Charles Arnold White, Kt., C.J.
1. I think Wallis, J., was right. The facts are stated in his judgment. I need not repeat them.
2. I am not satisfied that Sir Barnes Peacock, in the passage in his judgment in In the matter of the petition of Thakoorchand Parmanick (1866) B.L.R. 595, which is cited in Ismai Kani Rowthan v. Nazarali Sahib I.L.R. (1903) M. p. 211 , intended to lay down that, in cases where the builder did not remove material before the expiry of his lease, the option in the owner of the soil to take the building was an option which he could only exercise subject to the payment of compensation to the builder. There is a passage on page 217 of Sir Bhashyam Iyengars judgment in Ismai Kani Rowthan v. Nazarali Sahib I.L.R. (1903) M. p. 211 : 'According to the customary or common law of the land, as laid down in In the matter of petition of Thakoorchand Parmanick (1866) B.L.R. 595, the option in such cases will be with the lessor either to take the building on paying compensation, or, if he is unwilling to pay compensation, to allow the tenant to remove the building etc.,' which would seem to suggest that, at common law, the lessor's right to take the building, where it had not been pulled down during the continuance of the tenancy was subject to the lessee's right to compensation. This proposition, however, seems inconsistent with the statement of the law on page 216 : 'Thus both under the Hindu and the Mahammadan law - and it may here be observed that the parties to the present suit are Mahamadans - and the common law of the land as laid down by the Full Bench of the Calcutta High Court in In the matter of the petition of Thakoorchand Parmanick (1866) B.L.R. 595, a tenant who erects a building on land let to him can only remove the same and not claim compensation for it on eviction by the landlord. When the Transfer of Property Act was enacted, this rule was adopted by the legislature in Section 108(h)' and also with the statement on page 217 : 'The rules laid down by the Transfer of Property Act thus substantially reproduce the law as it stood before the Act.'
3. But assuming that at common law the lessor's right to take the building, after the expiration of the tenancy, was subject to the lessee's right to compensation, the law was altered by Section 108(A) of the Transfer of Property Act. In his work on the 'Law of Transfer in British India' Mr. Gour observe (paragraph 2166) : 'Formerly in cases decided before the Act, the lessee was held to be entitled to either the removal of his fixtures, or to compensation, the latter being usually awarded at the instance of the outgoing tenant in cases where the removal of materials would have materially prejudiced him Under the terms of the clause, however, the tenant is no longer entitled to the alternative relief. He must remove or forego the materials which he is entitled to, unless he can establish local usage, or make out a case of estoppel against the landlord.'
4. In Shephard and Brown's 'Commentaries on the Indian Transfer of Property Act' - page 441, Seventh Edition - the learned authors observe : 'A claim to remove fixtures after the expiration of the lease may be founded on contract or local usage. The section does not recognize it or the alternative right of compensation which was recognized in certain cases decided be fore the Act came into force.'
5. The nature of the estoppel referred to by Mr. Gour is thus described by Lord Watson in Beni Ram v. Kundan Lal I.L.R. (1898) A. p. 496 on p. 502.
In order to raise the equitable estoppel which was enforced against the appellants by both the appellate courts below, it was incumbent upon the respondents to show that the conduct of the owner, whether consisting in abstinence from interfering, or in active intervention, was sufficient to justify the legal inference that they had, by plain implication, contracted that the right of tenancy, under which the lessees originally obtained possession of the land, should be changed into a perpetual right of occupation.
6. I agree with Wallis J. that the evidence in this case is not sufficient to establish an estoppel. But, apart from this evidence, in the rental agreement of 1st May 1898, an agreement entered into after the erection of the building, there was an express stipulation that the plaintiff might be evicted on one month's notice. In the face of this, I do not see how the lessee can rely on any plea of equitable estoppel as an answer to the claim in ejectment.
7. In my opinion, on the facts of this case, the position of the lessee is not improved as regards any right to compensation or to remove the building after the termination of the tenancy, on the fact that the house had been built by the plaintiff before the rental agreement of 1898 was entered into.
8. I also agree with Wallis J. that the rights of the defendant are not affected by the fact that he gave the plaintiff an opportunity of removing the building after the expiration of the lease - an opportunity of which the plaintiff did not take advantage. It is to be observed that the equity discussed in Ramsden v. Dyson (1865) L.R. 1 E. and A.I. (H.L.) 129, and Bent Ram v. Kundan Lal I.L.R. (1898) A. 496, was not an equity giving a right to compensation, but an equity giving a larger right of possession than that created by the lease, and it may be that the true view is, as I suggested in my judgment in Appeals Nos. 197 and 174 of 1905, that unless the lessor is estopped from suing for possession no question of compensation arises, but that if the lessor is estopped the court can say - 'you are estopped but we will not enforce this equity against you if you pay the lessee compensation.'
