (1882) 4 All. 381 and Banke Lal v. Jagat Narain (1900) 22 All. 168, and on the decision of their Lordships of the Privy Council in Asghar Reza Khan v. Mahomed Mehdi Hossein Khan (1903) 30 Cal. 556. My learned brother Sir Edward Bennet J. has in the course of his judgment given detailed reasons for distinguishing from the present case the decision in Asghar Reza Khan v. Mahomed Mehdi Hossein Khan (1903) 30 Cal. 556 and I am therefore relieved from the necessity of recapitulating those reasons. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial house of a zamindar passes to the auction-purchaser I must, for the reasons already indicated, with all respect, express my dissent. It may be pointed that Banerji J. who was also a party to the decision did not express any opinion on the point. James Joseph Whittlesea Allsop, J. 26. Khachheru Singh, Kashi Ram and Sisram Singh instituted a suit against Umrao Singh and Mt. Chawara in order to obtain possession of three houses in the village of Nawada Kalan, Pargana Gurmukhteshwar, Tehsil Hapur in the District of Meerut. Their allegations were that defendant 1 Umrao Singh had been a co-sharer in the zamindari of this village, that the plaintiffs on 26th January 1932 had bought the whole of his share at an auction sale with all rights in the abadi, etc. and had been put into possession, that Umrao Singh after the sale had had no rights in any houses in the abadi except such rights of occupancy as he might have as an exproprietary tenant, that Umrao Singh at the time of the sale was in possession of the three houses in suit and that after the sale his possession became that of an exproprietary tenant, that the tenants in the village in suit had no right to transfer their houses o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and barren land and salt, pasture land, cattle sheds, trees, etc. The question is whether the rights in the three houses in suit which were dwelling houses in the abadi, the property of Umrao Singh, were transferred by the sale upon the basis of which this certificate was based. It is not denied that the sale took place in execution of a final decree for sale of property mortgaged by Umrao Singh. 29. I did not understand learned Counsel for the appellant to contend that the property described in the sale certificate was in any way different from that described in the deed of mortgage, but it had been suggested by one of my learned brothers that the sale certificate must be construed independently of any other document and that on a proper construction of it, it should be held that the dwelling houses of the zamindar, i.e. of Umrao Singh, were not included in the property sold. The argument is that the Court was not bound to sell the whole mortgaged property and, even if it did do so, we do not know exactly what was mortgaged because the deed of mortgage is not upon the record. It certainly does not appear from the pleadings in the trial Court or from the judgments of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or necessarily implied, a transfer of property passes forthwith to the transferee all the interests which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include where the property is land the easements annexed thereto, the rents and profits thereof accruing after the transfer and all things attached to the earth. 31. The term attached to the earth means under Section 3 of the Act: (a) rooted in the earth as in the case of trees and shrubs, (b) embedded in the earth as in the case of walls and buildings.... 32. It follows from this definition that a transfer of land includes a transfer of any buildings upon the land whether they are dwelling houses or otherwise. Umrao Singh transferred his share in the mahal. A mahal under the provisions of Section 4, Land Revenue Act is: (a) any local area held under a separate engagement for the payment of land revenue...;(b) any revenue free area for which a separate Record of Eights has been framed...;(c)...any grant of land made Under the waste land rules; and (d) any other local area which the Local Government may by general or special orders declare to be a mahal. 33. A ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I can see no reason therefore why the provisions of Section 8, T.P. Act, should not apply. 35. A second point is that Section 8 does not apply because the sale was not a transfer by act of parties and because under the provisions of Section 2, T.P. Act, the provisions of the Act do not apply to transfers in execution of decrees. It is of course true that the provisions of Section 8 do not apply directly to the transfer effected by the sale in execution of the decree, but if the property sold was the property mortgaged then we have to see what was mortgaged and the provisions of Section 8 do apply to the mortgage. As I have said earlier in this judgment, I do not believe it was ever contended that the terms of the sale certificate were in any way different from the terms of the deed of mortgage. If the Court sold the property mortgaged, then we have to see what was mortgaged and in construing the deed of mortgage we should have to apply the provisions of Section 8, T.P. Act. 36. A third point is that the auction sale of the share in the mahal was conducted by the Collector in accordance with the Rules of the Governor in Council under Sections 68 and 70, Civil P.C., and that a Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose that it would be argued that a garden in a mahal could not be sold by the Collector if the whole mahal or a share of it was the subject of the sale. 38. One of my learned brothers mentions that the order of reference by the Bench of two Judges raises the question whether the houses in suit could be described as appurtenances to the zamindari and he is of opinion that they could not be so described because the other cosharers in the zamindari would have no right in them. He refers to the provisions of Section 118, Land Revenue Act, which is in the following terms: If in making a partition it is necessary to include in the portion allotted to one co-sharer the land occupied by dwelling houses or other buildings in the possession of another co-sharer, the latter shall be allowed to retain it with the buildings thereon, on condition of his paying for it a reasonable ground rent to the co-sharer in whose portion it may be included. 