M.S. Menon, J.
1. The defendant in O. S. No. 46 of 1952 of the court of the District Munsiff of Kasaragod is the appellant before us. The suit was for the recovery of possession of the item of property described in tile Schedule to the plaint including the house thereon with mesne profits at Rs. 150/- per year from the date of the plaint till the date of recovery.
2. Both the trial court and the District Judge of South Kanara in the appeal from the judgment of the trial court-- A. S. No. 153 of 1954-- have held that the land belongs to the plaintiff, and that she is entitled to recover the same with mesne profits at Rs. 75/- per year. There is nothing on record toshow that these conclusions are in any way incorrect.
3. The courts below have also come to the conclusion--we think quite correctly--that the house on the property was constructed by the defendant with his own funds. The question for determination is whether he has the right to remove the materials of the house in case the plaintiff is not willing to pay him its Value.
4. The trial court held that the defendant is entitled to compensation and fixed it at Rs. 2,561-9-0. The appellate court said that 'the defendant is not entitled to get the value of the house', and :
'Nor is there any equity which justifies Ms being allowed to dismantle the house and take away the materials.'
5. The defendant married the plaintiff sometime in 1922. He divorced her in 1951, some 13 months prior to the date of the suit. The house was constructed soon after the marriage, and was their matrimonial home for over 28 years. There can be no doubt that the construction was effected with the consent of the plaintiff.
6. The right to compensation or to remove the materials is an attribute of ownership. As to whom the house should belong was not the subject of any agreement either prior to its construction or at any time thereafter. The question of ownership has hence to be resolved on the basis of the general law applicable to the subject.
7. Quicquid plantatur solo, solo cedit-- whatever is affixed to the soil belongs to the soil--is a rule of considerable antiquity and if it applies, the plaintiff will have to be considered as the owner of j the house and the defendant's claim must fail. Under the maxim 'whatever is affixed to the soil becomes, in contemplation of law, a part of it and is subjected to the same rights of property as the soil itself'. (Broom's Legal Maxims, Tenth Edition, Page 262).
8. The maxim, however, has to be considered as inapplicable to this country. As stated in Sirkar v. Mahadeva lyer, 1953 KLT 599 : (AIR 1953 Trav-Co. 349) :
'What is affixed to the soil belongs to the soil' is not a maxim of general jurisprudence and there is the authority of the Privy Council -- Vallabdas Narainji v. Development Officer, Bandra, AIR 1929 PC 163 -- to hold that it does not represent the law of India.'
9. In Thakoor Chunder Poramanick v. Ram-dhone Bhuttacharjee, 6 Suth WR 228 (FB), Sir Barnes Peacock said:
'We have not been able to find in the laws or customs of this country any traces or the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself.'
The Privy Council cited the statement with approval in Narayan Das v. Jatindra Nath, AIR 1927 PC 135 and added that it 'seems to have been accepted for many years as a correct pronouncement'.
10. In 6 Suth WR 228 (FB) Sir Barnes Peacock also said :
'We think it clear that, according to the usagesand customs of this country, buildings and other such improvements made on the land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil; and we think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil--the option of taking the building, or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance or any estate he may possess.'
Both the passages from the judgment of Sir Barnes Peacock were quoted with approval in AIR 1929 PC 163.
11. According to the second of the two passages a 'mere trespasser' is not entitled to relief. The view taken in Gobind Purmanick v. Gooroo Churn Dutt, 3 Suth WR 71, a case referred to in 6 Suth WR 228 (FB) and in no way overruled as pointed out by Privy Council in AIR 1929 PC 163 was different as is clear from the statement therein that the defendant,a trespasser, was 'at liberty to remove the bricks of his house.'
12. In AIR 1929 PC 163 counsel for the respondents whilst contending that his clients could not be considered 'mere trespassers' also submitted 'that, even if it were so, once it was admitted that the English maxim did not apply, the logical consequence followed that in any case of trespass by building on the lands of another, such trespasser had a right to remove the structure or be paid the value thereof by the owner'. The Board did not deal with the matter. Their Lordships said that they did not think it necessary 'to give a decision upon this far-reaching contention'.