9. I would dismiss this appeal with costs.
Sankaran Nair, J.
10. The plaintiff brings this suit for a declaration that she is the owner and for possession of a house mentioned in the plaint; or in the alternative to be paid compensation for it; or, if that prayer is not granted, to be allowed to remove the superstructure. The plaintiff's husband took the house on lease from the predecessor-in-title of the 1st defendant in 1883. That lease was renewed by the 1st defendant in 1898. While in possession under that lease, the 1st defendant filed an ejectment suit, No. 146 of 1906 on the file of the Small Cause Court, Madras, and, though she set up the claim now advanced, she was ordered, without the determination of the rights set up by her, to deliver possession of the land on or before the a6th of February 1907, and, on her failure to do so, the defendant was put in possession on that date. The plaint states that the plaintiff erected a house which is stated to be of the value of Rs. 5,000 soon after she obtained the lease of 1883, and therefore the defendant is not now entitled to turn her out of the house. Wallis J. held that the rights of the parties are governed by Exhibit II, the lease of 1898, which creates only a monthly tenancy and that the evidence only shows that the house was erected with the knowledge of the defendant, and without any protest from him and this is not enough to create an estoppel against the defendant's claim to recover, according to the law as declared by the Judicial Committee in Bent Ram v. Kundan Lal I.L.R. (1898) A. 496, which followed Ramsden v. Dyson (1865) L.R. 1 E. & A.I. 129. I may state at once that, though there is some evidence to the contrary, I agree with Wallis J. in his appreciation of the evidence and his decision on this point.
11. The facts necessary for the determination of the other questions are practically admitted. Exhibit II is the lease of the year 1898. It recites that the plaintiff has been holding the land under a prior lease at a certain rent and the plaintiff therein agrees to pay a higher ground rent for the future. Then it states that if the lessee commits default in payment the owners 'should remove the superstructure of me the deponent (the lessee) from the land belonging to them and recover the ground rent by putting up the aforesaid superstructure at auction.' Then there is a further stipulation that the lessee shall not alienate the superstructure without the consent and knowledge of the owners, and if she demolishes the superstructure and carries away the materials she 'shall leave mud walls existing on the said land of the aforesaid owners.'
12. Thus the following facts are clear from this lease; that in 1898 when the lease was renewed the rent was claimed only for the ground, not for the building which had been already erected. It was treated as the absolute property of the plaintiff (tenant) and a charge was created on it for any rent that may remain due to the owner. The right of voluntary alienation was recognised subject to the owner's consent. The right of carrying away the materials was also recognised. Whether this last stipulation was confined to the period of the lease or not it is not stated. From the nature of the lease, the fact that the structural alterations admittedly were made with the knowledge of the defendant, and the terms of the lease, it is clear that the building must have been constructed with the defendant's consent, otherwise his ownership would not have been recognised. But that is immaterial as the lease, Exhibit II, admits that the house continued to be the property of the plaintiff and the ground alone was let. It is also admitted that the plaintiff was given time after the determination of the tenancy and after decree to remove the superstructure.
13. Wallis J. held, following as he was bound to do the decision of Mr. Justice Bhashyam Aiyangar, cancurred in by Mr. Justice Moore in Ismai Kani Rowthen v. Nazarali Sahib I.L.R. (1903) M. 211, that under the common law of India a tenant has only a right to erect buildings and remove them during the continuance of the lease; that he is not entitled to any compensation for his improvements or to remove them after the determination of the tenancy; and that it is only that right which is now recognised in Section 108, Clause (h), of the Transfer of Property Act; and, as the right to remove the buildings is thus restricted to the duration of the lease, the plaintiff cannot claim to remove the superstructure afterwards. He therefore disallowed her claim to compensation or to remove the superstructure. The question whether the ownership of the plaintiff in the house and the consent of the defendant to the erection of the building would make any difference is not dealt with in the judgment.
14. There are one or two passages in the judgment of Mr. Justice Bhashyam Aiyangar, which may make one hesitate to accept the above statement of the law as his final conclusion. But on the whole I think that Wallis J. is right in the view he took of that judgment.
15. A decision that a tenant is bound to remove any building that he may have erected on the land during the continuance of the lease and that if he fails to remove it within that time he is not entitled either to compensation or to remove them afterwards, is, in my opinion, so entirely opposed to the usage in this presidency and so disastrous in its results, that I am not prepared to follow that view without a further and more careful consideration of the question than it seems to have received in that judgment. If the Transfer of Property Act declares the law to that effect, no other question remains for consideration. The Section 108(h) itself, however, only enables a tenant to remove his building during the term of the tenancy. But it is contended that it thereby impliedly negatives the right to receive any compensation or to remove the same afterwards. It is true that the Act does not confer this right on the tenant. But if he had that right before, as I shall show later, the Act does not, in my opinion, take it away.
