## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH**
**MONDAY, THE 5TH DAY OF MARCH 2012/15TH PHALGUNA 1933**
## **RSA.No. 98 of 2012 (C)**
**-------------------------------[THE JUDGMENT DTD. 07/3/2011 IN AS.NO.100/2008 OF SUB COURT, CHERTHALA, THE JUDGMENT DTD. 31/10/08 IN O.S. NO.40/07 OF THE ADDITIONAL MUNSIFF COURT,CHERTHALA]**
**..........**
## **APPELLANT/APPELLANT/DEFENDANT:**
**--------------------------------------------------------**
**NATARAJAN, S/O.SIVARAMA PILLAI, R/A.THAVAKARIYETHIL, THANNEERMUKKAM MURI, THANNEERMUKKAM VADAKKU VILLAGE,CHERTHALA TALUK.**
**BY ADVS.SRI.T.V.GEORGE, SRI.DENNIS VARGHESE.**
## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:**
**-----------------------------------------------------------------**
**1. K.N. SUKUMARAKURUP, S/O.BHASKARA KURUP, SRUTHY, PEROOR P.O, PEROOR KARA, PEROOR VILLAGE, KOTTAYAM TALUK.**
## **2. INDIRAKUTTY,**
**D/O.BHARATHY AMMA, W/O.K.B.SUKUMARA KURUP, SRUTHY-DO-**
## **BY ADV. SRI.JOSEKUTTY MATHEW(CAVEATOR).**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05-03-2012, ALONG WITH R.S.A. NO. 102/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Prv.**
## **THOMAS P. JOSEPH, J.**
## **-------------------------------------R.S.A. Nos.98 & 102 of 2012 -------------------------------------Dated this the 5[th] day of March, 2012.**
## **JUDGMENT**
These appeals arise from the judgment and decree of learned Sub Judge, Cherthala in A.S.Nos.100 of 2008 and 5 of 2009 respectively arising from the common judgment and decree in O.S.No.40 of 2007 and 836 of 2006 of Additional Munsiff's Court, Cherthala.
2. Parties are referred as plaintiffs and defendant as in O.S.No.40 of 2007 for convenience.
3. 2[nd] plaintiff and defendant are the children of Parvathy Amma Bharathy Amma. 1[st] plaintiff is the husband of the 2[nd] plaintiff. Suit property originally belonged to the said Parvathy Amma Bharathy Amma who obtained purchase certificate in S.M.No.3566 of 1975. On the death of Parvathy Amma Bharathy Amma, other legal heirs including the defendant released their right to the plaintiffs in the suit property and building as per Ext.A1, release ded No.912 of 2003. Plaintiffs allowed the defendant to stay in the building in the suit property till 12.12.2006 to enable him construct a building in the property of his wife. While so, defendant filed O.S.No.836 of 2006 against plaintiffs claiming right over the building and other structures in the suit property and seeking a decree for prohibitory injunction against forcible eviction. Hence plaintiffs filed O.S.No.40 of 2007 for declaration of their title over the suit property and
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building, its recovery of possession and prohibitory injunction.
4. Defendant contended that the building and other structures in the suit property including building are not covered by Ext.A1, release deed in favour of plaintiffs and that the building and other structures belonged to him though on account of reverence, the building was allowed to be assessed in the name of his father.
5. Trial court found that the building and other structures form part of the suit property and covered by Ext.A1, release deed No.912 of 2003 and in view of Ext.A1, defendant has no longer any right either in the suit property or building and other structures and accordingly granted relief in favour of plaintiffs in O.S.No.40 of 2007. O.S.No.836 of 2006 was dismissed. First appellate court has confirmed that judgment and decree in the appeals first above mentioned. Hence these Second Appeals raising the substantial question of law whether the land and building could be owned by different persons and in so far as Ext.A1 does not contain any reference to the building and other structures, it could be said that release in favour of plaintiffs takes in the building and structures as well?
6. Learned counsel for appellant/defendant has contended that the principle that whatever that is annexed to the land belongs to the owner of land is not applicable in India - the land and building could be owned by different persons and in so far as Ext.A1 does not make any mention of the building and
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other structures, courts below went wrong in concluding that release of right over the land takes in the building and other structures situated thereon. It is also contended by the learned counsel that Ext.A1, release deed does not conform to the mandatory requirements of Sec.21 of the Registration Act, 1908 (for short, “the Act”) so far as the claim of plaintiffs that the building is also covered by Ext.A1. Learned counsel has submitted that appellant/defendant has produced documents in the Second Appeal to show that the building was assessed in the name of his father and that defendant was paying tax for the said building.
