9911796707
TMI Blog2018 (4) TMI 1951X X X X Extracts X X X X X X X X Extracts X X X X ..... d erected a windmill and constructs a building to house the plant, it would certainly be an immovable property. The establishment of a windmill requires fixing the windmill machinery to the earth. The erection of windmill is through a process. Erection is not a temporary phenomena. There should be a small structure for the windmill station. The possibility of removing the windmill and the related machinery imbedded in the earth, later would be of no consequence. Such possible act is not a relevant factor to decide the issue. In MOHAMMED IBRAHIM VERSUS NORTHERN CIRCARS FIBRE TRADING CO. [ 1944 (4) TMI 9 - MADRAS HIGH COURT] , a Division Bench of this Court held that 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. In South Indian Bank Ltd., by its THE SOUTH INDIAN BANK LTD., BY ITS GENERAL MANAGER, M.G.P. NAMBIAR VERSUS V. KRISHNA CHETTIAR AND BROTHER BY ITS PARTNER V.K. PALANIAPPAN AND ORS. [ 1974 (12) TMI 80 - HIGH COURT OF MADRAS] the Division Bench indicated that the onus is on the person, who alleges that though the movable property is annexe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made payment to the windmills and obtained receipt. The respondents prepared Sale Deeds relating to the respective immovable property indicating the land value. However, in the Schedule to the documents, windmills were also shown as the transferred property. Similarly, in the signed statement given under the Stamp Act, the respondents have indicated the value of windmills. The Sub-Registrar therefore directed the respondents to pay the Stamp Duty taking into account the total value of the transfer. The respondents paid the Stamp Duty and got the documents registered. Thereafter, the respondents submitted petitions for refund of the excess amount on the ground that windmill is only a movable property and therefore, there is no liability to pay Stamp duty for the value shown for the windmills. The petitions were rejected. The related writ petitions were allowed by the learned single Judge by giving a finding that the windmill is a movable property and therefore, Stamp Duty is not payable on its value. The common order passed by the Writ Court is the subject matter of the appeals. Submissions 3a) The learned Advocate General by placing reliance on Section 2(6) of the Registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director General of Registration on the ground that windmill is only a movable property and as such, the Sub- Registrar illegally collected the Stamp Duty notwithstanding the protest. The petitions were rejected. 6. The Sale Deed relating to the immovable property contains a recital that it was sold with windmill machineries with right for transportation/movement of cranes and heavy machineries, vehicles etc., The value of the windmill was shown in the statement by the respondents. 7. It is the contention of the respondents that windmill is a movable property and therefore, there is no liability to pay Stamp Duty. The Statutory Provisions 8. Section 3 of the Transfer of Property Act contains the meaning for "attached to the earth". The provision reads thus: "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 buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached; 9. Section 2(6) of the Registration Act, 1908 gives an inclusive definition to immovable property. It reads thus: "(b) "immovable property" in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arth. The second part indicates that though the attachment is not direct, still if the movable property is fastened to something which is directly attached to the earth, it will be immovable property for the purpose of the Registration Act. The Transfer of Property Act contains a definition of "things attached to the earth", but not of "things permanently fastened to anything which is attached to the earth". Clause (c) of the latter definition which refers to a mediate and not a direct attachment is substantially what is referred to in the second part of the definition in the Registration Act. Accordingly, for the purpose of determining whether a movable attached to immovable property is itself immovable property or not the inquiry should be not whether the attachment is direct or indirect but what is the nature of the attachment and what its object and purpose. The degree and nature of the attachment is no doubt a consideration but only a minor consideration. The more important consideration is the object of the annexation which is a question of fact to be determined by the circumstances in each case. If a thing is imbedded in the earth or attached to what is so imbedded for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nery etc. But, in the ultimate analysis, if the intention of either of the owner or the tenant in making such annexation of movable property to immovable property is to permanently fix it along with the earth or the said immovable property, then it becomes part and parcel of it. Cases may arise where an article or machinery may be very firmly fixed to the land, but, yet the surrounding circumstances may be such as to show that it was never intended to be a part of the land. Thus, it reduces itself to a question of fact and a matter of proof. The onus is on the person, who alleges that the particular article was always intended to retain the character of movable property. He has to establish it. It ultimately depends upon the intention of the parties. Such intention on the part of either the owner or the tenant, to treat such machinery fixed to the earth as movable property can sometimes be inferred by their voluntary treatment of such property as belonging to one or the other species of property and by their conduct." 15. The recitals in the Sale Deeds clearly indicates that windmill machineries were erected by attaching it to the earth, and it was part of the immovable property. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