16. Under the Muhammadan law, as the Judicial Committee pointed out in The Secretary of State for Foreign Affairs v. Charlesworth, Pilling and Co. I.L.R. (1900) B. p 1 : 'if a person usurp land and erect a building he must be directed to clear the land and restore, and an option is given to the landlord to purchase it because in that case there is an advantage to both and the injury to both is obviated. It is quite clear from the fact that the usurper is given a right of removal, such right is quite independent of any tenancy, and after the tenancy has expired the building may be removed by a person who has ceased to be a tenant.'
17. The Hindu law also is not against the tenant's right in this respect. The Hindu law texts that are always referred to with reference to the question are Narada Smrithi, (Chapter VI), Slokas 20 and 21:
If a man has built a house on the ground of a stranger and lives in it, paying rent for it, he may take with him, when he leaves the house, the thatch, the timber., the bricks, and other (building materials.)
But if he has been residing on the ground of a stranger, without paying rent and against that man's wish, he shall by no means take with him, on leaving it, the thatch and the timber.
18. These slokas have been quoted in various Sanskrit works as laying down the law. When a person lives on another's land without paying rent, the reason for the delivery of the materials to the owner of the ground is stated to be that it is to be regarded as a compensation for the ground having been used without authorization from the owner. See Sacred Books of the East, Vol. 33, p. 143, footnote. It is clear, therefore, that in any event, even in the case of a trespasser who builds a house, it is to be treated as the property of the man who built it.
19. I will now refer to the law as declared in Southern India. As the cases refer not only to the claim to remove the buildings after the tenancy but also to the right to receive compensation, both the questions will be dealt with together. It is still the law of the Laccadive Islands that the person who plants the trees is the owner thereof, though they are planted on another's laud. In Malabar, it is well known that not only tenants but even others who are in possession of the property, except by criminal trespass, get the value of their improvements. There bas never been at any time any doubt entertained on this matter. In South Canara, in S.A. No. 742 of 1894, a question was raised whether a usufructuary mortgagee was entitled to the value of his improvements, and alter evidence was taken on custom, the High Court (Subrahmanya Aiyar and Davies, JJ.) held that the mortgagees are entitled to it and they added : 'By improvements we understand any work beneficial to the property, or in other words to which a reasonable owner would have consented.' In all these cases from South Canara, so far as I am aware, and from Malabar, before the recent legislation on the question, whenever buildings had to be removed by the tenants on account of their unsuitability to the holding, and therefore not being improvements, the tenants were allowed to do so after the decree, i.e., after the determination of the tenancy and a time was always fixed by the decree within which they had to be removed. The first reported case dealing with the claim for improvements elsewhere that I am aware of is the decision in Appa Pillai v. Gopalaswami Reddi (1860) S.A. No. 186 of 1859 p. 41 Sudder Reports. The Sudder Court consisting of three Judges laid down the law in these terms : 'It appears that the 1st defendant's family have been in occupation of the land in issue for three generations, and have constructed on it substantial buildings, tiled and terraced. The court are of opinion that in exercising his right to eject the plaintiff is bound to afford the 1st defendant compensation for these buildings, which he has thus suffered him to construct and occupy.' They accordingly directed the plaintiff to pay the defendant the value of the buildings as estimated at the time that possession may be given. The right to remove the building even after the suit was not denied and the lower court allowed the defendant to remove them. It will be observed that the right to compensation is rested on the fact that the buildings were raised with the implied consent of the plaintiff (landlord), long possession being an element in the consideration of the question and not upon the nature of the particular tenancy. In the case of Mahalakshmi Ammal v. Palani Cketty (1871) 6 M.H.C.R. p. 245, the plaintiff, the landlord, in seeking to recover possession of property let to the tenant prayed not that he might recover the lands with the buildings thereon constructed by the tenant but that the tenant might be directed to remove the buildings. There was a decree by the Munsif directing the removal of the building. On appeal that decree was modified by the Principal Sudder Amin directing the payment of compensation to the defendant. On second appeal this decree was confirmed by Mr. Justice Holloway, on the ground that where eviction is not in the contemplation' of parties and the improvement is permanent, precedents are in favour of allowing compensation. Mr. Justice Innes, also on the ground that such should be presumed to have been