Andhra High Court
Bamadev Panigrahi vs Monorama Raj on 17 April, 1973
Equivalent citations: AIR 1974 AP 226
Author: Kondaiah
Bench: Kondaiah, Lakshmaiah
JUDGMENT Kondaiah, J.
1. This appeal by the defendant is directed against the judgment and decree of the Additional Subordinate Judge, Srikakulam, in O. S. No. 76 of 1966 decreeing the plaintiff’s suit for the recovery of a sum of the equipment of a cinema concern known as ‘Kumar Touring Talkies’.
2. The material facts leading to this appeal may briefly be stated : The plaintiff’s husband, late Profulla Kumar Raj and the defendant were friends. According to the plaint allegations, the plaintiff’s husband had obtained a possessory mortgage. On 1-9-1957 from the Raja of Mandasa on 1-9-1957 from the Raja of Mandasa in respect of a site measuring about Ac. 3-51 cents known as ‘Pula Thota’ which contains a bunglow in it, for a sum of Rs. 4,000/- with a view to run to cinema in that place. Profulla Kumar Raj, the plaintiff’s husband, advanced from the year 1952 till the end of 1959 various sums amounting to Rs. 15,000/- to the defendant to meet his obligations under forest contracts which he had entered into with the Raja Seheb of Mandasa. The plaintiff’s husband built a temporary cinema structure and erected a temporary pandal in a portion of the plaint schedule site. For the purpose of the plaint schedule site. For the purpose of the cinema, the plaintiff’s husband purchased under a hire purchase agreement dated 17-2-1958 a cinema projector and its accessories under an agreement with the Commercial Credit Corporation, Madras, for a sum of Rs. 16,327/-. On the same day, he purchased a diesel amount of Rs. 3,506/-. The aforesaid cinema projector and the oil engine and their accessories have been imbedded and installed in the earth by constructing foundations for the purpose of running the cinema concern known as ‘Kumar Touring Talkies.’ Finding no time to manage the cinema concern the entrusted the management of the trust and confidence in him. The defendant taking advantage of his position, as being the person in management, colluded with the Raja Saheb of Mandesa and got an endorsement, of discharge made on the mortgage bond dated 1-9-1957 and subsequently obtained the mortgage in his name on 6-3-1961. The plaintiff’s husband had issued a notice on 5-5-1961 calling upon the defendant to render a correct account of the management of the cinema concern and demanding from him the payment of Rs. 15,000/- previously advanced by him and to deliver possession of the entire cinema concern including the machinery, equipment, records etc., and also the site. The defendant, by his reply dated 2-6-1961, denied has liability either to account for the management of Kumar Touring Talkies or to the return of Rs. 15,000/- alleged to have been advanced by the plaintiff’s husband. Though the claim of the plaintiffs’ husband was denied categorically by the defendant as early as 2-6-1961, no suit had been filed by him during his lifetime for the recovery of possession of the cinema equipment or for recovery of the amount advanced by him. However, the plaintiffs’ husband filed a suit, O. S. No. 124 of 1961, on the file of the District Munsif Sompeta, for the recovery of the mortgage amount of Rs. 4,000/- against the Raja of Mandasa and the defendant. That suit was decree ex parte and the proceedings to set aside the ex parte decree are said to be pending in this High Court.
3. As the plaintiff’s husband was sick in 1963 and continued to be so till 7-8-1965 when he died, the plaintiff filed the present suit for declaration that she is the owner of the cinema equipment such a projector and diesal oil engine etc., embodied in the plaint schedule site relating to the cinema concern known as Kumar Touring Talkies, and for directing the defendant to remove the said cinema equipment and deliver the same to the plaintiff, or in the alternative, for recovery of a sum of Rs. 19,833/- being the values of the machinery, with subsequent interest and for costs. The suit claim was resisted by the defendant contending inter alia that it was he, but not the plaintiff’s husband , who is real owner of the Kumar Touring Talkies, that he had obtained the mortgage deed from the Raja of Mandasa though he got the deed executed benami in the name of the plaintif’s husband, that it was he who really obtained the hire purchase agreement from the Commercial Credit Corporation, Madras in the name of the plaintiffs’ husband, that he had paid the instalments as per the agreement, that he did to borrow any amount from the plaintiff’s husband and that the suit pertains to the recovery of possession of movable property and is, therefore, barred by limitation. It is further stated that the defendant removed the equipment, machinery, projector etc. in December, 1961, and January, 1962, that his attempt to obtain a licence in his name from the concerned authorities in his name from the concerned authorities was unsuccesful on account of the attitude of the plaintiff’s husband and that there is no merit in the suit.
