1. The question referred to this Full Bench is:
Whether the property in the houses in suit passed to the plaintiff Khaoheru Singh under the auction sale of 26th January 1932, or not?
2. On 2nd January 1924, Umrao Singh defendant-appellant, made a simple mortgage of his entire zamindari share in favour of Khacheru Singh and others, the plaintiffs-respondents. (The date 9th March 1918 given in the order of reference for the mortgage is admitted to be correct.) The plaintiffs sued on the mortgage and obtained a final decree, and put up the share for sale and purchased it themselves on 26th January 1932. On 11th March 1932, Umrao Singh executed a deed of gift of three houses in the abadi of the village to his daughter-in-law, Mt. Chhawari, defendant 2. On 5th September 1937, the plaintiff brought the present suit for possession of these three houses. The Courts below have decreed the suit. The case for the plaintiff is that the sale certificate in his favour stated that the entire zamindari interest of defendant 1 including his interest in the abadi was sold without any reservation, the words in the sale certificate being "haq-in-haquq abadi"; and that the plaintiff had obtained formal possession over the zamindari. The lower Appellate Court held that "the houses or material thereof as well as the site must therefore be taken to have passed to the auction, purchaser." The Court also found that the donee was in possession of the three houses and that Umrao Singh was living in another village, and had let his cultivatory lands. The argument for the plaintiff-respondent before the Full Bench was based on Section 8, T.P. Act, Act 4 of 1882, which states:
Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof.
Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth.
3. In Section 3 it is provided as follows : "attached to the earth means - ... (b) imbedded in the earth, as in the case of walls or buildings." The argument therefore is that the sites of the houses have been transferred to the plaintiffs by the auction sale, that the three houses are attached to their sites, and therefore the three houses have been transferred to the plaintiffs, and after that transfer Umrao Singh had no right or title in the three houses which he could transfer by deed of gift. There are the following objections to this theory in the present case:
1. The sites of the houses have not been transferred to the plaintiffs. The abadi has not been partitioned and Umrao Singh only held an undivided share in it, and by the auction sale the plaintiffs merely acquired an undivided share in the abadi, and not the full ownership of any particular part of the abadi. The plaintiffs are act the owners of the sites, but merely of undivided shares in the sites. On this being pointed out, learned Counsel for plaintiffs had considerable difficulty in stating whether his claim was that the plaintiffs acquired the whole of the three houses under Section 8 or only undivided shares in the houses. Either claim would lead to considerable confusion. But it appears quite clear to ma that Section 8 is not intended to apply in this way to the case of a transfer of an undivided share in land. The Section refers to "a transfer of property" and in Para. 2 states "where the property is land." We must therefore have "a transfer of land" and in such a case there will pass "all things attached to the earth," that is to the land which is transferred. The sites of the houses have not been transferred. Therefore the houses attached to those sites have not been transferred. It is only where the sites had been transferred to the plaintiffs that the plaintiffs could claim that the houses attached to those sites were also transferred under the provisions of Section 8.
2. Section 2 of the Act states generally:
But nothing herein contained shall be deemed So affect...(d) save as provided by Section 57 and Chap. of this Act, any transfer by operation of law or by, or in execution of, a decree or order of it Court of competent jurisdiction:
The plaintiffs claim to have acquired their rights by auction sale in execution of a decree, and accordingly the provisions of Section 8 do not apply. This is also shown by the fact that Section 8 refers to "a transfer of property," and Section 5 says:
In the following Sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more living persons, etc.
Learned Counsel then argued that Section 8 would apply to the mortgage deed by defendant 1 to the plaintiffs, and that whatever rights were mortgaged, were later sold by auction. I do not think that this argument is sound. Section 8 applies to transfers as defined in Section 5, the principle that everything passes which is not reserved. The reason for this principle is that there is a privity of contract between the parties and that they have an opportunity to know the property in question. But this principle does not apply to auction sales, where the principle is that only so much passes as is specified the reason probably is that the public are Invited to bid for the property, and what is to be sold should be set out in detail in the sale proclamation, and not left to mere inference or presumption.
3. The auction sale of the share in the mahal was conducted by the Collector in accordance with the Rules of the Governor in Council under Sections 68 and 70, Civil P.C.; these rules are printed in Appendix 6, General Rules (Civil), Vol. II, and date from 7th October 1911, with amendments. The corresponding rule in Volume I is in Ch. IV, p. 48, Rule 11, which provides:
Where property to be sold in execution of a decree is (1) agricultural land or any interest in agricultural land the decree shall be transferred to the Collector for execution, under Section 68, Act 5 of 1908, and the rules prescribed under that Section by the Local Government; (2) a garden or land occupied by a house or appurtenant thereto, or moveable property, of any description, or is any interest in such garden, land or moveable property the Court shall appoint a Civil Court Amin to conduct the sale, unless special reasons render it necessary that other agency should be employed; in which case such reasons shall be set forth in the handwriting of the presiding Judge in the order of appointment.
4. These rules lay down that if the land occupied by the houses was to be sold, the sale would be conducted by a Civil Court Amin, and not by the Collector. For the Collector to have power to conduct such a sale a special order setting forth the reasons would have to be made by the presiding Judge in his own handwriting. Such an order would of course mention the houses and the Collector in conducting the sale would have the houses described, and the sale certificate would specifically refer to the houses. There was no such order or procedure in the present case. These considerations show that the Collector had no power to sell the houses and did not purport to sell the houses, and from his sale of the share in the mahal no presumption could arise that the houses went with the share. The auction sale by the Collector of the share in the mahal is also a sale of the corresponding share in the abadi, but that is quite a different matter. For the various reasons given above, I consider that Section 8, T.P. Act, has no application to the present case.
5. The order of reference mentions the question whether the houses can be said to be "appurtenances" of the zamindari share. For the plaintiff, no explanation was offered as to how the three houses in the present case could be appurtenant to the zamindari share, nor how the residential house of a zamindar could be considered appurtenant to his zamindari. It was pointed out by my learned brother, Iqbal Ahmad J., that when a zamindar made a usufructuary mortgage of his zamindari share in a village, the mortgagee did not expect to occupy the residential house of the zamindar. Learned Counsel for the plaintiff replied that this might be the custom, but that the mortgagee had a legal right to occupy the house. Such a proposition implies that the house is part of the zamindari share. A zamindari share is a share in a mahal. The U.P. Land Revenue Act, Act 3 of 1901, defines a mahal in Section 4(4) as "(a) any local area held under a separate engagement for the payment of land revenue." The other classes of mahals (b), (c) and (d) do not apply. The important point is that the mahal is an "area" and such a word cannot include house property. The area includes the village abadi. But the houses in the abadi, apart from their sites, belong either to the zamindars or to the ryots, and do not form part of the mahal. If a zamindar spends Rs. 10,000 on building a pucca house in place of his kachha house, this expenditure does not increase the value of the mahal, and the other cosharers have no right to any share in the house or in its value in case of a partition. The house is the separate property of the zamindar, and in no sense is the house joint property of the cosharers in the mahal. This point is clearly shown in the provisions for partition of mahals in Chap. 7, U.P. Land Revenue Act:
Section 1.18. - If, in making a partition, it is necessary to include in the portion allotted to one co-sharer the land occupied by a dwelling house or other building in the possession of another cosharor, the latter shall be allowed to retain it with the buildings thereon, on condition of his paying for it a reasonable ground rent to the cosharer in whose portion it may be included....