7. There could be no doubt that the principle 'quic quid plantature solo, solo cedit', ie. whatever that is annexed to the freehold becomes part of the realty is not applicable in India. As per the Indian Law, the land and building on it could be owned by different persons. But, the question that arises for determination is whether for the mere reason that Ext.A1 does not make mention of the building and other structures it could be said that release as per Ext.A1 does not take in the building and other structures situated thereon?
8. It is not disputed that the property was acquired by Parvathy Amma Bharathy Amma as per Ext.A7, purchase certificate. Though appellant has a contention that he constructed the building in the suit property, what is available is only his interested version as DW1. He would admit that the building was
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assessed in the name of the father of himself and the 2[nd] plaintiff. According to him, he allowed that on account of his reverence to the father. That, defendant is paying the property tax makes no difference as the owner or occupier is obliged to pay the tax. Plaintiffs have produced Ext.A4 to show that they are paying the tax for the building. I have been given a copy of Ext.A1 and concededly, it does not make mention of the building and other structures in the suit property. Going by Ext.A1 it is seen that defendant and other parties thereto released whatever right they had in the property mentioned therein (not specifically mentioning the building and structures) in favour of plaintiffs. There is no mention in Ext.A1 that assignors have retained any right over the building and/or other structures thereon.
9. Sec.3(26) of the General Clauses Act defines “immovable property” as including land, benefits arising from land and things attached to the earth or permanently fastened to anything attached to earth. Sec.3 of the Transfer of Property Act (for short, “the TP Act”) defines 'attached to the earth' as meaning, “................ (b) imbedded in the earth as in the case of walls or building”. A reading of Sec.3 of the TP Act along with Sec.3(26) of the General Clauses Act leaves me in no doubt that the building which is imbedded in the earth also comes within the definition of “immovable property”. In **George v. South Indian Bank Ltd. (1959 KLT 120)** it is held that a house being imbedded to the earth is immovable property and when the land is transferred, the building
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errected upon it pass by necessary implication to the transferee. Sec.8 of the TP Act makes the position clear - it is stated that unless a different intention is expressed 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. The provision further says that such 'incidents' include, where the property is 'land', among other things, “all things attached to the earth.” Hence, in the absence of any indication in Ext.A1, release deed that right over the building and structures has been retained by the assignors, when they executed Ext.A1 releasing whatever right they had over the property (ofcourse not specifically mentioning the building and structures), it follows that their right over the land which includes what is imbedded in that land (building and structures) also has been released to the plaintiffs. In that view of the matter the contention that Ext.A1 is in respect of the land alone and not of the building and structures, cannot be accepted.
10. Turning to Sub-sec.(1) of Sec.21 of the Act, that provision says that non-testamentary documents relating to immovable property shall not be accepted for registration unless it contains a description of such property sufficient to identify the same. Sub-sec.(2) deals with houses in towns and states that the same shall be described as situated on the north or other side of the street or road which should be specified to which they front and by their
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existing and former occupancies. Sub-sec.(3) deals with “other houses” and lands and states that the same shall be described by their name, if any and as being in the territorial division in which they are situated.
11. Sub-sec.(2) of Sec.21 of the Act deals with houses in towns alone while Sub-sec.(3) deals with “other houses” and lands. It is Sub-sec.(1) of Sec.21 of the Act which deals with non-testamentary document relating to immovable property. Provisions of Sec.21 of the Act are for proper identification of the property covered by the document. Assuming that the document does not comply with the requirements of Sec.21 of the Act, it is not as if title would not pass thereby. If the description is vague, may be the registering authority could refuse to register the document. Once the document is executed and registered, title passes. Therefore, it is idle to contend that because of Ext.A1 does not refer to the building, there is no proper registration of the document and hence the registration is either invalid or that title to the building has not passed or that the building and other structures continue to be in the ownership and possession of the defendant and others. Courts below have, on a consideration of the evidence come to the conclusion that the building and other structures in the suit property must be taken as forming part of immovable property dealt with under Ext.A1.
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12. Having heard learned counsel for appellant/defendant and gone through the relevant provisions as also judgments of the courts below and Ext.A1, release deed, I do not find reason to take any different view in the matter. Nor am I inclined to think that any substantial question of law is involved in the matter in view of the settled position of law and statutory provisions referred above. In that view of the matter these Second Appeals do not merit consideration.
Second Appeals are dismissed.
All pending interlocutory applications will stand dismissed.
**THOMAS P.JOSEPH, Judge.**
**cks**
