Charles Arnold White, 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 Thakoor Chunder Paramanick (1866) B.L.R. Sup. 595 , which is cited in Ismai Kani Rowthan v. Nazarali Sahib (1904) I.L.B., 27 Mad., 211 , intended to lay down that, in cases where the builder did not remove the 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 Ayyangar's judgment in Ismai Kani Rowthan v. Nazarali Sahib (1904) I.L.B., 27 Mad., 211 ,' according to the customary or common law of the land, as laid down in In the matter of the petition of Thakoor Chunder Paramanick (1866) B.L.R. Sup. 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 Muhammadan law-and it may here be observed that the parties to the present suit are Muhammadans-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 Thakoor Chunder Paramanick (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(h) of the Transfer of Property Act. In his work on the Law of Transfer in British India, Mr. Gour observes: (paragraph 2166, volume 3) '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 411, 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 before 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., (1899) All., 496.
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, 3., that the evidence on this case is not sufficient to establish an estoppel. But, apart from the evidence, in the rental agreement of May let, 1898, an agreement entered into after the erection of the building, there was an express stipulation that the plaintiff might he 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 give 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 thai, the equity discussed in Ramsden v. Dyson (1865) L.R., 1 B. 129 and Beni Ram v. Kundan Lal I.L.R., (1899) All., 496 , was not an equity giving a right to compensation, bat 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-site on lease from the predecessor in title of the first defendant in 1883. That lease was renewed by the first defendant in 1898. While in possession under that lease, the first 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 26th February 1907; 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 Beni Ram v. Kundan Lal I.L.R., (1899) All, 496 , which followed Ramsden v. Dyson (1865) L.R., 1 E. 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 coo sent 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 duo 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 V) admits that the house continued 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. Held, following as he was bound to do the decision of Bhashyam Ayyangar, J. concurred in by Moore, J., in Ismai Kani Rowthan v. Nazarali Sahib I.L.R., (1904) Mad., 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 Bhashyam Ayyangar, J-, 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 Secretary of State for Foreign Affairs v. Charlesworth, Pilling & Co. I.L.R. (1902) Bom., 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 tenants' right in this respect. The Hindu Law texts that are always referred to with reference to the question are Naradasmrithi, 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. The 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 of 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,' volume 33, page 143, foot-note. 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 land. 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 has never been at any time any doubt entertained on this matter. In South Canara in Daramma v. Mariamma Second Appeal No. 742 of 1894, a question was raised whether a usufructuary mortgagee was entitled to the value of his improvements, and after evidence was taken as to custom, the High Court (Subrahmanya Ayyar 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) Sudder Reports 41, Second Appeal No. 186 of 1859. The Sudder Court consisting of three Judges laid flown law in these terms: 'It appears that the first 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 offer the first 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 Mahalatchmi Ammal v. Palani Chetti (1871)6 M.H.C.R.,245, the plaintiff 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 Suddar Amin directing the payment of compensation to the defendant. On Second Appeal the decree was confirmed by Holloway, J., 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; by Innes, J., 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 support the view, It will be observed that this was also the reason assigned by the Sudder Court Judges. Innes, J., further observed that if this were not so all that the tenant could do was to pull his houses 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, or the purpose of the letting, the Court, will imply an agreement between the parties to pay compensation. In Theaga Nayaka v. Surappa Second Appeal No. 462 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 Blake v. Savundarathammal I.L.R., (1899) Mad., 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 the 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 out 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 remote 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 Mahalatchmi Ammal v. Palani Chetti (1871) 6 H.M.C.R., 245 [viz., Ismai Kani Rowthan v. Nazarali Sahib I.L.R., (1904) Mad., 211. Ed] 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 month 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 Muhammadan Law, the right of the tenant is the same as that adopted in. Section 108(h) of the Transfer of Property Act. The decision in Mahalatchmi Ammal v. Palani Chetti (1871) 6 H.M.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 buildings 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 [Lahshmana Padayachi v. Ramanathan Chettiar I.L.R., (1904) Mad., 517, the landlord prayed for a decree for possession against Purakudis, agricultural tenants, after the removal of the building. Even 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 landlord was only to recover the sites from the defendants -Purakudis, etc., agricultural tenants-after the removal of the superstructures thereon, [See Muthusami Padayachi v. Krishnaswamy Iyer Second Appeal No. 558 of 1909, Gurusami v. Swaminatha Second Appeal No. 858 of 1909 and Velusami Thevar v. Souri Ammal Second Appeals Nos. 696 and 697 of 1908. The ruling therefore in Ismai Kani Rowthan v. Nazarali Sahib I.L.R., (1904) Mad., 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 as 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., (1904) Mad., 211 does not seem to be consistent with the rule of English Common Law either, as it appears that in that case the tenant took a lease of the land for constructing a building thereon, for carrying on trade and such cases in English law, as 1 shall point out, generally formed an exception.