4. The trial Court, framed as many as 16 issues as specified in paragraph 10 of its judgment, Issues 9 and 11 were recast on 19-10-1970. The plaintiff examined P. Ws. 1 to 4 and marked Exs. A-1 to A-49 in support of her claim. The defendant examined himself as D. W. 1 in addition to examining D. Ws. 2 and 3 and filed Exs. B-1 to B-75 in support of his defence.
5. The trial Court, on a consideration of the material on record, has found that the cinema equipment as well as the oil engine which were embedded in the earth are immovable property and, therefore, the suit was within the period of limitation, that the suit property really belonged to the plaintiff’s husband who had entrusted the management of the cinema concern and the suit premises to the defendant and that it was the plaintiff’s husband that entered into the hire-purchase agreement with the Commercial Credit Corporation, Madras. In the result, declaring the plaitiff’s husband and after his death, the plaintiff as the owner of the suit property, a decree for the recovery of Rs. 19,388/- was granted to the plaintiff. Hence this appeal.
6. The principal contention of Mr. S. Ramamurthy the learned counsel appearing for the appellant, is that the cinema projector and the oil engine and their accessories are movable property and they do not become immovable property on their being embedded in or fastened to any property in the Kumar Touring Talkies as the intention and object of fixing the same was to have the beneficial enjoyment of the equipment and machinery but not to benefit the land. On such premise, it is argued that the suit being one related to movable property, should have been preferred within 3 years from the date of the refusal or denial of the plaintiff’s claim by the defendant on 2-6-1961 and the present suit filed on July 20, 1966 is, therefore, barred by limitation. He also contended that it is the appellant, but not the plaintiff’s husband, that was the real owner of the suit property and the plaintiff has no claim to the suit property.
7. Mr. Gangadhara Rao, the learned counsel appearing for the respondent, opposed the claim of the appellant contending inter alia that the suit for declaration of the plaintiff’s title to the cinema concern is maintainable and is within the period of limitation, as the recovered, is immovable but not movable property and there is no justifiable ground for interference with the findings of fact arrived at by the trial Court relating to the ownership of the Cinema equipment and oil engine and the appeal merits dismissal.
8. Upon the respective contentions of the parties, the following questions arise for our decisions.
(1) Whether, on the facts and in the circumstances, the suit for the recovery of possession of the cinema equipment, and the diesal oil engine and their accessories or, in the alternative, for recovery of their value, is barred by limitation as pleaded by the defendant?
(2) Whether the plaintiff’s husband and after his death, the plaintiff is entitled to the cinema equipment and the diesal oil engine and their accessories ?
9. It is well-settled that a suit for declaration of title to , or for recovery of possession of , immovable property can be filed within 12 years from the date of the refusal or denial of the plaintiff’s right by the opposing party. However , in the case of movable property , such a suit must be filed within 3 years from the date of refusal or denial of the plaintiff’s right. The answer to the point relating to limitation depends upon the nature and character of the property whose possession is sought to be recovered by the plaintiff. If the property in respect of which the declaration is sought for and of which delivery of possession is prayed for, or in lieu of which alternative claim for recovery of money is made, is found to be immovable but not movable property the present suit filed 5 years after the denial by the defendant of the plaintiff’s right must be held to be within the period of limitation. But, on the other hand , if the reliefs sought for are construed to be in respect of movable property as contended by the appellant the suit must be held to be barred by limitation as it is filed beyond the period of three years. The pertinent question that falls for decision is whether the reliefs sought for in the plaint relate to movable or immovable property.
10. Before adverting to the facts and circumstances of the case , for the purpose of determining whether the suit relates to movable or immovable property, it is not only profitable but relevant and necessary to briefly refer to the concept and the content of the expression “movable property” and ‘immovable property’ and the case law on that aspect. The expressions ‘Movable Property’ and ‘Immovable Property’ have not been defined under the Limitation Act whose provisions are applicable to decide the point of limitation. However, they have been defined under the General Clauses Act, Transfer of Property Act and the Registration Act which we shall presently indicate . The expression ‘immovable property’ has been defined under clause (26) of Section 3 of the General Clauses Act, 1897 as follows :
“Immovable property shall include land, benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.”
