Case Summary
| Citation | Bamadev Panigrahi v. Monorama Raj AIR 1974 AP 226 |
| Keywords | sec 3 tpa, immovable or movable property, cinema projector , Kumar touring talkies, mortgage |
| Facts | A person, A, was conducting a business under the name of ‘Kumar Touring Talkies’. He obtained land under possessory mortgage from the Raja of Mandasa in 1957, and built a temporary cinema structure and erected a temporary pandal over it. For the purposes of exhibiting cinema shows, he purchased a cinema projector and a diesel oil engine. This equipment was embedded and installed in earth by construction of foundation. For the purpose of running the cinema shows, A, applied and got a license for a period of one year from the concerned authorities. He allegedly entrusted the management of this business to his friend B, out of trust and confidence in him. However, B colluded with the Rajah and obtained the mortgage in his name. A issued a notice in May 1961, calling upon B to render correct account of the management of the entire cinema concern including the machinery, equipment, records, etc. B denied his liability to account for the management of Kumar Touring Talkies by a written reply in June 1961. A died due to sickness in 1965. Thereupon, A’s widow W filed a suit in July 1966, praying for a declaration that she was the owner of Kumar Touring Talkies, and a direction that the equipment including the cinema projector and the diesel oil engine be returned to her. |
| Issues | Whether demand of W is moveable property or immovable property? |
| Contentions | |
| Law Points | If the disputed property is immovable, it will go ahead and decide the case on merits. If such property is movable, then the case will be dismissed as time barred, it having been filed after more than three years from the date the right or claim was denied, i.e., B had denied the claim of A in June 1961 while the suit was filed in this respect in July 1966. The court here noted that the operation of the business by its very name, ‘Kumar Touring Talkies’ showed that exhibiting cinema shows at a specific place was purely temporary. Therefore, even if the two items of disputed property were attached and embedded in earth, the intention can only be to have them affixed to earth temporarily. The license to exhibit the shows was only for a period of one year, and there was no guarantee that the owner would have applied for its renewal or the authorities would have renewed it. The person who fixed them to the land was not the owner of the land. These items were in fact been removed from the land subsequently. The tests are to see what is the intendment, object, and purpose of attachment; whether it is for the beneficial enjoyment of the building, land or structure, or the enjoyment of the very attachment, and the degree or manner of attachment or annexation or the enjoyment of it to the earth. |
| Judgement | The court held that a cinema projector and a diesel oil engine fixed on earth for the purposesof exhibiting shows in a touring cinema, were movable properties and the suit being timebarred was dismissed. |
| Ratio Decidendi & Case Authority |
Full Case Details
KONDAIAH J. – This appeal by the defendant is directed against the judgement and dcree 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 Rupees 19,833/- towards the value of the equipment of a cimema 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 in respect of a
site measuring about Ac. 3-51 cents known as ‘Pula Thota’ which contains a bungalow in it, for a sum
of Rs.4,000/- with a view to run a touring 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
Saheb of Mandasa. The plaintiff’s husband built a temprory cinema structure and erected a temporary
pandal in a portion 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 oil engine with its accessories for an 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 he entrusted the
management of the cinema concern to the defendant out of trust and confidence in him. The defendant
taking advantage of his position, as being the person in management, colluded with the Raja Saheb of
Mandasa and got an endorsement of discharge made on the mortgage bond dated 1-9-57 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 his 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 plaintiff’s husband was denied
categorically by the defendant as early as 2-6-1961, no suit had been filed by him during his life-time
for the recovery of possession of the cinema equipment or for recovery of the amount advanced by
him. However, the plaintiff’s 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 decreed 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 a declaration that she is the owner of the cinema equipment such
as projector and diesel 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 value of the machinery, with subsequent interest and for costs. The suit claim was
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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 plaintiff’s husband, that it was he
who really obtained the hire purchase agreement from the Commercial Credit, Corporation, Madras in
the name of the plaintiff’s husband, that he had paid the instalments as per the agreement, that he did
not 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 was unsuccessful on
account of the attitude of the plaintiff’s husband and that there is no merit in the suit.
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 plaintiff’s husband and
after his death, the plaintiff as the owner of the suit property, a decree for the recovery of Rs. 19,833/-
was granted to the plaintiff. Hence this appeal.
6. The principal contention of Mr. S. Ramamurty 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
claim 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 property whose possession is
sought to be 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 diesel 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 diesel 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
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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 3 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 content of the expressions “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
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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 is 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 to 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, 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 divergence 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 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 principle is that, unless it has become part 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 considering 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 Meghraj v. Krishna Chandra [AIR 1924 All 365], to be movable property.
In Subrahmaniam Firm v. Chindambaram, [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 Judge, 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 is merely for the beneficial enjoyment of the chattel itself, then it remains a
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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”.
A Division Bench of the Madras High Court. In Mohammed Ibrahim v. Northern Circars Fibre
Trading Co. Coconada [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 pillors 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 Ayyanagar, 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 the 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 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 be 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 [AIR 1955 Mad 620], 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 [AIR 1969 Mad
346], 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. Subbiah 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 Anantapur [AIR 1965 AP 457 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 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
and character of the property, whether movable or immovable. Each factor or circumstance 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.
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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 iself. However, where the machinery imbedded or installed and
the building or land belong to two different persons, 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 lease and he installs certain machinery on the property during the lease period, it has to be held
that his object and purpose of installing 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 intend 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, the fixture 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 property on which the machinery was
installed is also 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 is 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 theater, the
purpose and object of installing the same must invariably be the beneficial employment of the very
cinema theater. 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 in hand for the purpose of determining whether the cinema equipment such
as cinema projector and diesel oil engine in question is movable or immovable property. The cinema
concern in a touring talkies. It is not a pucca cinema hall, but it is only a temporary shed built partly
with zinc sheets and partly with oil cloth. The cabin portion is built with zinc sheets and the remaining
tent is covered with oil cloth. 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 license 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 depending upon the demand and the
convenience of the proprietor. Indisputably, 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 usufructurary 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 expiry 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 the expiry of one year
period originally granted. The cinema projector and the diesel oil engine etc. have, in fact, been
removed from the land subsequently. The person, be he the appellant or the plaintiff husband, who
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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 usufructuary 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 usufructuary mortgage of the land, in installing the diesel 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 diesel oil engine and the cinema projector
are not rooted in the earth as in the case of trees and shrubs, 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 diesel oil engine etc. are movable property. That apart, the very
declaration, as revealed from the plant appears to be only in respect of the cinema equipment, but not
the touring talkies. We are satisfied that the declaration sought for by the plaintiff is only in respect of
movable property but not immovable property.
20. Hence this submission of the plaintiff has no legs 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 filling 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. For all the 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.