21. I shall briefly refer to the cases decided by the other High Courts. In In the matter of the petition of Thakoor Chunder Paramanick (1866) B.L.R., Sup. 595, it is distinctly laid down that the tenant is entitled either to remove the materials 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 Russickloll Mudduck v. Lokenath Kurmokar I.L.R., (1880) Calc., 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 bond fide claim of title, is entitled to remove the materials or be paid for them.' In Juggut Mohinee Dossee v. Dwarka Nath Bysack I.L.R., (1882) Calc., 682 , 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. Jaigun Bibi I.L.R., (1900) Calc., 570 , the Section 108(h) of the Transfer of property Act, is stated to lay down the same rule as in the Fall Bench case. The Advocate-General in that case however did not dispute the right of the tenant to remove the building and sis 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., (1899) All., 496, that was referred to in argument about the tenants' 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 Narayan Raghoji v. Bholagiri Garu Mangiri (1869) 6 Bom. H.C.R., 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 Parmanandas I.L.R., (1896) Bom., 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 the 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 Parmanandas I L.R., (1896) Bom., 1 , 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 recognized 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 (1877) 1 A.C., 762, '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 for 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 Cairn 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 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 Woodfall 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 bean allowed to be taken away. The principle upon which this exception is founded 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. Bud in Elwes v. Maw (1802) 2 Bm. L.C., 189 ; S.C. 6 R.R., 523 which has become the leading case, Lord Ellenborough held that though the improvements were made foe 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 tenants for the purposes of farming, were, or rather ought to be governed by 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 212 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-arid 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 is dear 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 law which naturally is 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 dear. 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. Woodcook (1840) 7 M. & W., 14, 'The rule' said Alderson, B., 'to be collected from the several cases' is 'that the tenants' 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., 33, 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 be received it.
30. It is dear 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. I am therefore unable to agree with what is said in Ismai Kani Rowthan v. Nazarali Sahib I.L.R., (1904) Mad., 211, that a 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. 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.,(1901) Mad.,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 a right 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 of Property Act, and the contract or local usage referred to in that mention 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 (b) 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 tenants 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-Mahalatchmi Ammal v. Palani Chetti (1871) 6 M.H.C.R. 245; the Calcutta High Court the right to remove the building-In the matter of the petition of Thakoor chunder Paramanick (1866) B.L.R., Sup. 595 and Russickloll Mudduck v. Lokenath Kurmokar I.L.R., (1880) Calc., 611; the strict English law of irremovability, had also been enforced-Juggut Mohinee Dossee v. Dwarka Nath Bysack I.L.R., (1882) Calc., 582 . 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. 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 right which the general law may have recognized 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.
32. As to the decisions in Ismai Kani Rowthan v. Nazarali Sahib I.L.R., (1904) Mad., 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. Dwarka Nath Bysack I.L.R., (1882) Calc., 582, 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) Calc., 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 benami has got the right to remove the building oven after the 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 became a gift in law to the reversion and are not removabale,' Pool's case (1795) 1 Balk. 368 The plaintiff's surrender of possession was involuntary and a presumption of gift ought not to be raised, He had a bond fide-claim to compensation. Wilson, J., in the Calcutta case above cited, Russickloll Mudduck v. Lokenath Kurmokar I.L.R., (1880) Calc., 688, allowed such a claim. Lord Kenyon in Penton v. Robart (1801) 4 Esp., 33, 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.
33. 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 any 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 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.
