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TMI Blog1981 (8) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... e deed he conveyed and granted to his son " all that plot of land situated at Jor Bagh, Plot No. 230, Block No. 172, New Delhi, owned and possessed by me, free from encumbrances as a sole and absolute lessee, leased out to, me by the Chief Commissioner, Delhi, on 3-12-1956... together with trees, rights, easements ". The donee was to hold the property gifted on the terms and conditions incorporated in the original lease deed and the transfer was effected with the sanction of the Chief Commissioner of Delhi, the original lessor. The cost of the plot was set out at Rs. 7,750 and the market value of the land at Rs. 39,195. I. P. Soni filed a gift-tax return on November 2, 1964, declaring the above gift and valuing the same at Rs. 39,195. The GTO found that as on the date of the gift, a house had been constructed on the plot of land in question by the donor with his own finances. A question, therefore, arose as to whether the gift made on July 12, 1963, was only a gift of the plot of land and not of the superstructure as claimed by the assessee. The GTO found that there was no reservation in the gift deed retaining the ownership of the building, suggesting that it would be held by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng clear and unambiguous, we are unable to accept the contention that under the document it was intended that there was to be a transfer to the donee also of the building which had been constructed on the plot by the donor prior to the date of the gift." The departmental representative also relied on the terms and conditions under which the Land Development Officer had granted permission for the gift., But this, in the view of the Tribunal was of no consequence. The Tribunal referred to the decisions in Vithoba Bava v. Hariba Bava [1869] 6 Bombay High Court Reports 54 and in Periakaruppan Chetti v. Arunachalam Chetti [1926] ILR 50 Mad 582; 102 IC 290, in support of their conclusion. The Commissioner of Gift-tax being dissatisfied with the order of the Tribunal, a reference has been made to this court of the following question : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the transfer of the plot does not automatically involve the transfer of the superstructure thereon ? " The income-tax references arise in the case of the donee, M. M. Soni. The said assessee is an individual having his main source of income by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the assessee?" The short question that arises for consideration in all these references is as to whether the gift of a plot of land on which a building has already been constructed would amount to a gift only of a plot of land or of the plot of land along with the building. This question has to be answered in the light of the provisions of the Transfer of Property Act and in particular s. 8 thereof. This section, in so far as is relevant, reads as follows: Unless a different intention is expressed or necessarily implied, 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, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth ; ........" The expression " attached to the earth " has been explained in the definition section-s. 3. The relevant definition is as follows: Attached to the earth' means:- (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he general maxim in English law that whatever is affixed to the soil belongs to the soil. The court, there, was actually concerned with the question as to whether a construction put up by a husband on plot belonging to his wife should be treated as the property of the wife by the application of the above doctrine. Answering the question in the negative, the court held that when the husband put up a building on the land belonging to his wife knowing it to be his wife's property and there is no suggestion that this was in pursuance of any agreement or by way of gift and the construction was effected with the consent of the wife, the husband, upon divorce, was entitled to remove the materials if the wife was not prepared to give compensation for the same. That decision was not concerned with the situation with which we are concerned in the present case, which is directly answered by the, provision of s. 8 of the Transfer of Property Act. Mr. Suri next contended that s. 8 also requires effect to be given to the intention of the parties and he contended that the conclusion of the Tribunal that in the present case the father intended to convey only the land and not the building was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady been pointed out, these incidents include the rights not merely in respect of the property but also of all thing s attached to the earth. We are also unable to see any valid reasons on the basis of which it could be said that in the circumstances mentioned in the gift deed the donor could have thought of withholding the building from the terms of the gift deed. We are, therefore, unable to say that any different intention has been expressed or is necessarily to be implied from the terms of the gift deed and we are of opinion that full effect must be given to the provisions of s. 8 of the Transfer of Property Act in the present case. Even if we are to focus our attention not merely to the gift deed but also to the surrounding circumstances, we are unable to see any circumstances from which a contrary intention could be spelt out. The Tribunal has not considered any such circumstances but Mr. Suri told us that the contrary intention should be gathered from the conduct of the donor in continuing to live in the property and to enjoy the income therefrom and in returning the income from the property for all subsequent assessment years. These circumstances clearly are not sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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