Building of one sharer on land allotted to another.
6. There is no provision in any of the Sections of this chapter that any compensation is payable to a cosharer whose house is of less value than the houses of the other cosharers. In this matter the Revenue Court partition differs from a Civil Court partition of houses which are the property of a joint Hindu family, as the Civil Court divides the house property between the members of the family, because the house property has been owned by the joint family previous to the partition. But the houses of cosharers in a mahal are not owned jointly by them as part of the mahal, the houses are owned separately and severally by each cosharer. This view of the law has been taken in two reported cases of this Court, in each of which I was a member of the Bench, in the first case with Niamatullah J., and in the second-case with Sir Shah Sulaiman C.J. In Katar Singh v. Bishambar Sahai (1929) 16 A.I.R. All. 578, the facts were:
Defendant 2 and the plaintiffs were cosharers in a village and defendant 2 was the owner of the buildings in question. As a result of the partition in the Revenue Court under Section 118, Land Revenue Act, the site of the building which belonged to defendant 2 was assigned to the kura of the plaintiff.... The present case has arisen because defendant 2 executed a sale deed of the enclosure and the buildings in suit, dated 23rd January 1927 in favour of defendant 1. The plaintiff-appellant-contends that defendant 2 has no right to transfer, either the site or the buildings. The lower Appellate Court has found that defendant 2 had no right to transfer the site and has granted a declaration that the plaintiff is owner of the site. The plaintiff-appellant has come in second appeal asking for the relief of possession on the allegation, that defendant 2 had no right to transfer the building.... The effect of the partition was to transfer the site to the plaintiffs. There is nothing whatever in Section 118, Land Revenue Act, to affect, the ownership by defendant 2 of the buildings. Accordingly we consider that defendant 2 remained owner of the buildings. There is no restriction on the owner of a building to transfer that building. Under Section 6, T.P. Act, the owner of property may transfer it unless there is some legal restriction to the contrary. In the present case no such restriction is shown.
7. The second ruling is Kanhaiya Lal v. Sheva Lal (1936) 23 A.I.R. All. 14; the facts were:
Mussamat Jascda was a co-sharer in the village and she owned the house. There was an auction-sale in 1885 by which her zamindari share waff sold. She became an exproprietary tenant and was succeeded by Lala Ram, her adopted son, and in May 1929 Lala Ram sold this house to the appellant (defendant). The Court below has found that; there is no custom by which a ryot can transfer a house. It was further found that Mt. Jasoda occupied this house as a ryot and her son Lala Ram also occupied it as a ryot. The case as argued before us in Letters Patent appeal involves certain considerations. These considerations are : what are the rights of a zamindar, a co-sharer, when' there is an auction-sale of his zamindary share? It was argued for the respondent zamindar that the co-sharer was reduced to the level of the other ryots in the village and that the house owned by the co-sharer became non-transferable.... When Mt. Jasoda was a co-sharer she had a proprietary title in three things : (1) a joint right in the site; (2) a proprietary right in the materials, and (3) a right of residence in this house on this site. By, the auction sale we consider that only No. 1 was transferred, that is she lost her undivided share in the village abadi. But we do not consider that she lost her proprietary rights in either (2) or (3). In our opinion the sale of her undivided share in the village and in the abadi could not lessen the proprietary title which she had in the materials of the house and could not lessen her right of residence in that site. Before the auction sale she had a right of transfer of this house. This was apart from her ownership of an undivided share in the abadi. By the auction sale she did not lose her right of transfer of the house but she retained this right of transfer, and the exercise of this right of transfer in May 1929 by her adopted son conveyed a full title in the materials of the house and in the right of residence in the house to the appellant. We consider that a distinction should be drawn between the position of persons who have been zamindars and who in their capacity as zamindars own houses and the position of persons who are mere ryots. In the case of a mere ryot, the zamindar grants a license to the ryot to make a residence. Such a licence remains a licence and the ryot has no right of transfer of the house which he makes in pursuance of such licence. But the house built or bought by a zamindar is a transferable house and such rights of transfer do not cease when the zamindar loses his rights in the village.
8. It is to be noted that in each of these eases the owner of the house lost his zamindari share, in the first case by the house being placed in a mahal in which he was not a co-sharer, and in the second case by auction sale of the zamindari share. The situation produced was in each case the same, that the owner of the house had no zamindari share in the mahal in which the house was situated. In each case it was held that the owner of the house remained owner and had a right to transfer the house with the right of residence and not merely the materials. Various rulings have been mentioned by counsel and in the order of reference, but the cases dealt with are not similar to the present case. Abu Husan v. Ramzan Ali (1882) 4 All. 381 dealt with a case where the father of one Kadir Ali Khan had bought a whole village and with it a killa or fort, which had always been occupied afterwards by the family. On p. 382 the Court held:
As the building in question would seem to have belonged to Kadir Ali Khan qua zamindar, and as his Kimindari rights and interests were brought to sale in 1873 and purchased by the plaintiff-appellant, the presumption is that the killa was included, unless there is anything to show that it was excluded expressly or by implication.
9. This case differs on several points. The sale was of a whole village, and there was no question of co-sharers. The sale was in 1873 by the Civil Court apparently and no question arose that the Collector had no power to sell houses. The sale was not of a zamindari share but of the "rights and interests in the village of Hajipur." The contest was not between an auction purchaser and the former owner, but between the auction-purchaser and a rival decree-holder who after the auction sale to the plaintiff, had caused the building to be attached and proclaimed for sale. There was no question of the former owner remaining in occupation of the building as an exproprietary tenant. Banke Lal v. Jagat Narain (1900) 22 All. 168 was also a sale which "at all events included the 20 biswas share of the judgment-debtors in mouza Saidpur" : (p. 170). There was therefore no question of the sale of a cosharer. The sale was in 1885, so the sale was by the Civil Court. The representatives of the judgment-debtor were Ram Sarup and Piari Lal (p. 169). On p. 172 the question is stated thus:
The first question to be considered in these appeals is whether the execution sale of 20th November 1885 in fact included Hawkins Kothi and Begum Bagh. The sale notification describes the property as "mauza Saidpur Hawkins." It describes the judgment-debtors' interest as "20 biswas with gardens belonging to Ram Sarup and Piari Lal." Hawkins Kothi is a piece of land surrounded by a wall, and including a kothi or house, certain out-houses, and certain lands cultivated by tenants. Begum Bagh is another enclosure consisting mainly of a garden, but also apparently including a kothi. There is no doubt that both Hawkins Kothi and Begum Bagh are included within the area of the village Saidpur.... The only question I think is as to the kothis and the out-houses attached to them. As to these I have no doubt whatever that it was fully intended that they should be sold with the rest of Saidpur. They are specifically mentioned in the application for execution and in the warrant of attachment.
10. The judgment then corrects the view of the trial Court, and proceeds on p. 173:
Now in the entire absence of evidence to the contrary, I think that a kothi or other building situate within the zamindari area is included in and passes with the zamindari.
