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Baijnath Vs. Ramadhar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 299 of 1957
Judge
Reported inAIR1963All214
ActsRegistration Act, 1908 - Sections 2(6), 17 and 49
AppellantBaijnath
RespondentRamadhar and anr.
Appellant AdvocateD.N. Jha and ;R.N. Misra, Advs.
Respondent AdvocateKalbe Mustafa, Adv. for Respondent No. 2
DispositionAppeal allowed
Excerpt:
property - registration - sections 2(6),17 and 49 of registration act, 1908 - sisham and neem trees sold by owner by sale deed - sale deed not registered - determination whether tree is standing timber - nature of trees and intention of parties - held, trees were standing timber and sale deed was admissible in evidence. - - if an intention to cut it down, at any time in future is enough, it is as good as not decisive. 11. as regards the actual intention, the appellant stated, in the examination-in-chief, that he would cut down the trees when he found it necessary, and, in cross-examination, that his intention is to keep the trees like jaidad and that he has been watching them. i would, however, like to adopt a different line of reasoning in arriving at the said conclusion. on the other.....desai, c.j.1. this case has been referred to a larger bench on account of a conflict among decisions on the question whether standing sisham and nim trees are standing timber within the meaning of section 2(6) of the registration act.2. one shanker bux singh was the owner of plots of land situated by the side of a district board road. sisham and nim trees stood on the plots of land. shankar bux singh sold out of them25 sisham and 2 nim trees to the appellant. (only the trees were sold and not the land on which they stood.) in the sale deed the vendor simply stated that he had sold the trees for rs. 100/- to the appellant; nothing was said about the trees being cut or allowed to remain standing on the land, or about any right granted to the appellant to tend them, and the appellant was not.....
Judgment:

Desai, C.J.

1. This case has been referred to a larger bench on account of a conflict among decisions on the question whether standing sisham and nim trees are standing timber within the meaning of Section 2(6) of the Registration Act.

2. One Shanker Bux Singh was the owner of plots of land situated by the side of a District Board road. Sisham and nim trees stood on the plots of land. Shankar Bux Singh sold out of them25 Sisham and 2 nim trees to the appellant. (Only the trees were sold and not the land on which they stood.) In the sale deed the vendor simply stated that he had sold the trees for Rs. 100/- to the appellant; nothing was said about the trees being cut or allowed to remain standing on the land, or about any right granted to the appellant to tend them, and the appellant was not required to remove them within certain tune. The District Board, claiming to be the owner of the trees --because they stood by the road side -- sold one of the sisam trees to the respondents and they cut it away on 10-1-1955. All the other trees purchased: by the appellant remain standing. The appellant thereupon instituted the suit giving rise to this appeal, claiming damages of Rs. 100/-. To prove his title over the tree, he produced the sale deed.

The sale deed had not been registered and the respondents objected to its being received in evidence. If the trees were immoveable property, the sale deed ought to have been registered and would not be receivable in evidence when it was not registered. If, on the other hand, they were move-able property, the sale deed need not have been registered and would be receivable in evidence. 'Immoveable Property' is defined in Section 2(6) of the Registration Act to include land, buildings, benefits to arise out of land and things attached to the earth or permanntly fastened to anything which is attached to the earth, 'but not standing timber, growing crops nor grass'. If the trees are standing timber, they would not be immoveable property, and the question before us is whether they are standing timber or not.

3. Trees are generally divisible into two classes, (i) fruit bearing trees and (2) timber trees. Sisham and nim trees are essentially timber trees; they are grown not for the sake of fruits, but for the sake of their wood which is used as timber. A fruit-bearing tree is meant to remain standing, because it is only when it is standing that it can bear fruits. A timber tree, on the other hand, is meant to be cut down; it is only after it is cut down that its trunk etc. can be used as timber. A standing tree can never be used for timber and a felled tree can never be used for producing fruits. What is meant by standing timber in Section 2(6) is 'a standing timber tree'. It is only when a tree is standing that the question would arise whether it is moveable or immoveable property; no such question would ever arise in respect of a tree that has been cut down or fallen down. The words following 'but not' in the definition of immoveable property take out of the definition what otherwise would have been within it. Only standing trees would be within the meaning of the definition, because they are things attached to the earth. Trees that have been felled or cut down are no longer things attached to the earth and, therefore, would not be within the meaning of immoveable property even without the clause 'but not standing timber, growing crops or grass'.

