ANGAMMAL Vs. MMSASLAMI SAHIB

JUDGEMENT

(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. Vol. (F.B.), 595 at p. 597, which is cited in Ismai Kani Rowthan v. Nazarali Sahib (1904) I.L.B., 27 Mad., 211 at p. 214, 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 at p. 214," 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. Vol. (F.B.), 595 at p. 597, 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. Sup.Vol. (F.B.), 595 at p. 597, 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."