11. Learned Counsel for the plaintiff respondent wishes to read this sentence as an isolated proposition of law. This is incorrect, as the sentence does not say "in the entire absence of evidence" but "in the entire absence of evidence to the contrary" and this indicates that the learned Chief Justice had regard to the evidence in support of his proposition, evidence which he had just set out, and evidence which he had to weigh, as the case was a first appeal. And if he were laying down a general proposition he would have said "within a zamindari area" and not "within the zamindari area"; the use of the definite article shows that he was referring to the particular zamindari in question, and not to zamindari as a general proposition. Further, if the learned Chief Justice were laying down a general proposition, he would have followed it up by saying that in the present case there was the evidence in support of it which he had already enumerated.
12. In my view this ruling deals with the particular facts of the case, and lays down no general proposition. Sakhawat Ali Shah v. Muhammad Abdul Karim Khan (1915) 2 A.I.R. All. 408 was decided by Muhammad Rafiq J. on the ground that only the zamindari share lot No. 1 in the inventory of property to be sold, was sold to the plaintiff and lot No. 9 the (share in the) killa was not sold, and therefore the sale of the zamindari share would not include a sale of (a share in) the Killa. Knox J. held on p. 61:
The dakhilnama and the sale certificate upon which he relies are vague in their terms. Even if we take them as they stand, they do not show that the killa was sold.
13. This indicates that he considered that specific mention of a share in the killa was necessary in the sale certificate if the sale was to comprise the share in the killa. Durga Singh v. Bisheshar Dayal (1902) 24 All. 218 was a case of pre-emption and the question arose on pp. 223 and 224 whether a factory, fort and grove can be regarded as a part and parcel of, or appurtenant to a zamindari, and would pass as such on a sale of the zamindari, It is pointed that Abu Husan v. Ramzan Ali (1882) 4 All. 381, already discussed, was decided on the point that the killa was occupied by the former owner qua zamindar as a dwelling house. An earlier ruling is quoted with approval, Salig Ram v. Debi Parshad (1874) 7 N.W.P. 38 (F.B.), which lays down that the right of pre-emption was only intended to extend to the ordinary rights of a zamindar in the village and to such buildings In the village as are held ordinarily with such zamindari rights, and that it does not extend to such properties, as for instance a family residence or an indigo factory.
14. I think that the exclusion of such buildings from pre-emption is because they would not pass on a sale of zamindari rights, and if they were to pass they would have to be specifically mentioned in the sale deed, in which case they would be something distinct from zamindari. In Asghar Reza Khan v. Mahomed Mehdi Hossein Khan (1903) 30 Cal. 556, one Ahmad Reza had four sons, of whom two were defendants, Asghar Reza and Dilawar Reza. Another son, Haidar Reza, mortgaged his share in pergunnah Surgapore to Nawab Syed Lutf Ali, and later sold it to him in a deed of 1883 mentioning bazars. The vendee was the predecessor of the plaintiffs. Another son Safdar Reza also mortgaged in 1876 to the same person and a suit was brought and sale certificate obtained for the share in the pergunnah. Defendants obstructed and plaintiffs sued, and the right to four items of property set out on p. 557 was in dispute. Defence claimed that these items were not appurtenant to Surjapore. "With respect to Kutubgunge they alleged it was their mukarrari istemrari ancestral property, and it was also that of Haider Reza and Safdar Reza," and that that decision was res judicata (p. 559). This property was "an undivided share of a village and bazar called Kutubgunge" (p. 557). The trial Court decreed the full claim of the plaintiffs, and the High Court upheld the decision except for holding that the sale certificate did not convey to the plaintiffs the ryoti interest of Safdar Reza in the Kutubgunge bazar but only his zamindari interest holding that res judicata applied (p. 560). Their Lordships of the Privy Council held that there was no res judicata as both parties claimed from Ahmad Reza, in whose favour the decision was given. On p. 563 the case about the bazar in dispute is stated thus by their Lordships:
The other, which was then (and is now) in dispute, had been built by a female ancestor of the then plaintiff Ahmed Reza, and was claimed by him as part of his share in the zamindari. It was apparently held under a lease or a succession of renewable leases in respect of which a ground-rent was payable to the zamindars. The question in dispute was who was entitled to the profit rental. Ahmed Reza claimed it all as his. The other zamindar, i.e. the then defendant, claimed a share of it. The decision was in favour of Ahmed Reza. Neither party claimed the bazar as property severed from the zamindari.
15. On p. 564 plaintiff relies on the following words:
The deed of 1883 contains no words of exception or reservation, and is ample in point of language to pass all Sayad Haidar Reza's interest in the zamindari, including the land on which the bazar was situate. His interest in the houses on that land and in the profit rents derived from them would pass by the deed in the absence of words showing an intention to retain them.
16. The deed of 1883 is the sale deed set out on p. 558 and as already stated it set out that all "hats, bazars, gunges, etc." were sold to the plaintiffs' predecessor. Their Lordships also stated of the share of Safdar Ali that:
The description in the certificate is again quite sufficient to pass his interest in the bazar in the absence of any words showing an intention to exclude it.
17. I consider that the quotations given on p. 564 are not intended to be general propositions of law, but are intended to refer to the particular case which their Lord-ships had described on p. 563, where the bazar had been successfully claimed previously by Ahmed Reza "as part of his share in the zamindari." I do not think that these quotations can be applied to the present case, where there had been no such previous right established, and where there was no question of income arising from a bazar to a zamindar, but of the residential houses of the zamindar. In Ghazanfar Ali v. Muzaffar Ali (1936) 23 A.I.R. Lah. 511, it was held that the rule of English law to the effect that whatever is affixed to the land becomes a part thereof does not apply to India, and therefore where one Muslim brother builds on land owned by him and his brother in equal shares, his brother has no right in the house so built. No other ruling of importance was shown. For the reasons previously given, my answer to the reference is : "The property in the houses in suit did not pass to the plaintiffs Khacheru Singh, etc., under the auction sale of 26th January 1932."
Iqbal Ahmad, J.
18. I agree that the answer to the question referred to this Full Bench must be that the property in the houses in suit did not pass to the plaintiffs under the auction sale of 26th January 1932. The sale certificate on the basis of which the plaintiff-respondents claim title to the three houses in dispute no doubt describes the property purchased by the plaintiff's as the zamindari share of Umrao Singh, defendant-appellant, together with all the abadi rights (mai jami haq-i-haquq abadi), but these words in my judgment, are not of sufficiently wide import to include the residential houses of Dmrao Singh. The words haq-i-haquq abadi denote such rights as a person has in the abadi of the village in his capacity as a zamindar, e.g. the proprietary rights in the site of the houses of tenants and raiyats, in vacant sites within the ambit of the abadi and in the site of a market (bazar) in the village. These rights are valuable rights and entitle the zamindar, in the absence of a custom to the contrary, to realize market dues and other customary dues from the tenants and the raiyats. Such rights are prima facie appurtenant or adjunct to the zamindari right owned by the zamindar and therefore in the absence of a clear indication to the contrary, pass along with the transfer of the zamindari right. But the case of the residential house of a zamindar, be he the owner of the entire village or a mere co-sharer in the same, stands on a totally different footing. In site of such a house his proprietary right is in proportion to the share owned by him in the mahal. If he is the owner of the entire mahal he owns the whole of the site. On the other hand, if he is a mere cosharer in the mahal his proprietary interest in the site will be to the extent of the share owned by him in the mahal. But so far as the residential house itself is concerned, he is the sole proprietor of the same and his proprietary interest in the building is in no sense appurtenant to his proprietary right as a zamindar of the mahal. The proprietary right that he has in the site of the residential house is the right vested in him in the capacity of a zamindar of the mahal, whereas his proprietary right in the residential house is in consequence of the investment made by him in erecting the building and is totally disconnected with his proprietary interest in the mahal.