While a tree, in order to come within the definition of immoveable property, must be a standing tree, every standing tree is not immoveable property; the Legislature has expressly excepted from the definition standing timber trees, growing crops and grass. The reason why they have beenexcepted from the definition is that, though they are standing for the time being, they are meant not to remain standing, that they can be brought to use only after they have been cut and that they are meant to be cut sooner or later. It is on account of their nature or character that they have been taken out of the definition of immoveable property. The reason for taking these things, though attached to the earth, out of the definition of immoveable property being their nature, it is reasonable to consider the nature of a thing when a question arises whether it is standing timber, growing crop or grass. Though a timber tree must be felled or cut down before it can be used as timber, it would be wrong to say that while it is standing it is not a timber tree. A standing timber tree must be not only a timber tree but also standing; it would be illogical to say that a timber tree is not a timber tree, because it is standing.

Similarly, a timber tree does not cease to be a timber tree, because its owner has no present intention of cutting or felling it. Whether a tree is a timber tree or not does not depend upon whether there exists an intention in some body to cut it or not. It cannot be said that a timber tree comes into existence only when an intention to cut it sooner or later is formed and that there is no timber tree in existence prior to the formation of such an intention. That a timber tree must be cut down in order that it fulfils its object is no justification for saying that a timber tree is a tree in respect of which there exists an intention that it should be cut down. A tree is either a timber tree or a fruit tree; a tree that is not a fruit tree must be a timber tree and a tree cannot be a fruit tree so long as there is no intention to cut it down and cannot become a timber tree as soon as such an intention is formed. I have no doubt that whether a tree is a timber tree or not depends upon its nature and the use to which it is generally put and not upon whether there is a present intention in the mind of its owner of cutting it sooner or later. In other words, the test is an objective test and not a subjective test.

4. There are some trees which can be used both for fruits and for timber. A mango tree is such a tree. When a question arises whether such a tree is standing timber or not, one would have to go into the question whether it is meant to be used for timber or for fruits. If it is intended to be cut down and to be used as timber it would be held to be a timber tree. If, on the other hand, it is meant to be left standing for the purposes of yielding fruits, it would have to be held to be not a timber tree. The question of intention would arise only in respect of such a tree of ambiguous nature. A tree of even an ambiguous nature has to be placed in the class of timber trees or in the class of fruit trees, and, since its nature is ambiguous, the intended expected use of it is the only criterion possible. When the nature of a tree is certain there is no necessity of relying upon its intended expected use.

5. 'Timber' means 'wood fitted for building or other such use; wood capable of being used for structural proposes'. This meaning of timber takes into consideration only the fitness of the wood and not the use contemplated in the particular case. It is the nature of the wood that is decisive and not the particular use that its possessor intends to make of it. Wood of sisham and nim trees is fitted, for building or structural purposes and, therefore, they are timber trees.

6. I respectfully agree with Kanhaiya Lal and Boys, JJ. when they held in Ibadullah v. Lachmi Narain : AIR1926All350 that a nim tree is essentially or primarily a timber tree and, therefore, moveable property. Further on the learned Judges observed that 'the sale of a standing tree, the wood of which is generally used for building purposes, implies an intention sooner or later to sever the tree from the soil.' They did not mean to lay down that if the intention is not to sever it, or that if there is no intention to sever it, it is not a timber tree. Having decided that a nim tree is essentially or primarily a timber tree, they unnecessarily went into the question of intention to sever it. If they meant that a tree that is essentially a timber tree is meant to be cut down sooner or later, they did not add anything to their statement that it is essentially a timber tree, because a timber tree is one which is meant to be cut down sooner or later. They inferred the intention only from its essential nature. If an intention to cut down is to be inferred from the nature it would be wrong to consider the intention and not the nature for determining whether a tree is a timber tree or not.

7. In Nanhe Lal v. Ram Bharose : AIR1938All115 , Sulaiman, C. J. and Bennet, J. held that a mortgage of a collection of sisham and nim trees was a mortgage of moveable property, because these trees are timber trees. They held that they are timber trees, because they are not fruit trees. They held them to be timber trees even though the mortgage deed could not possibly have contained any intention of their being cut down at one time or another. The mortgage was a simple mortgage and possession over the trees was not transferred to the mortgagee and, therefore, there could be no occasion for expressing in the mortgage deed any intention about cutting the trees or letting them remain standing.