the intention of the parties, and the fact that the construction of the house was contemplated by the agreement itself, supported the view. It will be observed that this was also the reason assigned by the Sudder Court Judges. Mr. Justice Innes further observed that if this were not so all that the tenant could do was to pull his house to pieces and remove the materials which would not of course realize anything like the value of the building. It seems to me the principle deducible from these cases is that when permission is given to construct the permanent building in question, such consent being deducible from the terms of the instrument, the duration of the tenancy then in the contemplation of the parties, and the purpose of the letting, the court will imply an agreement between the parties. In S.A. No. 452 of 1870 the law was thus laid down : 'It is certainly the customary law of Malabar, and we are disposed from a number of precedents to believe it to be that of Canara also, that the evicting landlord shall pay the value of the permanent improvements to the tenant.' In the case of Blake v. Savundrathammal I.L.R. (1898) M. 116, the facts were these : The lands belonged to the Society for the Propagation of the Gospel and they were originally held under them by a Kasavargam tenant. It was contended that the defendant was not entitled to compensation as he was a purchaser of a defendant's right only on 25th June 1885 the date the tenancy was put an end to. But this contention was disallowed and his claim for compensation was allowed. In dealing with the tenant's right to compensation, it was pointed oat by the High Court that the Kasavargam tenant has a proprietary right to his house and referred to the Sudder Court's ruling above cited to support his right for the value of the improvements. The ownership of the tenant in the house built is the reason assigned for awarding compensation. It is remarkable that there was no prayer for the recovery of possession of the land and building but the plaintiffs claimed a decree for possession of the site only and a direction to the defendants to remove the buildings : and the purchase by the defendant on the determination of the tenancy was only advanced as a reason for not giving compensation but not for denying the defendant's claim to remove the building.
20. The next decision that may be referred to is the one which overrules Mahalakshmi Animal v. Palani Cketty (1871) 6 M.H.C.R. 245. There also the land was leased for constructing a building. There also the suit was for possession 'after removal of the buildings erected thereon by the defendants.' The decrees of the lower courts allowed defendant one mouth to remove the building and surrender possession. The defendants claimed compensation for them in second appeal. It was conceded that the case is governed by the rule of justice, equity and good conscience. It was held that under the Hindu Law as well as the Mahammadan Law the right of the tenant is the same as that adopted in Section 108(A). The decision in Mahalakshmi Ammal v. Palani Chetti (1871) 6 M.H.C.R. 245 was dissented from, and, as the plaintiff did not claim that the defendant cannot be allowed to remove the building after the determination of the tenancy, the decree was allowed to stand and compensation to the defendant for the buildings was refused. I have already pointed out that, in the series of cases before this decision, the only question was whether the tenant was not entitled to claim compensation, and there was no doubt at any time entertained about his right to remove the buildings for which a time was generally fixed in the decree itself. This implies, of course, that the tenant has the right to remove the building after the determination of the tenancy as the suit in ejectment will only be after such determination. In another case which was heard at the same time Lakskmana Padayachi v. Ramanathan Chettiar I.L.R. (1903) M. 517 the landlord prayed for a decree for possession against Purakudis, agricultural tenants, after the removal of the building. Kven after that decision the practice was the same. The landlords only prayed that the defendants may be directed to remove the buildings, not that they might recover the land with them. In certain second appeals which came before this Court after the present case was argued, the prayer of the landlords -was only to recover the sites from the defendants - Purakudis, etc., agricultural tenants - after the removal of the superstructures thereon. (See S.A. Nos. 558 of 1909, 858 of 1909, 696 and 697 of 1908). The ruling therefore in Ismai Kani Rowthan v. Nazarali Sahib I.L.R. (1903) M. 211, that a tenant is bound to remove the materials during the continuance of the tenancy, seems to be opposed to the rulings of this court, and to the usage, so far is I am aware, in this Presidency including this Presidency Town and has not been followed since. I may also point out that the decision in Ismai Kani Rowthan v. Nazarali Sahib I.L.R. (1903) M. 211 does not seem to be consistent with the rule of English Common Law either, as it appears that in that case (he tenant took a lease of the land for constructing a building thereon for carrying on trade and such cases in English law, as I shall point out, generally formed an exception.