19. Ordinarily when a zamindar builds a residential house he does so with the intention of providing a shelter for himself and his family and not with the object of enhancing the value of his proprietary interest in the mahal. The ownership of the residential house is therefore referable not to his zamindari interest in the mahal but to the intention of having a home for himself and his family. It follows that the residential house of a zamindar is a separate unit and in no sense a, part and parcel of the proprietary right owned by him in the mahal. In this view of the matter, on the transfer of the proprietary interest of a zamindar in the mahal, his residential house cannot, unless specifically transferred, pass to the transferee.
20. In the present case the plaintiffs claimed title to the three residential houses of Umrao Singh on the basis of the auction purchase made by them, but the description of the property sold as contained in the sale certificate does not, for the reasons given above, include the residential houses, and, as such, the plaintiffs' claim must fail. The view that I take is in consonance with the decision of this Court in Kanhaiya Lal v. Sheva Lal (1936) 23 A.I.R. All. 14. It was held in that case that so far as the residential house of a cosharer is concerned, he has proprietary title in three things : (1) a joint right in the site; (2) a proprietary right in the materials; and (3) a right of residence in the house; and it was held that by auction sale of the zamindari share only the cosharer's right in the site passed to the auction-purchaser and not his proprietary rights in (2) and (3). Reliance is however placed on behalf of the plaintiffs on Section 8, T.P. Act, which inter alia provides that
unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include, where the property is land...all things attached to the earth.
21. It is pointed that the phrase "attached to the earth" has been defined by Section 3 as meaning inter alia "imbedded in the earth, as in the case of walls or buildings," and it is argued that as the three residential houses were imbedded in the earth they must be doomed to have passed to the plaintiffs on the auction purchase of the zamindari share made by them. The short answer to this contention is that Section 8 is included in Ch. 2, T.P. Act, which deals with "transfer of property by act of parties," and consequently Section 8 can have no application to cases of compulsory sales in execution of decrees. Apart from this, even in cases of voluntary transfer, I am not prepared to hold that on the transfer of the zamindari right the residential house of the zamindar, unless expressly transferred, passes to the transferee. The rule enacted by Section 8, T.P. Act that "a transfer of property passes forthwith to the transferee all the interest which the transferor la then capable of passing in the property" in not an absolute rule of universal application, but holds good only if a different intention is not "expressed or necessarily Implied." That this is so is clear from the words unless a different intention is expressed or necessarily implied in the opening portion of Section 8, and from the decision of their Lordships of the Privy Council in Narayan Das v. Jatindra Nath (1927) 14 A.I.R. P.C. 135. Their Lordships observed that:
In India there is no absolute rule of law that whatever is affixed or built on the soil becomes part of it, and is subject to the same rights of property as the soil itself.
22. If a zamindar transfers his zamindari share by a deed without expressly including or excluding his residential house from the operation of the deed he must, in my judgment, by necessary implication, be deemed not to have transferred the residential house, even though the deed recites that the zamindari share along with the abadi rights and other rights appertaining to the zamindari are transferred. The exemption of the residential house from the transfer must in such a case be necessarily implied in view of the fact that the ownership of such a house vests in the zamindar not by virtue of his owning proprietary interest in the mahal, but because he invested his money in order to provide a residential house for himself and his family. Ordinarily, in assessing the value of the zamindari share of a zamindar one does not take into account the value of his residential house and this is so as the residential house is always looked upon as an item of property totally disconnected with the zamindari right. Apart from this, a human being parts with his residential house as a last resort for the simple reason that it is of paramount importance to him to have a place for himself and his family to live in. He therefore attaches peculiar value to his residential house and if he intends to transfer the same one would expect a definite mention of the fact being made in the deed that not only the zamindari but also the residential house is being transferred. I therefore hold that on the transfer of zamindari share the residential house of a zamindar does not pass to the transferee unless that house has been expressly transferred by the deed.
23. Reliance was placed on behalf of the plaintiff-respondents on the decisions of this Court in Abu Husan v. Ramzan Ali (1882) 4 All. 381 and Banke Lal v. Jagat Narain (1900) 22 All. 168, and on the decision of their Lordships of the Privy Council in Asghar Reza Khan v. Mahomed Mehdi Hossein Khan (1903) 30 Cal. 556. My learned brother Sir Edward Bennet J. has in the course of his judgment given detailed reasons for distinguishing from the present case the decision in Asghar Reza Khan v. Mahomed Mehdi Hossein Khan (1903) 30 Cal. 556 and I am therefore relieved from the necessity of recapitulating those reasons. I am however with great respect unable to assent to the proposition laid down by this Court in Abu Husan v. Ramzan Ali (1882) 4 All. 381. In the last mentioned case the "rights and interests" of a zamindar in a certain village were sold in execution of a decree. The zamindar had a residential house in the village and it was held that
in the absence of proof that such building was excluded from sale, the sale of his rights and interests in the village passed such building to the auction purchaser.
24. In the course of the judgment the learned Judges observed that "as the building in question would seem to have belonged to Kadir Ali Khan qua zamindar...the presumption is" that the building was included in the sale. I have already given my reasons for holding that it is wrong to assume that a zamindar owns his residential house qua zamindar." The assumption made by the learned Judges that the house "belonged to Kadir Ali Khan qua zamindar" "was not justified and the conclusion based on this wrong assumption must therefore be erroneous. In Banke Lal v. Jagat Narain (1900) 22 All. 168 one of the questions that arose for consideration was whether or not the residential house (kothis) of a zamindar passed on an auction sale of his zamindari, and Strachey C.J. held that it did. In support of this conclusion the learned Chief Justice observed that the residential house was "specifically mentioned in the application for execution and in the warrant of attachment." He also made reference to a list appended to the report of the Amin and observed that the report read along with the list "shows clearly" that the residential house was in fact attached. After arriving at this conclusion he proceeded to observe that
now in the entire absence of evidence to the contrary, I think that a kothi or other building situate within the zamindari area is included in and passes with the zamindari.
25. I take this passage to mean that as the evidence in the case showed that the residential house was in fact attached and sold and there was no evidence to the contrary the conclusion was irresistible that the residential house was included in the auction sale and passed to the auction purchaser. But if the learned Chief Justice intended to lay down as a general proposition that on the sale of the zamindari share the residential house of a zamindar passes to the auction-purchaser I must, for the reasons already indicated, with all respect, express my dissent. It may be pointed that Banerji J. who was also a party to the decision did not express any opinion on the point.
