Ashloke Singh v. Bodha Ganderi

Ross, J.:— The subject-matter of this suit is a mango tree. The plaintiff respondent sought a declaration of his right to, and recovery of possession of the tree which he said had been given to him by one of the proprietors of the village by an unregistered and unstamped chithi, dated the 12th of Kartik 1315. The defendants pleaded that the plaintiff had no right to the tree and that the chithi being unstamped and unregistered was not admissible in proof of his title.

2. The learned Munsif dismissed the suit on the ground that the chithi operated as a deed of gift relating to immovable property; that there was no evidence that the mango tree was taken only as standing timber; but that the possession and enjoyment of the fruits of the tree by the plaintiff went to show that the plaintiff wanted to take an interest in immovable property, and that therefore the chithi ought to have been stamped and registered. The chithi was not produced, but it was admitted that it was neither stamped nor registered. The Munsif therefore held that the plaintiff had failed to establish his title to the tree. The learned Subordinate Judge reversed this decision. He held that the plaintiff had been in possession of the tree from 1319 until 1327. As the chithi was not produced, he was of opinion that the legal position came to this that the plaintiff got the tree under an oral gift accompanied by delivery of possession.

3. He held that under the definitions in the Transfer of Property Act and the Indian Registration Act “standing timber” is not immovable property; that in this part of the country planks of mango wood are often used for making leaves of doors and windows and similar other purposes; and that therefore the tree was standing timber, and consequently there was no necessity for a stamped and registered instrument. He therefore held that the plaintiff acquired a good title by the oral grant and decreed the suit.

4. The question in the appeal is whether the mango tree is moveable or immovable property. The learned advocate for the appellants contended that the question is a question of intention. If the intention was that the plaintiff should enjoy the fruit of the tree and not cut it down as timber, then it was immovable property and could only be conveyed by a registered instrument. Reference was made to Section 3 of the Transfer of Property Act, where it is declared that “Immovable property does not include standing timber, growing crops or grass” and it was argued that these three terms must be treated as ejusdem generis with the common idea of immediate severance. In Shephard and Brown's Commentary on the Transfer of Property Act, the learned commentators say: “In excepting standing timber, growing crops, and grass from the category of immovable property, regard has probably been had to the fact that they are all things usually contemplated as severable, or in ended to be severed, from the soil. When such severance is not intended, but on the contrary it is contemplated that the purchaser of the trees should derive some benefit from their further growth, it is an interest in immovable property that the purchaser takes.” In Section 2 of the Indian Registration Act “Immovable property” is defined as including certain things. “but not standing timber, growing crops nor grass.” Rustomji in his Commentary on this Act says: “If trees are sold with a view to the purchaser's keeping them permanently standing and enjoying them by taking their fruits or otherwise, the sale would be a sale, of immovable property.” The matter was very fully discussed in Marshall v. Green(1) where the question was whether a contract for the sale of growing timber was within the fourth section or the seventeenth section of the Statute of Frauds, that is, whether it was for a sale of an interest in land or of a chattel. In his judgment in that case Lord Coleridge, C.J, said, “I find the following statement of the law with regard to this subject, which must be taken to have received the sanction of that learned Judge, Sir Edward Vaughan Williams, in the notes in the last edition of Williams Saunders upon the case of Duppa v. Mayo, p. 395. The principle of these decisions appears to be this, that wherever at the time of the contract it is contemplated that the purchaser should derive a benefit from the further growth of the thing sold from further vegetation and from the nutriment to be afforded by the land, the contract is to be considered as for an interest in land: but where the process of vegetation is over, or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold and the contract is for goods.” …. Here the contract was that the trees should be, got away as soon as possible, and they were almost immediately cut down. Apart from any decisions on the subject, and as a matter of common sense, it would seem obvious that a sale of twenty-two trees to be taken away immediately was not a sale of an interest in land, but merely of so much timber.” Brett J., said in his judgment “If the thing not being fructuous indmtrialis, is to be delivered immediately, whether the seller is to deliver it or the buyer is to enter and take it himself, then the buyer is to derive no benefit from the land, and consequently the contract is not for an interest in the land, but relates solely to the thing sold itself. Here the trees were timber trees and the purchaser was to take them immediately; therefore applying the test last mentioned, the contract was not within the 4th section.” Grove J., said “It seems to me that in determining the question whether there was a contract for an interest in land, we must look to what the parties intended to contract for. In all the cases this has been made the test. In the case of Smith v. Surman(2) it was argued by Russell Serjt., that “a sale of crops, or trees, or other matters existing in a growing state in the land may or may not be an interest in land according to the nature of the agreement between the parties and the rights which such an agreement may give, and that view was adopted by the Court in giving judgment ……. Here the trees were to be cut as soon as possible: but even assuming that they were not to be cut for a month, I think that the test would be whether the parties really looked to their deriving benefit from the land, or merely intended that the land should be in the nature of a warehouse for the trees during that period. Here the parties clearly never contemplated that the purchaser should have anything in the nature of an interest in the land; he was only to have so much timber, which happened to be affixed to the land at the time, but was to be removed as soon as possible, and was to derive no benefit from the soil.” The same view was taken in Seeni Chettiar v. Santhanathan Chettiar(3) by the Full Bench, where Collins C.J, said “It has long been settled that an agreement for the sale and purchase of growing grass, growing timber or underwood, or growing fruit not made with a view to their immediate severance and removal from the soil and delivery as chattels to the purchaser, is a, contract for the sale of an interest in land.” Subramania Ayyar, J. said. “It is scarcely necessary to observe that though standing timber is, under the Registration Act III of 1877, movable property only, still parties entering into a contract with reference to such timber may expressly or by implication agree that the transferee of the timber may expressly or by implication agree that the transferee of the timber shall enjoy, for a long or short period, some distinct benefit to arise out of the land on which the timber grows. In a case like that, the contract would undoubtedly be not one in respect of mere moveables, but would operate as a transfer of an interest in immovable property.” It is true that a somewhat different view was taken in Krishnarao v. Babaji(4) where in a case very much like the present their Lordships observed “No doubt by the term “timber” is meant properly such trees only as are fit to be used in building and repairing houses. A mango tree, which is primarily a fruit tree, might not always come within the term, but in this respect the custom of a locality has to be considered;” and it was held with reference to the local custom that a mango tree was a timber tree and therefore an unregistered deed was admissible to prove its transfer.

5. The learned advocate for the respondent relied on the finding of the Subordinate Judge, that in this part of the country mango trees are timber, and he also referred to a decision of this Court in Second appeal No. 955 of ??? where this was held to be common knowledge. That, however, was a case relating to trees-which had been cut as timber. The present case is a case of a conveyance of a growing mango tree of which, according to the finding of the Subordinate Judge, the plaintiff continued to be in possession and to enjoy the fruits for a period of eight years. In these circumstances, it seems to me impossible to hold that the tree was conveyed as standing timber. The parties intended that the plaintiff should enjoy the fruits of the tree for an indefinite period. The immediate, or approximately immediate severance of the tree from the land was not within the contemplation of the parties, as the subsequent events proved. Therefore, in my opinion, this tree was not sold as standing; timber, but the transfer was a transfer of an interest in the lard. The deed of gift therefore, required to be stamped and registered and the transfer could not be effected by an unregistered chithi or by an oral gift. In my opinion, therefore the plaintiff had no title to this tree and the decision of the learned Munsif was right.

6. I would, therefore, allow this appeal, set aside the decision of the Subordinate Judge and dismiss the plaintiff's suit with costs throughout.

7. Appeal allowed.