21. I shall briefly refer to the cases decided by the other High Courts. In re Thakoor Chunder Parmanick's case (1860) B.L.R. p. 595, it is distinctly laid down that the tenant is entitled either to remove the material during the tenancy, or if allowed to remain after tenancy to get compensation or remove them, at the option of the landlord. That this was so understood by the Calcutta High Court is clear from the judgment of Wilson J., in Russicklall Mudduck v. Lokinath Kurmokar I.L.R. (1880) C. 688 which is similar to the case before us. There a tenant who was ejected after the determination of the tenancy sued to recover compensation or be allowed to remove the building at the option of the owner and Wilson J. held that, under the decision above cited, 'any one who has built on land which he occupies under any bona fide claim of title is entitled to remove the materials or be paid for them.' In the casein Juggut Mohinee Dossee v. Dwarka Nath Bysack I.L.R. (1882) C. 582 , the same learned Judge applied the strict English Common Law rule as the case before them was not one of tenancy and the Hindu law was not applicable. His judgment was confirmed in appeal. In Ismail Khan Mahomed v. Jaigum Bibi I.L.R. (1900) C. 570 , Section 108(h) of the Transfer of Property Act is stated to lay down the same rule as in the Full Bench case. The Advocate-General in that case, however, did not dispute the right of the tenant to remove the building and six months' time was given him by the decree. Thus, so far as the Bengal High Court is concerned, the right of the tenant to get compensation or remove the building in cases where the English law has not to be applied after the determination of the tenancy and even after ejectment, has been expressly affirmed. No decided case deals with the rights of a tenant who has built a house with the consent of the landlord or whose ownership has been recognised by the landlord. According to Wilson J. he would probably be entitled to compensation.
22. In the only Allahabad case Beni Ram v. Kundan Lal I.L.R. (1898) A. 496, that was referred to in argument about the tenant's right to remove buildings or to claim compensation, the tenant was allowed to remove the buildings after decree. In fact the plaintiff did not claim a higher right, though it is true that the Judicial Committee refer to Section 108(h) of the Transfer of Property Act as the rule established in India. The question before them, however, was the right to receive compensation and the observation was not made with reference to the right to remove after the tenancy had expired. In that case the owner knew of the construction of the buildings and did not object, but there was no consent, nor is there any case of consent in the Allahabad Reports.
23. In Bombay the law was thus laid down by Couch C.J., in 1869 Narayan Baghoji v. Bholagir Guru Mangir (1869) 6 B.H.C.R. p. 80 . 'We cannot 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' and in that case the defendant who was not a tenant and had notice of the plaintiff's claim while building, was allowed time to remove the superstructure. In Shaik Husain v. Govardhandas Paramanandas I.L.R. (1895) B. 1 , this decision is cited with approval and it is said that 'the same law is as applicable to a tenant building on his landlord's land during his tenancy as to a stranger building on the land of another,' and the reason given is that the tenant must be taken to have known the terms of lease as well as the landlord. This obviously refers to a tenant who has not got permission to build as then alone he would be in the position of a stranger. In Shaik Husain v. Govardhandas Paramanandas (1876) A.C. I p. 767, the Chief Justice says that the tenant did not ask for leave to remove the materials. If a stranger is entitled to remove the building it is clear that the right to remove has nothing to do with the tenancy and a person whose tenancy has expired does not certainly stand on a worse footing than a stranger. I am not aware of any case in which the question of a tenant with right to erect the particular building or whose ownership of the same is recognised, has been discussed in Bombay.
24. The English law is thus briefly stated in Goodeve's Law of Real Property, 5th Edition, pp. 24 and 25 : 'By the ancient rule of the Common Law, expressed in the maxim Quicquid plantatur solo, solo cedit, whatever is planted or built in the soil or freehold becomes, in point of law, part of the freehold or inheritance. Thus a house becomes part of the land on which it stands. In like manner anything annexed or affixed to any building (and not merely laid upon or brought into contact with the building) was, by the old Common Law rule, treated as an addition to the property of the owner of the inheritance in the soil, and was termed a 'fixture.''
25. There is another rule of common law which, as Lord Cairns, states in Bain v. Brand (1876) A.C. I p. 767, 'is quite a different and a separate rule; whatever once becomes part of the inheritance cannot be severed by a limited owner, whether he be owner for life or years, without the commission of that which, in the law of England is called waste and which, according to the law both of England and Scotland, is undoubtedly an offence which can be restrained. Those are two rules, not one by way of exception to the other, but two rules standing consistently together.'
26. Lord Cairns proceeds to state that to the first rule, that which is fixed to the inheritance becomes a part of the inheritance, there is no exception but to the second rule it has been found necessary to engraft exceptions.