26. Khachheru Singh, Kashi Ram and Sisram Singh instituted a suit against Umrao Singh and Mt. Chawara in order to obtain possession of three houses in the village of Nawada Kalan, Pargana Gurmukhteshwar, Tehsil Hapur in the District of Meerut. Their allegations were that defendant 1 Umrao Singh had been a cosharer in the zamindari of this village, that the plaintiffs on 26th January 1932 had bought the whole of his share at an auction sale with all rights in the abadi, etc. and had been put into possession, that Umrao Singh after the sale had had no rights in any houses in the abadi except such rights of occupancy as he might have as an exproprietary tenant, that Umrao Singh at the time of the sale was in possession of the three houses in suit and that after the sale his possession became that of an exproprietary tenant, that the tenants in the village in suit had no right to transfer their houses or the sites thereof and that on 11th March 1932 Umrao Singh had made a gift of the three houses in suit to defendant 2 Mt. Chawara and had given her actual possession. They maintained that the possession of Mt. Chawara was that of a trespasser and that the plaintiffs were entitled to possession over the houses.
27. Mt. Chawara did not appear. Umrao Singh put in a written statement in which he admitted that he had made a gift of the houses to Mt. Chawara but alleged that ha was in joint possession of the houses with the donee. As for the sale of his share he admitted that there was a sale only of the Sahrai, i.e. of the fields and other land which was not part of the abadi. He alleged that the houses in suit had never been mortgaged or sold, that he had never been in possession of them as an exproprietary tenant, but before the gift had been in possession as full owner of them. In Para. 13 of his written statement he alleged, as I have already said, that only the Sahrai had been mortgaged and he alleged further that that had been sold and was in the possession of the plaintiffs. The issues framed were whether the plaintiffs were the owners of the houses in dispute, whether Umrao Singh had any right to make a gift of the property in suit to Mt. Chawara and whether the gift was binding on the plaintiffs. The learned Munsif in whose Court the suit was instituted passed a decree in favour of the plaintiffs. The lower Appellate Court dismissed the appeal by Umrao Singh. A second appeal was instituted in this Court. It came before a single Judge who referred it to a Bench of two Judges. That Bench decided that they should refer a question to a larger Bench. This question was as follows:
Whether the property in the houses in suit passed to the plaintiff Khohheru Singh under the auction sale of 26th January 1932 or not?
28. This question was argued before a Bench of three Judges who have now referred it to a Bench of five Judges and it is as a member of that Bench that I am delivering this judgment. The plaintiffs in support of their title to the houses produced a certificate of sale dated 26th January 1932. This set forth that they had purchased certain shares in the villages of Nawada Kelan at a sale in execution of a decree against Umrao Singh and his son Girwar Singh and that the interests purchased included all rights in the abadi and the Sahrai and the waste and barren land and salt, pasture land, cattle sheds, trees, etc. The question is whether the rights in the three houses in suit which were dwelling houses in the abadi, the property of Umrao Singh, were transferred by the sale upon the basis of which this certificate was based. It is not denied that the sale took place in execution of a final decree for sale of property mortgaged by Umrao Singh.
29. I did not understand learned Counsel for the appellant to contend that the property described in the sale certificate was in any way different from that described in the deed of mortgage, but it had been suggested by one of my learned brothers that the sale certificate must be construed independently of any other document and that on a proper construction of it, it should be held that the dwelling houses of the zamindar, i.e. of Umrao Singh, were not included in the property sold. The argument is that the Court was not bound to sell the whole mortgaged property and, even if it did do so, we do not know exactly what was mortgaged because the deed of mortgage is not upon the record. It certainly does not appear from the pleadings in the trial Court or from the judgments of the learned Munsif or the learned Judge of the lower Appellate Court that the question was ever raised that the property sold was only part of the property mortgaged. A sale certificate is not an instrument which operates to transfer property. The auction purchaser acquires his title at the time of the sale or its confirmation of the sale. The sale certificate is only evidence of title. As it is required by law to be reduced to writing it is possible, if there is no ambiguity about it that it must be accepted without further enquiry, but if it contains any latent ambiguity the Court in construing it may certainly be referred to other evidence such as the decree or the document upon which the decree is based in order to ascertain what it really means.
30. It seems to me that the certificate of sale is expressed in the very widest terms and that it includes all the property which Umrao Singh as zamindar held as a co-sharer in the mahal. I should say myself that that property included any buildings which he had erected on the joint land of the cosharers with their consent express or implied and which he was occupying as a zamindar and in no other capacity, If however there is any doubt about the meaning of the words which imply that all his rights in the abadi were transferred I consider that the plaintiffs would be entitled to have an opportunity to prove that the Court at the sale transferred all the property mortgaged which included the buildings and that it would be unfair to them to base a decision upon the finding that the Court was transferring something less than the property mortgaged or that that property did not include the buildings without giving them an opportunity to produce such evidence. On the pleadings they were never given such an opportunity in the trial Court because the question was never raised. I believe that it has throughout been assumed that the property mortgaged was the property sold, as indeed seems to be the inference from Umrao Singh's own allegation in Para. 13 of the written statement, and if that is so, the further question arises whether the property mortgaged would include the three houses in suit. This mortgage was effected by an agreement between the parties and the provisions of Section 8, T.P. Act, would apply to it. This Section is in so far as it is relevant in the following terms:
Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interests which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include where the property is land the easements annexed thereto, the rents and profits thereof accruing after the transfer and all things attached to the earth.
31. The term attached to the earth means under Section 3 of the Act:
(a) rooted in the earth as in the case of trees and shrubs, (b) embedded in the earth as in the case of walls and buildings....
32. It follows from this definition that a transfer of land includes a transfer of any buildings upon the land whether they are dwelling houses or otherwise. Umrao Singh transferred his share in the mahal. A mahal under the provisions of Section 4, Land Revenue Act is:
(a) any local area held under a separate engagement for the payment of land revenue...;(b) any revenue free area for which a separate Record of Eights has been framed...;(c)...any grant of land made Under the waste land rules; and (d) any other local area which the Local Government may by general or special orders declare to be a mahal.
33. A mahal is an area of land and a transfer of a share in a mahal is a transfer of a share in the land comprised in that area. There can be no doubt that the abadi of a village is included in the area of a mahal and the land of the abadi is part of the land in the mahal. Umrao Singh by his deed of mortgage transferred his share in the mahal and therefore he transferred his share in the land of the abadi and it seems to me on the clear meaning of Section 8, T.P. Act, that he transferred any buildings to which he was entitled standing on that land. My learned brothers whose judgments I have had the advantage of seeing have given various reasons for thinking that the provisions of Section 8, T.P. Act, do not apply to the facts of this case. One of these I have already mentioned. With others I will now deal.
34. In the first place, it is suggested that the sites of the houses have not been transferred to the plaintiffs because Umrao Singh owned and transferred only an undivided share in the abadi. The learned Judge who makes this suggestion considers that Section 8 is not intended to apply to the case of a transfer of an undivided share in land. The word property may be used in the objective sense of the concrete thing which is the subject of ownership or other lights, or it may be used in the sense of the rights and interests of the owner or other person in that property. I have no doubt that it is in the latter sense that the term is used in the Transfer of Property Act. A mortgage is a transfer of property and it is a transfer only of certain interests appertaining to the mortgagor. Section 44, T.P. Act, deals with the transfer by one of two or more co-owners of immovable property of his share of such property. When he transfers his share he transfers immovable property within the meaning of the Act. Let us take the case of a sale. If Umrao Singh had sold his share he would have ceased to become a co-owner of the land in the mahal and the vendee would have become a co-owner in his place. The property which was the subject of the sale would have been land and therefore it seems to me impossible to say that the ownership of the land and therefore the land itself had not been transferred. In the present case, I have no doubt that the mortgage was a transfer of an; interest in the land and that the sale on the basis of the mortgage resulted in a transfer of the land, I can see no reason therefore why the provisions of Section 8, T.P. Act, should not apply.