13. In this case also it is unnecessary to decide the question. The defendant constructed the building on the plaintiff's land with her consent. He was no trespasser, absolute or qualified.
14. Our attention has been drawn to the line of cases headed by Ramsden v. Dyson, 1866 LR 1 H. L. 129 and to Section 51 of the Transfer of Property Act, 1882. The principle behind those decisions and Section 51 are by no means identical. 1866 LR 1 HL 129 is based on the doctrine of estoppel by acquiescence and Section 51 on the equitable maxim that he who seeks equity must do equity.
15. Section 51 deals with improvements made by bona fide holders under defective titles and has an application, to the case before us. The principle enunciated in 1866 LR 1 HL 129 is also different as will be clear from the following passage from the decision of Lord Cranworth :
'If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considersthat, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in Order afterwards to profit by the mistake which I might have prevented. But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would, prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights'.
16. In the case before us the defendant built the house on the 'and of the plaintiff knowing it to be the plaintiff's and not supposing it to be his own. In Narayan v. Bholagir Guru Mangir, 6 Bom HCR AC 80 Couch, C. J., quoted the passage from 1866 LR IHL 129 reproduced in the last paragraph, and said :
'We cannot, however, apply to cases arising in India the doctrine of the English law as to buildings, viz., that they should belong to the owner of the land. The only doctrine which we can apply is the doctrine established in India, 'that the party so building on another's land should be allowed to remove the materials.'
This passage is extracted in AIR 1929 PC 163 and followed in Premji Jivan v. Haji Cassum Jama Ahmed, ILR 20 Bom 298 and Abdul Razak v. Nandlal Sheolal, AIR 1938 Nag 506.
17. Section, 60 of the Indian Easements Act, 1882, provides:
'A licence may be revoked by the grantor, unless-
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution.'
The first exception is based on the principle that one cannot derogate from his own grant and the second on the principle of estoppel by acquiescence. No contention based on the section has been urged before us, and the section does not arise for consideration.
18. The decision relied an by the lower appellate court for coming to the conclusion that it) did is K.K. Das v. Amina Khatun Bibi, AIR 1940 Cal 356. In that case the husband constructed a building on his wife's land knowing it to be his wife's. The Court said:
'The husband never intends in such a case to reserve any right in the structures'.
We do not understand their Lordships as having been laid down a uniform or unvarying presumption applicable to all such cases.
19. Quite aprat from this, in the absence of the maxim 'whatever is affixed to the soil belongs to the soil' the question is not whether the husbandintends to 'reserve' any right in the structure but whether the structure passed to the wife by any process known to law, for example, by a gift or in pursuance of the arrangement under which it was put up. The plaint does not disclose any such case.
20. In these circumstances we must hold that the lower appellate court was wrong in its conclusion that the defendant was not entitled to remove the materials of the house, if the plaintiff was not prepared to pay him compensation for the same. The option of taking the building or permitting removal of the material is, of course, with the owner of the land as pointed out by 6 Suth WR 228 (FB).
21. The value of the house lias been fixed at Rs. 2,561-9-0. There is no dispute as regards this figure. The plaintiff will pay the amount to the defendant within nine months from this date, if she desires to keep the house. In case she does not so desire the defendant will be at liberty to remove the building and restore the property to its original condition within three months of the expiry of the period of nine months or earlier intimation that the plaintiff does not desire to keep the house and pay compensation.
22. The plaintiff' is now no more. Her legal representatives have been brought on record, and references to her must be construed as references to her legal representatives.
23. The appeal is allowed) in the manner and to the extent indicated above. The trial court's order as regards costs will stand. The parties will bear their respective costs in the lower appellate Court. The appellant will have his costs in this court.