34. 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 recognised-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 dearly admitted the plaintiff's ownership, and it is also dear that the house was built with the landlord's consent. In Wood v. Hewett (1846) 8 Q.B.,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 recognized in Lancaster v. Eve (1859) 5 C.B.N.S., 717, that 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 coat 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-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 mortgagees-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 Privy Council judgment in Secretary of State for Foreign Affairs v. Charlesworth, Pilling & Co. I.L.R., (1902) Bom., 1. In Venkatavaragappa v. Tirumalai I.L.R., (1887) Mad., 112, there was nothing on the land in which the tenant Could claim any property, therefore there was no compensation to be paid. The wells in that case were not built-up wells.
35. The fact that a rule will work injustice in scarcely any case and in 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 Gourd and the High Court more than thirty years ago. The reasons in Ismai Kani Rowthan v. Nagarali Sahib I.L.R., (1904) Mad., 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.
36. 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.
37. The rights of these parties must depend upon the terms of Exhibit 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 Exhibit 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 Exhibit II she 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, C.J.,
38. The result will be the appeal is dismissed with costs.
Charles Arnold White, C.J.,
39. I adhere to my former judgment, and I think that the appeal should be dismissed with costs.
40. As regards the point that the building was not attached to the land by the plaintiff or her husband during the tenancy under Exhibit II, a point which was not taken in the Court below, I do not think it is necessary to hold that Section 108 of the Transfer of Property Act would be inapplicable to the cage. So far as I can see, the recognition, for the period of the new tenancy, of the tenant's property in the building has no other necessary effect than to prevent the landlord from treating the building as having been surrendered to him at the end of the previous term; it may be taken as evidence of a contract to allow the removeable fixture to remain as such upon the land for the new term. I find nothing inconsistent with this view in Exhibit II, and the effect, so far as the tenant's right to the building is concerned, is to reserve to him for the new term whatever rights he had during the old term and not to create new rights, i.e., rights distinct in kind from the old ones. There is no necessity, I think, to infer the creation by Exhibit II of any more extensive right, than the plaintiff's husband had before, and seeing that the point was not taken on behalf of the plaintiff below we may therefore not have before us all the available evidence; I am not prepared to draw any inference in the plaintiff's favour which the words of Exhibit II do not necessarily import.
41. As to the question of compensation, I think it is clear that it is not the law that, apart from estoppel or contract, the tenant has any right to demand compensation for buildings left by him on the premises when he quits them whether those buildings were erected with the landlord's consent or not. Consent will only be of use to the tenant as leading to an estoppel or as evidencing an agreement. I see no reason, if I may say so, to doubt the correctness of the statement of law on this point in Ismai Kani Rowthan v. Nazarali Sahib I.L.R., (1904) Mad., 211 .
42. As to the facts I am content to accept them as found by the learned Judge who heard the evidence. His estimate of it was not seriously attacked in the argument; addressed to us on behalf of the appellant.
43. He finds that there is no trustworthy evidence of an express consent on the party of the original landlord to the erection of the house-but that it is clear that the first defendant, the original landlord's successor, knew of the additions made to it-I agree with him that, this being the state of the evidence and having regard to the conditions of the tenancy, there is no room for a presumption that there was any undertaking by the landlord to pay for the house if the tenant did not remove it. Even if it can be presumed that the house was originally built with the knowledge of the then landlord, that will not be enough; and I venture to think that recognition of ownership is of no effect at all; the law gives the tenant ownership during the term, and the landlord's recognition of that will not estop him or be evidence of an agreement.
44. There remains the question whether the tenant's right of removal ceases with the expiration or determination of the tenancy, or if not then, when.
45. This question is dealt with in Ismai Kani Rowthan v. Nazarali Sahib I.L.R., (1904) Mad., 211 , It is there pointed out that in Section 108(h) of the Transfer of Property Act 'nothing is said as to the rights of parties in respect of such things after the determination of the lease, if they have not been already removed by the tenant. The question may arise whether the tenant forfeits all his rights in such things if he has not so removed them; and in the absence of any contract on that point, the question will have to he solved with reference to local usage,' whatever may be the precise sense in which that expression is used in Section 108.' This last sentence no doubt suggests a misreading of the section by the learned Judge, but that does not, I think, affect the following passage which, as I understand it, contains his solution of the question. 'According to the customary or common law of the land as laid down In the matter of petition of Thakoor Chunder Paramanick (1866) B.L.R. Sup. 595 , the option 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.' And this solution seems to be in accordance with the cases in India.
