PACHIGOLLA SATYANARAYANAMURTHY Vs. CHAVALA GANGAYA

JUDGEMENT

(1.) This appeal arises out of a suit for the recovery of money due under certain mortgages executed by defendants 1 and 2 in favour of the plaintiff between June 1927 a June, 1928-Exs. A to D series. Defendants 3, 5 and 7 are the contesting defendants and the dispute between the plaintiff and the defendants relates to the extent of the property comprised in the mortgages in plaintiff's favour.

(2.) The plaintiff's mortgages comprise properties described in three Schedules A, B and C. Schedule A relates to certain house property with which we are not concerned. Schedule B refers to a tiled building which was being constructed on a site belonging to Gangachalam and others and purports to pass the walls, beams, door frames, etc., of the building. From the body of Ex. A it will be seen that this site had been taken on lease for a period of 12 years for the purpose of constructing a building thereon for a rice mill. Schedule C comprises an engine which is said to be known by the name of Sree Kanakadurga Rice Mill and the various parts of the machinery pertaining to the engine or to the Huller which was then intended to be set up to work with the help of the engine. The concluding words of the C Schedule refer to all samans connected with the rice mill and other samans necessary to fit up the mill and the Huller and all accessories. There is also a clause to the effect that if the mill should be fitted up in some other place, the property should nevertheless continue to be under the mortgage. It is admitted that for some time the concern was working only as a Huller. In the latter part of 1928, the mortgagors decided to work as a Sheller also with the power derived from the engine. For purchasing the Sheller and for incidental purposes, they borrowed moneys from defendants 3, 5, 7 and certain others under Exs. I and II in July and November, 1928. In due course, the Sheller was also set up in the shed that had already been constructed and the third defendant admits in his deposition that the Sheller system was fixed in the earth that it was connected by a belt with the Huller system and that power from the same engine was used for working both the systems. It also appears from the evidence that the Sheller system can be separated from the Huller system merely by removing the belt and that for accounts purposes, the two systems are kept distinct. On the above facts, the question for determination is whether the plaintiff can claim that the machinery pertaining to the Sheller system is also comprised in his security. The learned Subordinate Judge has held that it is not. The plaintiff has appealed and contends that it should be held to be included in the security.

(3.) In support of the appellant's contention, Mr. Lakshmanna relied on Section 70 of the Transfer of Property Act and the decisions in Bank of Upper India V/s. The Administrator-General of Bengal (1917) I.L.R. 45 Cal. 653, R.M.P.M. Chettiar Firm V/s. Siemens (India), Ltd. (1933) I.L.R. 11 Rang. 322, Punjab and Sind Bank v. Kishen Singh-Gulab Singh (1934) I.L.R. 16 Lah. 881 and Nannu Mal V/s. Ram Chandra (1930) I.L.R. 53 All. 334 (F.B.). It does not seem to us necessary for the purpose of this ease to consider whether and how far the rules of the English law governing fixtures are to be followed in this country. It is sufficient to say that in respect of particular species of transfers, the Legislature has made express provisions In the Transfer of Property Act, see for instance Section 8 and Section 108, Clause (h). We are prepared to assume that in certain circumstances, machinery existing in the mortgaged premises on the date of the mortgage and even machinery subsequently installed there may pass under a mortgage of the premises. But the question will, in our opinion, have to be determined in each case in the light of various facts. It may not be possible always to treat machinery brought into a building as an "accession" within the meaning of Secs.63 and 70 of the Transfer of Property Act. It may in some cases become necessary to consider how far the definition of the expression "attached to the earth" in Section 3 of the Transfer of Property Act will bear upon the decision of this question. According to Clause (c) of that definition, what is attached must be attached for the permanent beneficial enjoyment of that to which it is attached.