TaxTMI 
TaxTMI 
1982 (6) TMI 138
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....between the six persons as the lands being contiguous lent themselves for 'joint and common cultivation'. Partnership was formed with a view 'to develop and exploit lands jointly'. Clause 4 stipulated as under : "The firm will carry on the development and exploitation of the lands belonging to the partners and situate at Annmalai Hills village, bearing Survey No. 1/1 and/or such other business or businesses as the partners may from time to time decide." The lands themselves, which did not form part of the assets of the firm, were placed at the disposal of the firm. Clause 18 of the deed placed the following restriction on alienation of these lands which continued to belong to the partners : "No partner shall sell, mortgage, lease any cha....
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....n continuous possession of the gifted lands on 1-4-1973 and the lands were brought into common stock as assets of the firm with effect from 1-4-1976. We are, in the present order, concerned with valuation of the gift as per settlement made on 28-8-1972. 3. The GTO has stated in the order that the assessee had gifted his share of interest in the partnership firm to his minor son. It is for this reason that he included not only the market value of lands but also the current account balance of Rs. 2,623 which stood in the assessee's name. The first appellate authority pointed out that current account balance was not the subject-matter of gift. As for lands, he took the view that the lands were subject to partnership rights. To get absolute ri....
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....erty along with others for 'joint and common cultivation'. It is, no doubt, correct to say that the lands continued to belong to her and did not form part of the assets of the firm. But they were placed at the disposal of the firm for the purposes of the firm. In other words, the lady had given up her right to exclusive possession in favour of a joint and several rights to possession along with her co-partners though she continued to be the owner. It was not possible for her to revert to exclusive possession unilaterally. Clause 18 ensured it by providing that the ownership could not be alienated either by way of sale, mortgage, lease, or in any other manner except with the consent of other partners. There was also a right of pre-emption in....
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....oom's Legal Maxim 262 "Quiquid plantatur solo, solo cedit" which means that whatever is affixed to soil belongs to the soil. In other words, land and improvements are not severable. But this is not a maxim of general jurisprudence and it has been held not universally applicable to India. Shri S. M. Lahiri's commentary on Transfer of Property Act (8th edition, Eastern Law House) has this to say on the subject : "Quiquid plantatur solo, solo cedit --- Whatever is affixed to the soil belongs to the soil. Under the maxim, 'whatever is affixed to the soil becomes, in contemplation of law, a part of it and is subjected to the same rights of property as the soil itself'. (Broom's Legal Maxim 262) But this is not a maxim of general jurisprudence ....
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.... ; In re Thakoor Ch. Paramanick B. L. R. Supp. Vol. 595 (FB). In the last cited case their Lordships observed : 'We think it is clear that according to the usages and customs of the country, buildings and other such improvements made on land do not, by the mere accident of their attachment to the soil, become the property of the owner of the soil, and we think it should be laid down as a general rule that if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building, if it is allowed to remain for t....
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.... such lands were subject to contractual obligations created by the partnership deed. Even as noticed, there is also not only the right of pre-emption in favour of co-partners in the event of a sale but even the right to determine the price at which the lands have to be sold in view of clause 18 of the deed reproduced in paragraph 2. Besides, those restrictions created by the contract of partnership are not only binding on the partners during their lifetime but also on their legal heirs vide clause 20 of the deed which stipulates that there will be no dissolution of partnership on death of partner and provides for the legal heir to be a partner. It would appear from clause 24 that retiring partner or legal heirs of deceased partners cannot o....