35. A second point is that Section 8 does not apply because the sale was not a transfer by act of parties and because under the provisions of Section 2, T.P. Act, the provisions of the Act do not apply to transfers in execution of decrees. It is of course true that the provisions of Section 8 do not apply directly to the transfer effected by the sale in execution of the decree, but if the property sold was the property mortgaged then we have to see what was mortgaged and the provisions of Section 8 do apply to the mortgage. As I have said earlier in this judgment, I do not believe it was ever contended that the terms of the sale certificate were in any way different from the terms of the deed of mortgage. If the Court sold the property mortgaged, then we have to see what was mortgaged and in construing the deed of mortgage we should have to apply the provisions of Section 8, T.P. Act.
36. A third point is that the auction sale of the share in the mahal was conducted by the Collector in accordance with the Rules of the Governor in Council under Sections 68 and 70, Civil P.C., and that a Collector is not entitled to sell houses. This argument if it were carried to its logical conclusion would I think lead to curious results. Let us say that there was no doubt about the terms of the mortgage or the terms of the sale certificate. Let us assume a case where the zamindar quite clearly and definitely said that he was mortgaging his share in the mahal including his dwelling house and that the final decree said in so many words that the mahal was to be sold including the dwelling house. In that case, would the Court not have to transfer the final decree for sale to the Collector for execution and would the Collector not be entitled to sell the house of the zamindar at the same time as the other property in the mahal?
37. In the present case, the whole argument based on Section 8, T.P. Act, is that the mortage of the mahal must be assumed to have included the mortgage of the zamindar's welling house and that the decree for sale included a decree for the sale of the whole mortgaged property including the dwelling houses. The position therefore is exactly ii he same as it would have been if it had been specifically stated in the deed of mortgage and in the decree for sale that the dwelling houses were being sold as part of the mahal. The rule of the Court given in Ch. 4, Rule 11, is merely by way of administrative direction and is not I think a rule of law. If the Court made a rule of procedure under Section 122, Civil P.C., that would be a rule consistent with that Code and would find its place in the rules of Schedule 1. The rules of law for the conduct of sales are found in Order 21, Rule 65 and Section 68, Civil P.C. The Local Government has notified that the execution of decrees which involve the sale of a mahal or a share in a mahal nhall be conducted by the Collector and if the sale of a mahal necessarily implied the dale of buildings standing on the area of land in the mahal, then the sale must be conducted by that officer. Rule 11(2), Ch. 4 of the General Rules (Civil) means only that an Amin of the Court shall conduct the sale if the sale is of property which under the Rules of the Local Government would not be sold by the Collector. For these reasons, I do not think that it can be said that the houses could not have been Bold because the Collector was conducting he sale of the mahal. Rule 11(2) applies equally to gardens and I do not suppose that it would be argued that a garden in a mahal could not be sold by the Collector if the whole mahal or a share of it was the subject of the sale.
38. One of my learned brothers mentions that the order of reference by the Bench of two Judges raises the question whether the houses in suit could be described as appurtenances to the zamindari and he is of opinion that they could not be so described because the other cosharers in the zamindari would have no right in them. He refers to the provisions of Section 118, Land Revenue Act, which is in the following terms:
If in making a partition it is necessary to include in the portion allotted to one cosharer the land occupied by dwelling houses or other buildings in the possession of another cosharer, the latter shall be allowed to retain it with the buildings thereon, on condition of his paying for it a reasonable ground rent to the cosharer in whose portion it may be included.
39. This is a provision describing what shall be done in the case of a partition. If one cosharer erects a building upon the joint land with the consent express or implied of the other cosharers I have no doubt that the other cosharers are not entitled to a share in the building. It would obviously be inequitable to allow them to benefit from the expenditure incurred with their consent by the eosharer who erected the building. Although there is no statutory provision in law upon the point I think that substantially the same rule might apply to a building in a town on land held by tenants in common or to a building on land held by members of a joint Hindu family erected by one of the members of the family out of his separate funds. A building in partition would go to the person who built it and if that were not possible he would probably be entitled to some compensation from the other cosharers. To say that other cosharers have no right in a building built by one of their number is not the same thing as saying that the building is not appurtenant to the share of the person who built it. Section 44, T.P. Act, is in the following terms:
Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property....
40. When a eosharer with the consent express or implied of the other cosharers erects a building on a part of the joint land there is an implied contract that he shall be allowed to occupy that particular piece of land to the exclusion of the other cosharers so long as the property is joint. He is allowed to that extent part enjoyment of the joint land and it seems to me that his transferee is entitled to the same part enjoyment. With the greatest deference I do not see that the provisions of Section 118, Land Revenue Act, affect in any way the provisions of the Transfer of Property Act about the transfer of the co-sharer's interests in the land with all that is attached to it. Indeed if the dwelling house of a zamindar has nothing to do with the zamindari it seems that there was no particular reason for mentioning it in the provisions for the partition of the zamindari property.
41. Another reason given for not applying the provisions of Section 8, T.P. Act, is that the dwelling house of a zamindar is occupied by him not in his capacity as a zamindar but as a separate entity. I can understand that there may be cases where a zamindar enters into a contract with the other cosharers in the mahal or with the whole body of cosharers to take a lease or a license of a particular plot of land to use it for some specific purpose and in these circumstances it may be that he is occupying the land not as a zamindar but as a lessee or licensee, but in my judgment where a zamindar builds merely a dwelling house upon part of the joint land just as other cosharers have done there, is an implied consent by the cosharers that he shall put part of the joint property to a particular use and in such circumstances I cannot nee in what capacity he is occupying the land if he is not occupying it as a zamindar or a cosharer in the mahal. No doubt the other cosharers are not entitled to a share in the house, but the particular cosharer who built it is occupying it in his capacity as a cosharer and it appertains to his particular share. Reference had been made to the general custom or practice or idea that a zamindar's house is something apart from his zamindari, but without examining a number of instances to see what particular transfers had been made and whether they did or did not include or were assumed to include or not to include the dwelling houses of a zamindar I do not think that it would be light to assert that the custom or idea is so prevalent that it must be held in every case that it is necessarily implied in a transfer of zamindari property unless the contrary is stated that the dwelling house of the zamindar is not included in the transfer.