Clause 36 of Section 3 of the General Clauses Act, 1897, defines ‘movable property’ as ‘property of every description except immovable property’. The same definitions have been provided under clauses (14) and (19) of Section 3 of the Andhra Pradesh General Clauses Act, 1897. ‘Movable Property’ is defined in clause (9) of Section 2 of the Registration Act as including ‘standing timber, growing crops and grass , fruit upon and juice in trees , and property of every other description, except immovable property.”
‘Immovable Property’ defined in clause (6) of Section 2 of the said Act. ‘includes land, buildings and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.”
The definitions in the Transfer of Property Act, 1882 may now be noted . Section 3 of the Transfer of Property Act defines “immovable property” thus :-
“Immovable property does not include standing timber, growing crop or grass.”
The expression “attached to the earth” means
(a) rooted in the earth, as in the case of trees and shrubs;
(b) embedded in the earth, as in the case of walls or buildings or
(c) attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached.”
11. From a reading of the statutory definitions of the terms “movable property” and “immovable property” referred to above, it is manifest that things attached to the earth or permanently fastened to anything attached to the earth are not movable but immovable property. The machinery in question , i.e., the cinema projector , diesel oil engine and their accessories does not fall within any of the categories of immovable property. Though it is really movable property , it may become immovable property if it is attached to the earth or permanently fastened to anything which is attached to the earth. The enquiry should be not whether the attachment is direct or indirect but what the nature and character of the attachment and the intendment and object of such attachment are.
12. The English law of fixtures has no strict application to the law in India relating to machinery attached to the earth or permanently fastened to anything attached to the earth, in view of the statutory definitions pointed out earlier. We may, however, notice some English decisions wherein certain tests or guidelines for determining whether any machinery is movable or immovable property have been laid down.
13. In Holland v. Hodgson, (1872) 7 CP 328 at p. 334 looms attached earth and floor of a worsted mill were held to be fixtures. Therein, it was observed by Blackburn, J. as follows :
“……………. the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult , if not impossible , to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances , as indicating the intention viz., the degree of annexation and the object of the annexation.
14. In Leigh v. Taylor, (1902 AC 157 at p. 161) the House of Lords held that certain valuable tapestries affixed by a tenant to the walls of a house for the purpose of ornament and for the better enjoyment of them as chattels had not become part of the house, but formed part of the personal estate of the tenant for life. It was observed by the learned Lord Chancellor Halsbury that there were no real divergences of opinion amongst different judges except that “facts have been regarded in different aspects according to the fashion of the times, the mode of ornamentation , and the mode in which houses were built, and the degree of attachment which from time to time to time become necessary or not according to the nature of the structure which was being dealt with. The principle appears to me to be the same to day as it was in early times, and the broad principles is that , unless it has become path of the house in any intelligible sense, is not a thing which passes to the heir.” The same view was reiterated in Spyer v. Phillipson , (1931-2 Ch 183).
15. The two guidelines evolved by the English Courts have been accepted by the Courts in India for being followed while considered the question whether any machinery imbedded in the earth or fastened to anything attached to the earth is movable or immovable property. In Narayana Sa. v. Balaguruswami, (AIR 1924 Mad 187), Kumaraswami Sastriar, J. held that copper Stills which were placed upon two iron rails in a distillery building and which could be removed by pulling down the brick and the mud wall put up on one side for the purpose of keeping them in position, were movables. The machinery fixed in a building for the purpose of baling cotton was held by the Allahabad High Court in Megraj v. Krishna Chandra, (AIR 1924 All 365) , to be movable property. In Chidambaram, (AIR 1940 Mad 527 at p. 529), the machinery installed by a tenant for running a cinema in the premises taken by him on lease for his own profit, was held to be movable property within the meaning of Section 3 of the Transfer of Property Act, as it was not a permanent improvement to the premises. We may notice the following passage in the judgment of the learned Judges, Wadsworth, J.:
“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 of the chatter itself, then it remains a chatter, 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.”