27. The most important exception stated to be almost as old as the rule itself, is the right to the removal of fixtures put up for the purposes of trade by a tenant. The courts admitted an innovation in this instance that the 'commercial interests of the country might be advanced by the encouragement given to tenants; to employ their capital in making improvements for carrying on trade with the certainty of having the benefit of their expenditure secured them at the end of their terms. The benefit of the public may be regarded as the principal object of the law in bestowing this indulgence' (see Wood fall on Landlord and Tenant, 18th Edition, page 717). Similarly articles put up for ornament and convenience though falling within the rule as above stated have been allowed to be taken away. The principle upon which this exception is found is that otherwise it would greatly incommode the tenants in the enjoyment of their property. Attempts were made to extend the above rule, which was laid down with reference to trade fixtures, to improvements effected for agricultural purposes only, But in Elwes v. Mawe (1802) 2 L.C. 6 RR. 523 which has become the leading case Lord Ellenborough held that though the improvements were made for purposes of agriculture and for better enjoying the immediate profits of the land, they cannot be removed, though he admitted in his judgment in that case that Lord Kenyon had held that 'buildings erected by the tenants for purposes of farming were, or rather ought to be, governed by the the same rules which had been so long judiciously holden to apply in the case of buildings for the purposes of trade.' This judgment has been strongly criticised, as pointed out in page 312 of Smith's Leading Cases, on the ground that it confines the privilege of the tenant within narrower limits than are designated by the policy to which it owes its existence and that there is no good reason for conferring it on trade to the exclusion of husbandry, a pursuit equally advantageous to the community and which is now like manufactures often carried on with the aid of valuable machinery. Even if the privilege be confined to trade, still many of the occupations of the agriculturists are trades, using that word in its extended sense, not in the narrow and technical one which it expresses in the old bankruptcy acts. And then the learned editors refer to the cases which show that the word trade with reference to the subject now under consideration ought to bear its more extended sense. To meet the growing necessities of the situation various statutes were passed in 1851, 1875, 1876, 1883, 1895 and 1900 which gave agricultural tenants the right to remove fixtures including buildings permanently fixed to the soil which they had not before and the right to receive compensation in the numerous cases therein mentioned. It appears to me clear from this summary that the rule of English Common Law has been always held to be inequitable, that judges have been introducing innovations so far as they could without destroying the rule itself, and that the Statute Law of England has interfered largely with the operation of the rule of Common Law in public interests. In these circumstances it appears to me that it can scarcely be contended with any show of reason that the rule of English Common Law is a rule of justice, equity and good conscience which we ought to administer in this country. There is no more reason for adopting the old common law rules than the statute laws which naturally are more consonant with justice and equity.
28. As to the period of time within which in English Common Law the fixtures have to be removed, the law is not clear. The earlier cases lay down the rule that they must be removed during the term and after the term they belong to the lessor. In Weeton v. Woodcock (1840) 7 M. & W. p. 14 S.C. 56 RR. P. 606 'The rule,' said Alderson B., 'to be collected from the several cases is that the tenant's right to remove fixtures continues during his original term and during such further period of possession by him as he holds the premises under a right still to consider himself as tenant.' In Penton v. Robart (1801) 4 Esp. p. 33 S.C. 6 RR. 371 Lord Kenyon said : 'Where the tenant has by law a right to carry away any erections or other things on the premises which he has quitted, the inclination of my mind is, that he has a right to come on the premises for the purpose of taking them away.'
29. Let us now consider the Transfer of Property Act. Section 108 of that Act, in so far as it is material to this question, runs thus:
In the absence of a contract or local usage to the contrary * * * the lessee may remove, at any time during the continuance of the lease, all things which he has attached to the earth; provided he leaves the property in the state in which he received it.
30. It is clear to my mind that this is only an enabling provision. It gives the lessee a right, whether he had it before or not, under the law of the land, to remove the building during the continuance of the lease in the absence of a contract or local usage to the contrary. If there is any such contract or local usage, he has not that right. Such contract or local usage is therefore one to be proved by the lessor to displace this right which is given under the Act. It is said at p. 217, Ismai Kani Rowthan v. Nazarali Sahib I.L.R. (1903) M. 211, that local usage to remove the building after the term or to claim compensation is a usage to the contrary and has to be proved to entitle a tenant to compensation or removal, on the ground probably that the section impliedly negatives such rights. This has been subsequently declared by a Full Bench of this Court to be not right. A right to claim compensation or to removal after the determination of the tenancy, if the building is not removed during the term, is not inconsistent with a right to remove during the tenancy. See Vasudevan Nambudripad v. Valia Chathu Achan I.L.R. (1900) M. p. 47. There the landlord claimed the improvement and contended that the tenant had only a right to compensation. It was held the tenant had both the rights. The admitted right to receive compensation was not considered contrary to the right to remove. The same argument applies to the right to remove after the term. The section, therefore, in conferring aright to remove a building during the tenancy, does not take away or negative any right which a tenant had, before the passing of this Act, to claim compensation or remove the building after the expiry of the period. A claim to remove fixtures after the expiration of the lease or to claim compensation may no doubt be founded upon local usage as under the general law of the land, but that has nothing to do with the Transfer or Property Act, and the contract or local usage referred to in that section has only reference to the claim of the lessor to cut down the right. It leaves untouched any rights a lessee may have otherwise than under that section. In many cases it is generally stated that Section 108, Clause (h), only reproduces the law as laid down by the decisions. But, as I have already pointed out, those opinions were stated with reference to the claim for compensation and were meant only to show that the right of the tenant was only to remove the building. They were not, I believe, intended to deal with the question whether he had any right to remove after the expiration of the tenancy : and if they are, with all respect, I am unable to agree with that view.