42. A large number of rulings have been quoted to as, but I do not think that any such custom or usage can be inferred from them, nor do I think that they, except for the ruling in Abu Husan v. Ramzan Ali (1882) 4 All. 381, support the argument that a zamindar when he transfers his share does not transfer his dwelling house standing on the joint land. In Kanhaiya Lal v. Sheva Lal (1936) 23 A.I.R. All. 14, the provisions of Section 8, T.P. Act, were not mentioned at the Bar and wore not considered by the learned Judges. It was a case of a transfer at a sale in execution of a decree after attachment of the property and it may well be that the provisions of the Section were not mentioned because they did not apply. If there is a transfer at a sale by the Court after an attachment the question is what the Court intended to attach and presumably it attaches what the decree-holder asks it to attach. If the decree-holder does not choose to ask for attachment of the dwelling house it may well be argued that the dwelling house was never attached nor sold. Different considerations arise where there is a transfer by act of parties. The provisions of Section 8, T.P. Act, do apply to such a transfer and whether the transferor intended to transfer the dwelling house or not to transfer it he is supposed to know the law and his deed of transfer must be construed in the light of the provisions of the Section. Some of the other cases seem to support the proposition that the transfer of a mahal or a share in a mahal implies a transfer of the zamindar's house standing on land included in the mahal. In no single case has any Court considered the provisions of Section 8, T.P. Act, in this connexion and held that for any reason they did not apply to transfer of a share in a zamindari. In 54 Cal 66910 the question at issue was whether the word "estate" in the Bengal Act 11 of 1859 under which the property was sold in order to recover arrears of revenue included buildings upon the land. It was held that the term "estate" did not include the buildings in that particular Act. Their Lordships of the Judicial Committee of the Privy Council quoted the remarks of a Full Bench of the Calcutta High Court in 6 W E 22811 which were:
We have not been able to find in the laws or customs of this country any traces of the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it and is subject to the same rights of property as the soil itself.
43. Their Lordships accepted this dictum and said:
This being so, the word 'estate' must be taken to have a more limited meaning than it would have in English law and the Government power of sale for arrears of revenue prima facie is limited to the land, which is subject to the payment to the Government of the annual revenue and in respect of which the proprietor is entered in the general register of revenue paying estates and having special regard to the view held in India respecting the separation of the ownership of buildings from the ownership of the land, and to the recognition by the Courts in India that there is no rule of law that whatever is affixed or built on the soil becomes a part of it and is subject to the same rights of property as the soil itself, their Lordships are of opinion that in order to make a house erected upon the land, as well as the land itself, subject to the Government power of wile for arrears of revenue, special words indicating the intention of the legislature to make the building subject to sale would be necessary.
44. There is nothing in this ruling which loads to the conclusion that the provisions of Section 8, T.P. Act, do not apply to the transfer of land in a zamindari mahal and induced in the case before their Lordships it was not disputed that if the plaintiff's case was based upon a conveyance by the late proprietor of the land the house would flaw with the land to the purchaser. If this ruling is relevant at all to the question involved in the case before us, it seems to me to support the view which I am taking. For the reasons which I have given, I am of opinion that the answer to the question before the Full Bench should be that the property in the houses in suit did pass to the plaintiff Khacheru Singh under the auction sale on 26th January 1932.
45. The facts which have given rise to this Full Bench reference may be briefly stated. On 2nd January 1924, Umrao Singh mortgaged his share of zamindari in a certain village in favour of Khacheru Singh and others. A suit was brought on the basis of this mortgage and in execution of the final decree the property mortgaged was put up for sale and purchased by Khacheru Singh and others on 26th January 1932. The mortgage deed if not on the record of this case but the sale certificate is; and that shows that the entire zamindari interest of Umrao Singh including his interest in the abadi was sold without any reservation. Umrao Singh was the owner of three houses in the abadi of the village, and the question that has been referred to the Full Bench is:
Whether the property in the houses in suit passed to the plaintiff Khacheru Singh under the auction sale of 26th January 1932 or not?
46. The question does not present any difficulty if the deed of transfer or the sale certificate is clear on the point. If, for instance, the houses are definitely included they will obviously be deemed to be sol; if, on the other hand, they are definitely reserved, they will naturally not pass to the transferee or the purchaser. The surrounding circumstances may also be some guide in the matter, as indeed they were in certain cases that were cited before us al the bar, but when, as here, the words are not definite, the difficulty arises. Khacherr Singh and others, the purchasers at the auction sale of 26th January 1932, were the plaintiffs and Umrao Singh was the defendant. Courts below have decided in favour of the plaintiffs and they hold the view that the property in the houses in suit passed to the plaintiffs. The defendant is the appellant before us and his contention is that the auction sale of 26th January 1932 did not affect the houses. I do not find it necessary to discuss the cases that were cited before us, for they have been discussed in the judgments of my learned brethren. Reliance is placed by the plaintiffs on Section 8, T.P. Act, and on behalf of the defendant the case in Kanhaiya Lal v. Sheva Lal (1936) 23 A.I.R. All. 14 is cited.
47. The plaintiffs submit that on a transfer of property all the interest which the transferor ia capable of passing in the property is transferred forthwith to the transferee and where the property is land all things attached to the earth - buildings are things attached to the earth - pass to the transferee. This is Section 8, T.P. Act, and although the Section occurs in Ch. 2 which deals with "transfers of property by act of parties" and is not necessarily applicable to a Court sale, for what is sold at a Court sale is the right, title and interest of the judgment-debtor and the extent of that interest is a mixed question of fact and law which has to be decided according to the circumstances of each particular case and depends principally on what the Court intended to sell and the purchaser to buy, yet if Section 8 be held to be applicable even to Court sales, I venture to suggest that in a case like this it is necessarily implied that the houses do not pass under the transfer by the auction sale.
48. In these Provinces zamindari property and house property are considered two different and distinct kinds of properties. Any person, if a question is put to him as to the extent of his property, will mention his zamindari property and his house property as two separate items of property and will not include his house property within his zamindari property. Unless therefore a house is intimately connected with a person's zamindari - for instance, where it is a collection house - the two kinds of properties are of different species and by necessary implication on a transfer of zamindari the houses within that zamindari would not pass. If a zamindar mortgages his zamindari usufructuarily, I do not think I the mortgagee will dream of ejecting the zamindar from his residential houses or the zamindar will think that he has got to put the mortgagee in possession of his houses as well. I am therefore of the opinion that the plaintiffs cannot get any help by relying on Section 8, T.P. Act, for that Section is prefaced with the words, "unless a different intention is expressed or necessarily implied." I then hold the view that the case in Kanhaiya Lal v. Sheva Lal (1936) 23 A.I.R. All. 14 was rightly decided. It was pointed out therein that a cosharer in an undivided village has a proprietary title in three things in the case of a house, (1) a joint right in the site, (2) a proprietary right in the materials and (3) a right of residence in the house on the site. Even if we have Section 8 in view, it is impossible to say that a right of residence in the house on the site is a thing attached to the earth. The materials may, however, be included within the aforesaid words "attached to the earth," but I think that by the auction sale a joint right in the site only was transferred. The entire land underneath the houses could not and did not pass to the transferee in the present case because the transferor was only a joint cosharer in the site which was undivided and some of the materials would not be attached to that portion of the land or earth which was sold. The auction purchaser cannot therefore in any event lay claim to all the materials.
49. In the present case after the auction sale Umrao Singh executed a deed of gift of the three houses in suit on 11th March 1932 in favour of his daughter-in-law Mt. Chhawari, defendant 2, and the Courts below have found that the donee is in possession of the three houses and Umrao Singh is living in a different village and has also sublet his cultivatory holdings. Although the matter has not boon referred to the Full Bench, I am of the opinion that Umrao Singh, who was a zamindar and who was entitled to transfer his houses to whomsoever he liked while he remained a zamindar, did not lose this right after losing his zamindari share and his status did not degenerate to that of a mere ryot who, according to the custom of the Province, is, in an agricultural village (even if it be assumed that the village in the present case is an agricultural village) precluded from transferring his right of residence in a house to an outsider against the wishes of the zamindars. My answer therefore to the reference is that the property in the houses in suit did not passs to the plaintiff Khacheru Singh under the auction sale of 26th January 1932.