A Division Bench of the Madras High Court, in Mohammed Ibrahim v. Northern Circars Fibre Trading Co., Coconada, 1944 (2) Mad LJ 60 at p. 64 = (AIR 1944 Mad 492) was of the view that the machinery installed on a cement platform and held in position by being attached to iron pillars fixed in the ground, was immovable property, as the annexation was made by the person who owned the building as well as the machinery. The learned Judge, Krishnaswami Ayyangar, J., who spoke for the Court, observed thus :
“It is obvious that his object was to become the owner of both for the purpose of carrying on a business and for his own and individual benefit. If the argument is correct, namely , that the same intention which the vendors had must be attributed to the purchaser, the only way of establishing a different in only way of establishing a different intention would be by the purchaser removing the machinery from the ground to which it was annexed and again attaching it with the express intention of making it part of the land. We cannot imagine that the law requires any such procedure to the adopted for inferring an intention on the part of the purchaser to make the machinery part of the land .”
In Board of Revenue v. Venkataswami Naidu, , a Full Bench of the Madras High Court held that a lease of the properties relating to a touring cinema is not chargeable to stamp duty as the equipment of the touring cinema which is capable of being removed and collapsible does not fall within the category of immovable property. To the same effect is the decision of another Division Bench of the Madras High Court in Perumal Naicker v. Ramaswami Kone, , wherein a Petter engine mounted and fastened to a cement base was found to be immovable property on the ground that it was fixed to the earth for the beneficial enjoyment of the property during its lease. Where the machinery owned by one person was attached to the land belonging to another, it was held by a Division Bench of the Nagpur High Court in J. H. Subbaiah v. Govind Rao, (AIR 1953 Nag 224) that the machinery is movable property. However, a boiler engine and a decorticator fixed and imbedded in a ginning and decorticating factory building were held by a Division Bench of this Court in Chetty & Co. v. Collector of Anantpur, to be immovable property , as they had been fixed for the beneficial use of the building as a factory.
16. From the foregoing discussion , the following principles emerge : The question whether any machinery such as an oil engine imbedded in earth or permanently fastened to anything attached to the earth is movable or immovable property, is a mixed question of fact and law depending upon the facts and circumstances of each case. There is no statutory test or guideline having universal application, for the determination of the nature or circumstances by itself may not be conclusive or decisive, but the cumulative effect or the totality of the material facts and circumstances must be taken as a fair and reasonable guide to determine the nature of the property in a given case. The English law of fixtures has no strict application to this aspect of the law in so far as our country is concerned, in view of the statutory definitions of the expressions ‘immovable property’ and ‘movable property’ in the General Clauses Act. Transfer of Property Act and Registration Act.
17. The tests enunciated by the decided cases to determine the character and nature of the property are :
(I) What is the intendment, object and purpose of installing the machinery — Whether it is the beneficial enjoyment of the building , land or structure , or the enjoyment of the very machinery ?
(ii) The degree and manner of attachment or annexation of the machinery to the earth .
Where the machinery and the building or land on which it is installed , are owned by one and the same person , normally it should be inferred , unless the contrary is proved , that the object and purpose of installing the machinery is to have beneficial enjoyment of the entire building or land, but not the sole enjoyment of the very machinery is to have beneficial enjoyment of the entire building or land , but not the sole enjoyment of the very machinery itself. However , where the machinery imbedded or installed and the building or land belong to two different powers , the intendment and object of the person who is in possession and enjoyment of the property in installing or annexing the machinery must normally be presumed , until the contrary is proved , to be to exploit the benefit of the machinery alone , as he is not interested in the building or the land . Where the building or land or factory is taken on lease for a term by a lessee and he installs certain machinery on that property during the lease period , it has to be held the machinery was the beneficial enjoyment of the very machinery during the period of his lease. A tenant , who is in possession of land for a certain period , would not intent to make any permanent improvement to the land itself but try to make use of any machine or oil engine during the period of his lease . In all probability , he may remove the oil engine or machine from the land the moment his object of its beneficial enjoyment during his lease period is achieved. In such a case, fixtures on the land cannot be termed to be a permanent one so as to bring it within the meaning of immovable property. The nature of the stalled, is also a relevant and material factor to be taken into consideration in determining the character of the machinery . Where the building in which machinery such as an oil engine or a cinema projector has been installed by the owner, is not a pucca and permanent one , but it only a temporary shed or tent , his intention and purpose could only be the beneficial enjoyment of the very machinery but not the building . However , where a cinema projector and an oil engine have been installed in a permanent cinema theatre, purpose and object of installing the same must invariably be the beneficial enjoyment of the very cinema theatre. The intendment, object and purpose of the person who fastens or installs the machinery has to be inferred from the proved facts and admitted circumstances.