31. The rights of tenants throughout India were not uniform. The Madras High Court had, when the Transfer of Property Act was passed, recognised their right to compensation Makalahkmiammal v. Palnnichetti (1871) 6 M.H.C.R. 245; the Calcutta High Court, the right to remove the building Thakoor Chunder Paramanick's case (1860) B.L.R. 595; Russickloll Mudduck v. Lokenath Kurmokar I.L.R. (1880) C. 688; the strict English law of irremovability had also been enforced Jaggut Mohinee Dossee v. Dwarkanath Bysack I.L.R. (1882) C. 590. The Legislature therefore allowed the tenant the minimum which it considered he should have and a rule was enacted getting rid of the distinctions in English law as to the things which a tenant may or may not remove during the tenancy and substituting one general rule enabling him to remove during the tenancy buildings of all sorts erected by him.
32. An enabling section in a Code intended to apply to all India conferring certain limited rights on a tenant cannot be construed to take away impliedly or to negative any rights which the general law may have recognised in his favour in some provinces. The tendency of Anglo-Indian legislation has always been to strengthen the position of tenants against landlords; and, without words to that effect, I am not prepared to hold that any recognised rights are taken away. If the section is construed to have that operation in cases of tenancies of uncertain duration see Section 111(a), (b), (c), on forfeiture (g) - the tenant will generally be deprived of his fixtures as he may not know the date of the determination of his tenancy, In cases of tenants to whom the right is for the first time conceded, this may not inflict hardship. It is of course otherwise with others.
33. As to the decisions : In Ismai Kani Rowthan v. Nazarali Sahib I.L.R. (1903) M. 211, it was unnecessary to decide that question as the right was conceded by the landlord. No decision except the one in Juggut Mohinee Dossee v. Dwarkanath Bysack I.L.R. (1882) C. 82 negatives the right of removal, and that decision was expressly based on the ground that it has to be decided according to English law and the same learned Judge who decided this case on the original side decided the other way in Russickloll Mudduck v. Lokenath Kurmokar I.L.R. (1880) C. 688 when he was free to decide otherwise than under English law. Other decisions in all three Presidencies recognise the right of removal after decree or determination of tenancy. In this Presidency the law recognised the right of compensation in some cases; in others of removal before that decision, and that decision has not been followed in practice - not so far as my experience goes even in the Presidency town. I am therefore of opinion that a tenant has got the right to remove the building even after determination of tenancy, if he is not given compensation. It was further argued that as the plaintiff failed to remove the building within a reasonable time he cannot do so now. I agree with the contention that the right of removal should ordinarily be exercised before the tenant surrenders possession. But in this case I arrive at the conclusion that the plaintiff should be given some time, if necessary. In the leading case which established the right of removing trade fixtures, Lord Holt says that after the term 'they become a gift in law to the reversion and are not removable' - Poole's case (1795) 1 Salk 308 S.C. 91 E.R. 320. The plaintiff's surrender of possession was involuntary and a presumption of gift ought not to be raised. He had a bona fide claim to compensation. Wilson J., in the Calcutta case above cited Russickloll Mudduck v. Lokenath Kurmokar I.L.R. (1880) C. 688, allowed such a claim. Lord Kenyan in Penton v. Robart (1801) 4 Esp. 33 S.C. 6 R.R. 376, recognised it, and the plaintiff in this case was not an ordinary tenant but one whose ownership in the house was recognised. If he is the owner of the house it stands to reason he must be allowed to remove it, irrespective of his tenancy.
34. The claim to receive compensation now remains for consideration. It is a matter for observation that the right to receive the value of improvements has been established in districts which have very little in common with one another so far as land tenures are concerned. Once it is conceded that the tenant has a right both under the common and statute law to remove an building he might construct, it follows that he need not seek the permission of the landlord to erect a building. When therefore he obtains such permission or recognition of his ownership to the building to be, or which has been, constructed, and in particular a permanent building which cannot be removed without material loss to him, what is the inference? It is that the tenancy is permanent or that compensation will be paid to him. In England where the right to remove is not recognised by the common law, it may be that the inference is only an implied agreement to allow it to be removed. But in India it is different. It has been repeatedly held that where nothing else appears there is a presumption of the grant of a perpetual tenancy when a tenant with permission given constructs a permanent structure. Where such presumption cannot be raised then you imply an agreement to pay compensation as it would be otherwise inequitable to turn out the tenant. This is really the basis of the Madras judgments. The conditions are that the structure must be permanent, which cannot be removed without material loss; the owner must have consented either expressly, or circumstances from which his consent may be implied must be proved; or the tenant's ownership must be recognised which comes to the same thing. It will be seen at once that these conditions cannot be complied with by a trespasser, a tenant who has not got the leave of the landlord either expressly or by implication to build.
