1. This is a reference by the Judge of the Court of Small Causes at Saharanpur under Order 46, Rule 1 of the Civil Procedure Code asking this Court to express its opinion in regard to two questions which are set out in the order of reference. The matter is really a very simple one. The plaintiff was the owner of a mango grove of which she gave the crops to the defendants for three years at an annual price of Rs. 400. The defendants took the crops for the first year and paid the price. They took the crops for the second year but did not pay, with the result of a suit by the plaintiff for a sum of Rs. 400 and Rs. 31 interest.
2. The first question that we are asked is whether a contract for sale of a crop of mango fruit not in existence at the time of the contract is a contract relating to movable or immovable property?
3. We have not the smallest hesitation in. holding that it is a contract in reference-to movable property and as such did not require a registered document. Growing, crops are excluded by Section 2, Sub-Section 6 of the Registration Act from the term 'immovable property' and are similarly included by Sub-section 9 in the term 'growing crops.' The only suggestion made to us on behalf of the defendants is that the crop was not, in fact, growing at the time the arrangement was entered into. This seems to us; a purely artificial distinction. To allow it any force at all would be to create a situation in which no one could ever possibly know whether a particular agreement dealt with movable property or whether it did not. This is sufficiently plain from the consideration that it is entirely impossible to know exactly at what moment a crop comes into existence or whether it was or was not in existence at any particular moment or on any particular tree. We are quite satisfied that the fact that the crop was not actually in existence at the time does not take it out of the category of a 'growing crops', it would of necessity be a growing crop at the time the contract took effect; and, therefore, the subject of the contract was movable property. We have considered those of the cases quoted by the learned Judge of the Court of Small Causes which are in the least degree relevant. Of these there are only two cases which are really in point. The learned Judge quotes Mathura Das v. Jadubir Thappa (1906) 28 All. 277, as being a case relied upon by the defendants. It is admitted here that, in fact, no reliance can be placed on it on behalf of the defendants. It is directly in favour of the plaintiff. The other case is Sukry Kuddeppa v. Goondakul Nagireddi (1871) 6 M.H.C. 71, a case in which the dispute was about an agreement providing for the drawing of toddy from palm trees. We need not deal with that case any further than to say that we are unable to appreciate the distinction between the fruit of a tree and the juice which is drawn from the trunk of that tree. In both cases there is obviously a question of the produce of the tree and in both case s the tree is left standing after the removal of the produce. Further, it appears to us that the decision in Sukry Kuddeppa v. Goondakul Nagireddi (1871) 6 M.H.C. 71 was directly in the teeth of the Registration Act (No. 20 of 1866), Section 2 which wa3 then in force and which was not referred to. There again we have movable property declared to include growing crops and fruit upon trees. We have already said that we fail to see any distinction between the fruit of a tree and the juice of a tree and moreover in Sub-section 9 of Section 2 of the present Registration Act (Act No. 16 of 1908) the words 'juice in trees' have been expressly added to the definition of movable property. It is not necessary to d8al farther with either of these cases. We answer the first question of the learned Judge of the Court of Small Causes by saying that a contract for sale of mango and other fruit crop not in existence at the time of contract is indubitably a contract with regard to movable property only and as such does not require registration.
4. The second question is whether an agreement in writing, but unregistered, executed by the purchaser of the crop binding himself to pay the price of future crops, which he might have purchased through an oral agreement, is binding on him, and can be proved against him?
5. We have had the document in question read to us. It is certainly in no sense a formal document at all. There is a complete absence of any words of actual transfer. The nearest approach to those words is that there is a statement that bag hamare pass rahega. But reading the document as a whole we have no hesitation in saying that it was in no sense a formal agreement but that it merely contains a brief memorandum of notes of what was agreed between the parties.
6. Under these circumstances we hold that there was no need for the document to be registered and that the contract could be proved aliunde. With this answer let the reference be returned. The costs will be costs in the cause.