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JasudIn Ambir Saheb Faki Vs. Sakharam Ganesh Shrotri - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Case NumberSecond Appeal No. 571 of 1909
Judge
Reported in(1911)13BOMLR1042; 12Ind.Cas.693
AppellantJasudIn Ambir Saheb Faki
RespondentSakharam Ganesh Shrotri
Excerpt:
.....transfer of transfer of property article (iv of 1882), section 6 sale of leak and black:-wood trees--contract. ;the defendant, the occupant of certain survey nos., agreed to sell to the plaintiff, on the 21st july 1904, stumps of leak and blackwood trees in his survey numbers at the rate of rs. 6 per 100 stamps. at the date of the sale, the defendant had, by virtue of a g.r. dated 27th septmber 1897, a privilege of pre-emption in those stumps. later on, on the 11th may 1905, government abolished the pre-emption; and directed that in its stead 10 per cent. of the not proceeds of the sale by the forest department of the trees, should be paid to the occupant, which percentage was a gift from government and subject to no tribunal. the plaintiff sued to recover from the defendant the 20..........we have referred) whereby (when the right to the after-growth was no longer disposed of with the standing trees but was reserved to government,) a privilege of pre-emption was granted in respect of such trees to the occupants of the lands on which they were growing. but by a resolution no. 3874, dated the 11th of may 1905, the government of bombay modified their said resolution. this latter resolution, after reciting that the privilege of pre-emption sanctioned by the previous resolution had led to large gains being made by brokers and traders, which represented corresponding loss to the government and the occupants, goes on to say that the governor in council sees no sufficient reason for continuing to occupants the privilege of pre-emption when the rights of the after-growth are no.....
Judgment:

Russell, J.

1. This case raises a curious and interesting point. The plaintiff Jasudin sued to recover from the defendant Sakharam Ganesh the sum of Rs. 2,350-11-5 which he said was due to him under a contract dated the 21st of July 1904. The terms of the contract are to be found in the receipt Exhibit 26. In that document it appears that the defendant, who is the occupant of about twenty Survey Numbers in the village Indgaon in the Vada Taluka, agreed to sell teak and blackwood trees in those Survey Numbers to the plaintiff at Rs. 6 per every 100 Stumps. The plaintiff was to pay certain fees and expenses in connection with those trees etc. Rs. 15 was paid by the plaintiff to the defendant as earnest.

2. At the time when this contract was entered into there was in existence Government Resolution No. 7114, dated the 27th of September 1897, (to which we have referred) whereby (when the right to the after-growth was no longer disposed of with the standing trees but was reserved to Government,) a privilege of pre-emption was granted in respect of such trees to the occupants of the lands on which they were growing. But by a Resolution No. 3874, dated the 11th of May 1905, the Government of Bombay modified their said Resolution. This latter Resolution, after reciting that the privilege of pre-emption sanctioned by the previous Resolution had led to large gains being made by brokers and traders, which represented corresponding loss to the Government and the occupants, goes on to say that the Governor in Council sees no sufficient reason for continuing to occupants the privilege of pre-emption when the rights of the after-growth are no longer disposed of with the standing trees but is reserved to Government etc. The Governor in Council accordingly directs that the Forest Department should cut and remove for sale the teak standing in unoccupied Warkas land or, when such a course is found preferable, sell it standing on condition of immediate removal, and that 20 per cent. of the net proceeds of the sale should be paid to the occupant, which percentage should be a gift from Government and subject to no tribunal and in case the Collector is unable to settle summarily any disputes as to who is the occupant of any particular Survey Number, the percentage share of that number should be credited not to any of the disputants but to the Taluka Local Board for expenditure in the village to which the Survey Number belongs.

3. The plaintiff, under his contract above-mentioned, claims the above sum, being 20 per cent. of the net proceeds of the trees in question. The defendant contended that the teak and black-wood trees were not his property but the property of Government and that the plaintiff was only entitled to a refund of the Rs. 15 earnest money, which the defendant brought into Court.

4. The learned Subordinate Judge passed a decree in favour of the plaintiff for the amount claimed, which the lower appellate Court reversed and dismissed the suit; but directed the earnest money Rs. 15 to be paid to the respondent.

5. The question we have now to decide, therefore, is: Is the plaintiff entitled to this 20 per cent. being the value of his vendor's right of pre-emption? Mr. Jayakar for the appellant-plaintiff argued that he was; and relied on the analogy of Section 43 of the Transfer of Property Act. But it appears to us that no analogy can be based on that section, because standing timber, which this contract deals with, by Section 3 is not included within immoveable property. Mr. Jayakar further relied upon Section 18 of the Specific Relief Act, the material portion of which runs as follows:--' Where a person contracts to sell or let certain property having only an imperfect title thereto, the purchaser or lessee (except as otherwise provided by this chapter) has the following rights:--(a) if the vendor or lessor has, subsequently to the sale or lease, acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest.' But it appears to us that that section is not applicable, because the position of the defendant here was not that of a person having only an imperfect title to the property he contracted to sell: his sole right was a right of pre-emption, which has been defined as 'a right in the event of a sale to purchase the property upon agreed terms.' (Encyclopaedia of English Law.)

6. What the plaintiff is claiming is a right of pre-emption pure and simple. Whether, as the lower appellate Court held, the defendant could convey the trees seem to us immaterial. For under Section 6 of the Transfer of Property Act a right of pre-emption cannot be transferred. See Clauses (b) and (d) of that section. We hold a right of pre-emption to be a purely personal right which cannot be transferred to anyone except the owner of the property affected thereby. Thus it has been held that a lessor having the right to re-enter on breach of covenant by his lessee may transfer the reversion, passing with it the right of re-entry, but cannot transfer that right itself, Vaguran v. Rangayyangar ILR (1891) Mad. 125. Similarly a license to enter and take possession of goods cannot be assigned. In re Davis & Co., Ex parte Rawlings (1888) 22 Q.B.D. 194. And a bare license to seize chattels cannot legally be assigned: Brown v. The Metropolitan Counties Life Assurance Society (1859) 28 .Q.B. 236.

7. What the plaintiff is claiming is a gift or bonus from Government to the defendant under G. R. 3874 above referred to, which gift or bonus was not and could not have been in the contemplation of the parties when the contract was entered into and which by itself was not transferable. Consequently the plaintiff is not entitled to recover it but only Rs. 15 from the defendant; and we must confirm the decree of the lower appellate Court and dismiss this appeal with costs. There can be no question that if the plaintiff had sued the defendant to recover damages for breach of contract different considerations would have applied.


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