18. On the application of the aforesaid principles, we shall now proceed to examine the facts and circumstances of the case on hand for the purpose of determining whether the cinema equipment such as cinema projector and diesal oil engine in question is movable or immovable property. The cinema concern is a touring talkies. It is not a pucca cinema hall , but it is only a temporary shed build partly with zinc sheets and partly with oil cloth. The cabin portion is built with zinc sheets and the remaining intent is covered with oil cloths. The cinema concern , as its very name “Kumar Touring Talkies” indicates , is a temporary concern. The management of the concern obtained permission to exhibit shows temporarily during the period for which a temporary licence has been granted by the concerned authorities. It admits of no doubt that a touring talkies would not be generally at one and the same place permanently but it will be moved freely from place to place depending upon the demand and the convenience of the proprietor. Indisputable, the land on which the said kumar Touring Talkies has been raised, really belongs to the Raja of Mandasa. The claimant of the touring talkies, be it the appellant or the respondent’s husband, must be held to be a usufactuary mortgagee of the land belonging to the Raja of Mandasa. The lease obtained for running the Kumar Touring Talkies was only for a period of one year, after the expoiry of which there was no guarantee or assurance that the management of the concern would automatically get extension of period for running the shows. The management may or may not obtain such extension. In fact, on account of the disputes that cropped up between the appellant and the plaintiff’s husband, no one could successfully obtain the requisite permission from the concerned authorities for running the cinema shows after expiry of one year period originally granted . The person, be he the appellant or the plaintiff’s husband, who installed the cinema equipment on the land owned by the Raja of Mandasa, during the lease period for the specific and limited purpose of exhibiting cinema shows, being the usufactuary mortgagee of the land but not the owner thereof, must have intended to have only the beneficial enjoyment of the cinema equipment, but would not have intended to benefit the very land which was not owned by him. The lessee or the usufactuary mortgagee of the land, which was not owned by him. The lessee or the usufactuary morgagee of the land, in installing the diesal oil engine, cinema projector etc., must invariably have intended to make use of the said equipment during the limited lease period and thereafter , separate the same from the land, as he was not interested, in the improvement of the land belonging to another . On a careful consideration of the entire facts and circumstances, we are of the firm view that the intendment, object and purpose of installing the cinema equipment in question, was only to have the beneficial enjoyment of the very equipment during the period of the lease or mortgage. That apart, the diesal oil engine and the cinema projector are not rooted in the earth as in the case of trees and shurbs, or imbedded in the earth as in the case of walls or buildings, or attached to what is so imbedded for the permanent beneficial enjoyment of that to which they are attached. In the circumstances, the equipment or machinery must be held to have not been attached to the earth within the meaning of the expression “attached to the earth” under Section 3 of the Transfer of Property Act. The machinery is not only not attached to the earth, but also not permanently fastened to anything attached to the earth. Hence, the machinery in question must be held to be movable property but not immovable property. On that premise, it must be held that the suit for the recovery of possession, or in the alternative, for recovery of the value of such movable property, beyond the period of three years after the denial by the defendant of the plaintiff’s right , is barred by limitation.
19. The contention of Mr. Gangadhara Rao that the suit, as framed, is not barred by limitation and that the subsequent withdrawal by the plaintiff of her claim for declaration of her right to the cinema equipment, would not disentitle her to continue the suit in respect of the other reliefs cannot be acceded to. This submission of the counsel is based on the assumption that the prayer for declaration of the plaintiff’s right to the cinema equipment relates to immovable property. We have earlier held that the cinema projector and the diesal oil engine etc., are movable property. That apart, the very declaration, as revealed from the plaint , appears to only in respect of the cinema equipment, but not the touring talkies. We are satisfied that he declaration sought for by the plaintiff is only in respect of movable property but not immovable property.
20. Hench this submission of the plaintiff has no leges to stand. The suit must have been filed within three years from the date of the refusal or denial by the defendant of the right of the plaintiff’s husband to the suit property. We may also add that the conduct of the plaintiff in not filing the suit within three years after the denial of her right to the suit property by the defendant, is a material factor to be taken into consideration factor to be taken into consideration. For all reasons stated, question No. 1 is answered in the affirmative and in favour the appellant.
21. In view of our finding that the suit is barred by limitation, we do not find it necessary to advert to question No. 2 relating to the ownership of the property.
22. In the result, the appeal is allowed setting aside the judgment and decree of the Court below, with costs throughout.
23. Appeal allowed.