46. Inasmuch then as the lessor's right of election comes into operation only after the expiration or determination of the tenancy, for till then he has no right to interfere-it follows that, if he elects to allow the tenant be remove the buildings, he must allow him a reasonable time after the determination of the tenancy, in which to effect the removal, and accordingly the Courts in India, as is pointed out by Sankaran Nair, J., have been in the habit, when making decrees in ejectment suits, of postponing execution for a period of sufficient duration to enable the tenant to remove his buildings, if he so desires, before surrendering possession and in Beni Ram v. Kundan Lal I.L.R., (1899) All., 496, the Privy Council took a similar course and making a decree for ejectment allowed the tenant to remove his buildings.
47. It is for the landlord to give a reasonable time, but the Courts will not count the time against the tenant so long as the landlord's right to demand possession is in dispute. It would be inequitable to require the tenant to pull down his buildings before the question of his liability to give up possession is decided. Hence the time is counted from the date of the decree.
48. But there is nothing in any of the cases, or in the texts of the Hindu and of the Muhammadan law-givers cited in the cases, to suggest that, after possession had been given up to the lessor, the lessee retains any right to remove the buildings or to demand compensation for them. If he has had time after the determination of the lease to remove the buildings and has not done so before he gives up possession, then I am satisfied he has no further right to do so. It is not necessary in this case to decide whether the buildings are to be held to be 'a gift in law to him in reversion,' or to be forfeited or abandoned, or whether it is only the right of recovery from the lessor that is barred. The result is the same so far as we are concerned with it.
49. Now in the present case possession was obtained by means of an ejectment order of the Presidency Court of Small Causes, and the procedure of that Court does not, we are told, admit of the postponement of execution which in other cases is effected by the decree. Nevertheless the tenant is by law entitled to a reasonable time and opportunity to remove his buildings, and as I have above pointed out, that time must generally at any rate to dated from the ejectment order and not from the termination of the tenancy. The question is therefore, has the tenant been given that reasonable time and opportunity by the landlord. It not, the Court will give it now or make the landlord pay compensation. If so, the tenant has no further right to remove the building.
50. There can be no doubt, I think, that the answer must be that the tenant has been given ample time and ample opportunity of removing the building after he gave up possession in February 1907, and that being so his suit was rightly dismissed and this appeal must be dismissed with costs.
Sankaran Nair, J.
51. I have read the judgment of miller, J. For the reasons already given by me I agree with the view that the improvement, the building in this case, belongs to the tenant, the appellant, and that he is entitled to remove it, if the defendant is not willing to pay him its value. I am unable to agree, however, with the view that ownership is lost if not exercised within a reasonable time. The tenant is bound to remove the building within a reasonable time or before he surrenders possession. If he does not do so, I fail to see how it baa the effect of transfer of ownership, The landlord may restore the land to its old condition and claim damages.
52. The law as to right to compensation laid down by my learned colleagues following the decision in Ismai Kani Rowthan v. Nazarali Sahib I.L.R., (1904) Mad., 211, is undoubtedly, the English law. The English Common Law has been harsh and oppressive to tenants and is not a law of justice, equity and good conscience. Indian agricultural property is built on tenant's labour. Indian legislation both local and imperial has been steadily directed towards getting rid of the consequences that followed the application of the English law of landlord and tenant based on contract to India where such relation is regulated by custom. In the Madras Presidency the Sudder Court in 1859 and eminent Judges of great experience like Holloway and Innes laid down a different principle which followed in my judgment under appeal. As between the two I have little hesitation in making up my mind to follow their decision in Mahalatchmi Ammal v. Palani Chetti (1871) 6 M.H.C.R.,245.
53. It is true that the question that the building was not attached during the tenancy was not raised in the Court below. But Exhibit II was a part of the plaintiff's case and it was for the defendant to raise any plea that may get rid of the inference to be drawn from Exhibit II.