35. If the theory that what is attached to a man's freehold must remain there is abandoned otherwise the tenant's right to remove during or after the period of tenancy cannot be recognized - then the case is only one of justice and equity between the owner of the ground and the owner of the house standing thereon. In the case before us the defendant has clearly admitted the plaintiff's ownership, and it is also clear that the house was built with the landlord's consent. In Wood v. Hewett 8 Q.B. p. 913, it was decided that a jury may infer from the circumstances an agreement between the parties that the original owner is at liberty to take away the chattel. It follows that a promise to pay compensation may be inferred if the circumstances justify it. The same principle is recognised in Lancaster v. Eve 1858 C.B.N.S.V. 5 p. 717 where the building could be demolished and the materials removed without injury to the land or substantial loss to the defendant, the landlord may be allowed the option as the outgoing tenant cannot materially suffer. But when the house is of brick and the foundations are a few feet deep in the ground as probably in this case, the demolition of the building, digging up and the removal of the foundation will be costly to the tenant, and will tend to keep the landlord out of his property many months and the materials will be only of trifling value to the tenant : perhaps not even sufficient, to pay the cost of removal. If it is shown that the landlord agreed to the construction of such a building, it appears to me not only that the court will be justified in presuming, in the absence of any circumstances to the contrary, that the landlord agreed to compensate the tenant in case of eviction but his consent ought to be implied. The fact that it is a building lease is not by itself enough to imply consent to the particular building in question. The nature of the building itself may rebut any presumption of consent. The question whether it has been given is one of fact, but where consent has been proved and it is not shown for what purpose it has been given - as for removal his consent is not necessary - agreement to compensate may be well implied as otherwise it would enable the landlord to derive any unfair profit by an act authorised by him. Consent is a recognition of the tenant's ownership. The rule now enacted in England by statute directing compensation if the consent is given in writing in lieu of the old common law rule shows that this is in accordance with justice and equity, according to English jurisprudence. The same principle is recognised in the case of the mortgagee - see Section 63, Transfer of Property Act. The 'Hedaya' declares that by payment of compensation 'there is an advantage to both and the injury to both is obviated' see P.C. judgment in The Secretary of State for Foreign Affairs v. Charlesworth Pilling and Co. I.L.R. (1901) B. 1 Where, as in Venkatavaragappa v. Tirumalai I.L.R. (1886) M. p. 112, there is nothing on the land in which the tenant could claim any property, there is no compensation to be paid. The wells in that case were not built-up wells.
36. The fact that a rule will work injustice in scarcely any case and in the majority of cases it will prevent hardship is the foundation of English Equity Jurisprudence. I am not prepared for the above reasons to depart from a rule of real property law laid down by the Sudder Court and the High Court more than thirty years ago. The reasons in Ismai Kani Rowthan v. Nazarali Sahib I.L.R. (1903) M. p. 211 are, in my opinion, utterly insufficient for that purpose. The question is asked whether the duration of the lease would make any difference in the implication to be drawn and it is replied that a distinction cannot be drawn. I can easily conceive circumstances where it might make a distinction. It is further questioned whether a tenant could claim improvements if he surrenders possession. In that case justice does not require the implication of an agreement. I am, therefore, of opinion that when a building is constructed with the consent of the owner, we ought to imply an agreement to pay compensation to the tenant.
37. On general grounds I have come to the conclusion that the plaintiff is entitled to the relief claimed. But there is a short ground on which this case might be disposed of.
38. The rights of these parties must depend upon the terms of Ex. II. The tenancy which is now determined is the tenancy created by that instrument. The plaintiff did not build the house while holding as a tenant under Ex. II. The old tenancy was at an end, and, if the defendant's contention is right, the house became his property when plaintiff failed to remove it. Section 108(h) has obviously no application therefore so far as that tenancy is concerned. But under Ex. II he was holding the house as owner and the ground as a tenant Therefore he cannot recover the house which has not been let and not been subsequently attached to the ground. All those arguments which proceed on the basis of a tenant building on the landlord's land have no application and if the defendant wants the building he must pay for it. For these reasons I would modify the decree of Wallis J. and direct compensation to be ascertained and paid to the plaintiff.
Charles Arnold White, Kt., J.
39. The result will be the appeal is dismissed with costs.