Ganga Nath, J.
50. The following question has been referred for consideration to the Full Bench:
Whether the property in the houses in suit passed to the plaintiff Khacheru Singh under the auction sale on 26th January 1932 or not?
51. The property in this case as will appear from the question itself was purchased by the plaintiff Khacheru Singh in an execution sale. The case of an auction sale is different from that of a private sale. A private sale is governed by the provisions of the Transfer of Property Act. What passed with a private transfer of property is to be construed in accordance with the provisions of Section 8, T.P. Act, which is as follows:
Unless a different intention is expressed or necessarily implied, a transfer of property passes forth-with to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof.
Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth....
52. Section 3, T.P. Act, defines the expression "attached to the earth" as follows:
(a) Rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.
53. But Section 8 does not apply to a transfer which takes place by operation of law or by a Court sale. Section 2, Clause (d) provides:
...But nothing herein contained shall be deemed to affect : (d) save as provided by 8. 57 and Ch. 4 of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction....
54. Where the question is what has been sold in a Court sale, it will have to be decided from what the Court intended to sell and will be judged from the sale certificate issued by the Court. In Abdul Aziz Khan v. Appayasami Naicker (1904) 27 Mad. 131, their Lordships observed at p. 141:
Each case however must depend upon its own circumstances, and "in all the cases, at least the recent oases, the inquiry has been what the parties contracted about if there was a conveyance, or what the purchaser had reason to think he was buying if there was no conveyance, but only a sale in execution of a money decree" : Simbhunath Pande v. Golap Singh (1887) 14 Cal. 572 at p. 83, As Lord Watson put it in the course of the argument in Pettaich Chettiar v. Sangili Vira Pandia (1887) 10 Mad. 241, in the case of a sale in execution of a money decree, the questions are, what did the Court intend to sell, and what did the purchaser understand that he bought? These are questions of fact, or rather of mixed law and fact, and must be determined according to the evidence in the particular case.... The rights of the parties to a contract, as Willes J. observes in delivering the judgment of the Court of Exchequer Chamber in Lloyd v. Guibert (1866) 1 Q.B. 115 at p. 133, are to be judged of by that law which they intended, or rather by which they may justly be presumed to have bound themselves.
55. As regards the rights of the parties to a contract, as stated already, they will be governed by the provisions of the Transfer of Property Act which applies to transfers of property by act of parties. The rights of a purchaser at a Court sale are different from those of a purchaser at a voluntary sale. It may be said that though the provisions of Section 8, T.P. Act, do not apply to a sale by operation of law, the principle underlying those provisions may apply to a purchaser made at a Court sale in execution of a mortgage decree as it would be anomalous if there were two constructions of the transfer of the same property which has been mortgaged in the mortgage deed and sold in execution of the decree obtained thereon. It may be that in some cases of doubt or ambiguity the mortgage deed may have to be looked at in order to find out what property was mortgaged and sold if the whole of the property mortgaged has been sole in the execution sale with the same description as is given in the mortgage deed, and in order to ascertain what was mortgaged the aid of Section 8, T.P. Act, may have to be taken. But it is not essential that the whole of the mortgaged property may be sold. In a Court sale it will always be a question to ascertain what the Court intended to sell and actually sold, and it will have to be judged from the sale certificate granted by the Court specifying the property sold. Section 8, T.P. Act, will not apply to the interpretation of the sale certificate. The sale certificate which is the title deed of the auction-purchaser, will have to be interpreted independently of Section 8, T.P. Act.
56. In the present ease, 11 bighas 14 biswas 6 biawansis land pukhta arazi out of Khata Khowat No. 1 and proportionate land from Khata Khewats Nos. 17 and 10 in Nawada Kalan, pargana Garh Muktesar, Tahsil Hapur, with all the rights in the abadi, etc. were sold, as mentioned in the sale certificate. There is no mention of the residential houses of the judgment-debtor in the property sold. It is therefore clear that the residential houses were not sold. All that was sold was land, the zamindari share of the judgment-debtor. A cosharer may build a house for his residence on a joint piece of land. His cosharers will have no right or interest in the house. His cosharers have a right or interest jointly with him only in the site of the house. The cosharers will not get any share in the house at the time of the partition or any consideration therefor. It cannot be said to whose share the site would be allotted in the partition. It is quite possible that the site of the house may be allotted to the share of another cosharer, in which case as provided in Section 118, Land Revenue Act, the owner of the house will have to pay a reasonable rent for the site to the co-sharer to whose share the site may be allotted.
57. With the sale of the zamindari rights of a cosharer in a Court sale only that property which is owned by him as a zamindar will pass to the purchaser. The test of what is owned by him as a zamindar is whether the other cosharers have any interest or right in it and whether it is owned and enjoyed in common by all the cosharers. Such is not the case with the residential house which is built by one of the cosharers. The other cosharers, as already stated, have no right or interest in the materials, nor have they any right of residence in the house. Whatever may be the case of a private sale, which will be construed in accordance with the provisions of Section 8, T.P. Act, it cannot be said that the house passes with the sale of the zamindari share in execution of a decree. On the sale of the zamindari share in execution of a decree, a cosharer will continue to remain the owner of the materials and retain the exclusive right of residence which he had-acquired before the sale.
58. In India there is no absolute rule of law that whatever is affixed or built on the soil becomes part of it and is subject to the same right of property as the soil itself. In Narayan Das v. Jatindra Nath (1927) 14 A.I.R. P.C. 135, an estate was sold under Act 11 of 1859 for arrears of revenue. The defaulting owner had made certain constructions on it. The question was whether those buildings passed with the land. Their Lordships observed at page 676:
...The following statement however is to be found in the judgment of the Full Bench, Thakoor Chunder v. Ram Dhone (1866) 6 W.R. 228 which was delivered in 1866 : 'We have not been able to find in the laws or customs of this country any traces of the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself.... This being so, the word "estate" must be taken to have a more limited meaning than it would have in English Law and the Government's power of sale for arrears of revenue prima facie is limited to the land, which is subject to the payment to the Government of the annual revenue, and in respect of which the proprietor is entered in the general register of revenue-paying estate, and having special regard to the view held in India respecting the separation of the ownership of buildings from the ownership of the land, and to the recognition by the Courts in India that there is no rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself, their Lordships are of opinion that in order to make a house erected upon the land, as well as the land itself, subject to the Government power of sale for arrears of revenue, special words indicating the intention of the Legislature to make the building subject to sale would be necessary.
59. In the absence of anything in the sale proceedings and the sale certificate to show clearly that a land with the buildings thereon was sold the sale of mere land will not pass buildings thereon to the purchaser. If there are however any buildings which form part of, and are appurtenant to the zamindari, e.g. the bazars or tenants houses in the abadi they will certainly pass with the zamindari not because they are attached to the land sold but because they are part and parcel of the zamindari sold. My answer therefore to the question is that only the ownership in the situ passed to the plaintiff Khacheru Singh, but the right of residence and the ownership in the materials remained with his judgment, debtor.
60. Let a reply be sent to the Bench hearing the S.A. No. 1117 of 1935 that in the opinion of the majority of the Judges composing the Full Bench the property in the houses in suit did not pass to the plaintiffs Khacheru Singh, etc. under the auction sale of the 26th January 1932.