39. This is a provision describing what shall be done in the case of a partition. If one co-sharer erects a building upon the joint land with the consent express or implied of the other cosharers I have no doubt that the other cosharers are not entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be cases where a zamindar enters into a contract with the other cosharers in the mahal or with the whole body of cosharers to take a lease or a license of a particular plot of land to use it for some specific purpose and in these circumstances it may be that he is occupying the land not as a zamindar but as a lessee or licensee, but in my judgment where a zamindar builds merely a dwelling house upon part of the joint land just as other cosharers have done there, is an implied consent by the cosharers that he shall put part of the joint property to a particular use and in such circumstances I cannot see in what capacity he is occupying the land if he is not occupying it as a zamindar or a co-sharer in the mahal. No doubt the other cosharers are not entitled to a share in the house, but the particular co-sharer who built it is occupying it in his capacity as a co-sharer and it appertains to his particular share. Reference had been made to the general custom or practice or idea that a zamindar's house is something apart from his zamindari, but without examining a number of instances to see what particular transfers had been made and whether they did or did not include or were ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " did not include the buildings in that particular Act. Their Lordships of the Judicial Committee of the Privy Council quoted the remarks of a Full Bench of the Calcutta High Court in 6 W E 22811 which were: We have not been able to find in the laws or customs of this country any traces of the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it and is subject to the same rights of property as the soil itself. 43. Their Lordships accepted this dictum and said: This being so, the word 'estate' must be taken to have a more limited meaning than it would have in English law and the Government power of sale for arrears of revenue prima facie is limited to the land, which is subject to the payment to the Government of the annual revenue and in respect of which the proprietor is entered in the general register of revenue paying estates and having special regard to the view held in India respecting the separation of the ownership of buildings from the ownership of the land, and to the recognition by the Courts in India that there is no rule of law that whatever is affixed or built on the soil becomes a part of it and is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so be some guide in the matter, as indeed they were in certain cases that were cited before us at the bar, but when, as here, the words are not definite, the difficulty arises. Khacherr Singh and others, the purchasers at the auction sale of 26th January 1932, were the plaintiffs and Umrao Singh was the defendant. Courts below have decided in favour of the plaintiffs and they hold the view that the property in the houses in suit passed to the plaintiffs. The defendant is the appellant before us and his contention is that the auction sale of 26th January 1932 did not affect the houses. I do not find it necessary to discuss the cases that were cited before us, for they have been discussed in the judgments of my learned brethren. Reliance is placed by the plaintiffs on Section 8, T.P. Act, and on behalf of the defendant the case in Kanhaiya Lal v. Sheva Lal AIR1936All14 is cited. 47. The plaintiffs submit that on a transfer of property all the interest which the transferor is capable of passing in the property is transferred forthwith to the transferee and where the property is land all things attached to the earth - buildings are things attached to the earth - pass to the transferee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said words "attached to the earth," but I think that by the auction sale a joint right in the site only was transferred. The entire land underneath the houses could not and did not pass to the transferee in the present case because the transferor was only a joint co-sharer in the site which was undivided and some of the materials would not be attached to that portion of the land or earth which was sold. The auction purchaser cannot therefore in any event lay claim to all the materials. 49. In the present case after the auction sale Umrao Singh executed a deed of gift of the three houses in suit on 11th March 1932 in favour of his daughter-in-law Mt. Chhawari, defendant 2, and the Courts below have found that the donee is in possession of the three houses and Umrao Singh is living in a different village and has also sublet his cultivatory holdings. Although the matter has not boon referred to the Full Bench, I am of the opinion that Umrao Singh, who was a zamindar and who was entitled to transfer his houses to whomsoever he liked while he remained a zamindar, did not lose this right after losing his zamindari share and his status did not degenerate to that of a mere ryot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the sale certificate issued by the Court. In Abdul Aziz Khan v. Appayasami Naicker (1904) 27 Mad. 131, their Lordships observed at p. 141: Each case however must depend upon its own circumstances, and "in all the cases, at least the recent cases, the inquiry has been what the parties contracted about if there was a conveyance, or what the purchaser had reason to think he was buying if there was no conveyance, but only a sale in execution of a money decree" : Simbhunath Pande v. Golap Singh (1887) 14 Cal. 572 As Lord Watson put it in the course of the argument in Pettaich Chettiar v. Sangili Vira Pandia (1887) 10 Mad. 241, in the case of a sale in execution of a money decree, the questions are, what did the Court intend to sell, and what did the purchaser understand that he bought? These are questions of fact, or rather of mixed law and fact, and must be determined according to the evidence in the particular case.... The rights of the parties to a contract, as Willes J. observes in delivering the judgment of the Court of Exchequer Chamber in Lloyd v. Guibert (1866) 1 Q.B. 115 are to be judged of by that law which they intended, or rather by which they may justly be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of the house. The cosharers will not get any share in the house at the time of the partition or any consideration therefor. It cannot be said to whose share the site would be allotted in the partition. It is quite possible that the site of the house may be allotted to the share of another co-sharer, in which case as provided in Section 118, Land Revenue Act, the owner of the house will have to pay a reasonable rent for the site to the co-sharer to whose share the site may be allotted. 57. With the sale of the zamindari rights of a co-sharer in a Court sale only that property which is owned by him as a zamindar will pass to the purchaser. The test of what is owned by him as a zamindar is whether the other cosharers have any interest or right in it and whether it is owned and enjoyed in common by all the cosharers. Such is not the case with the residential house which is built by one of the cosharers. The other cosharers, as already stated, have no right or interest in the materials, nor have they any right of residence in the house. Whatever may be the case of a private sale, which will be construed in accordance with the provisions of Section 8, T.P. Act, it cannot be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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