8. Ramman Lal v. Rani Gopal, AIR 1916 Oudh 211, Pirthi Din v. Ram Lal, 91 Ind Cas 512 : (AIR 1926 Oudh 136), Ashloke Singh v. Bodha. Ganderi, AIR 1926 Pat 125 and District Board, Banaras v. Churhu Rai, 1956 All WR 343 : (AIR 1958 All 680) are all distinguishable, because they deal with mango trees. Mango trees would be standing timber only if they were intended to be cut down; if they were not, or could not be, intended to be cut down, they would remain fruit trees. In the first case there was a mortgage of fruit trees. If they were fruit trees, they could not be timber trees, and there was no question of any intention in regard to their being cut down. Even if they were expected to be cut down they would not be timber trees. Fruit trees are immoveable property; they are attached to the earth and are not standing timber, growing crops or grass. All discussion in the judgment about the right of a mortgagee was, I say with great respect, not strictly relevant to the question whether the trees were standing timber or not. It would seem to be rather anomalous that whether a tree is standing timber or not depends upon whether the deed transferring it is a sale deed or a mortgage deed. A tree cannot be an immoveable property if mortgaged and moveable property, if sold.

The learned Judges stressed the existence of intention to cut sooner or later, but this intention was itself derived from the nature of the trees. As I pointed out, the intention in respect of the cutting or leaving standing that is decisive is the intention not to be inferred from the nature of the trees, but the intention found to exist in respect of the trees which may be used as fruit trees or as timber trees depending upon the intention of the owner. In Pirthi Din's case, 91 Ind Cas 512 : (AIR 1926 Oudh 136) Neaves, A. J. C. followed the case of Ramman Lal, AIR 1916 Oudh 211. In the case of Ashloke the sale of a mango tree, which was not to be cut down and used as timber, and which had continued to be standing and to yield fruits for eight years at least, was held to be a sale of immoveable property. Ross, J. in the case relied upon Marshall v. Green, (1875) 1 CPD 35 in which a contract for the sale of trees which were to be cut away as soon as possible was held to be a contract for sale of chattels and not interest in land. That case is no authority for the proposition that a sale of a tree, ordinarily to be used for timber, is not a sale of chattels, just because the sale deed does not provide for the cutting of the tree. In the last case of District Board, Benaras, 1956 All WR (HC) 343: (AIR 1956 All 680), Brij Mohan Lall, J. and my brother Beg observed at page 346 (of All WR): (at p. 683 of AIR),

'the nature of the tree is not the criterion to determine as to whether it is a standing timber or not. A fruit bearing tree e.g. a mango tree, will not come within the definition of timber if purchased by a person with the intention of maintaining it, allowing it to grow and using its fruits in future. But the same tree may become timber and, therefore, moveable property, if the intention of the purchaser is to cut and remove it and to use its wood for making planks or to put it to any other use for building purposes.'

I agree with the observation that whether a mango tree is a standing timber or not depends upon whether it is intended to be cut or left standing, but that is because, as I explained earlier, it is a fruit tree or a timber tree, depending upon the intention. The observation that the nature of the tree is not the criterion is correct only as regards a tree of ambiguous nature; actually when the nature is ambiguous there is no criterion at all and the question whether the nature of the tree is the criterion or not does not arise. To say that in no case is the nature of the tree the criterion is, I say with great respect, not correct. The learned Judges then proceeded to lay down that,

'the real test for judging..... is not the nature of the tree but the way in which it is intended to be dealt with'.

What was to be the test only in respect of trees of ambiguous nature is being laid down as the test in every case; the learned Judges seem to have fallen into the error of deducing a general rule from the facts of a particular case.

9. In Muhammad Ahmad Shah v. Muhammad 'Taqi, 30 Ind Cas 281: (AIR 1915 Oudh 195) Lindsay, J. C. held that a mortgage of a nim tree not containing any stipulation in respect of its being severed from the land was a mortgage of immoveable property. The learned Judicial Commissioner observed that

'standing trees and standing timber are not convertible terms'

but, according to Murray's Dictionary, 'standing timber' means 'standing timber trees'. With great respect to the learned Judicial Commissioner I do not agree that whether a standing tree is a standing timber or not depends upon the character of the transaction and the intention in regard to its being severed or left standing. I respectfully dissent from the view that because in a mortgage the mortgagee has no right to cut the tree, every tree, regardless of its nature, is immoveable property. Surely growing crops and grass would not be immoveable property either because they are mortgaged, or because the deed transferring them does not contain any intention that they are to be cut. Regardless of any intention about their being cut or left standing being expressed in the deed of transfer, they are to be held to be moveable property and there is no reason for taking a different view in respect of standing timber. If it is standing timber, according to its very nature, it is moveable property, regardless of any intention about its being cut or left standing.

10. There are several drawbacks in the intention theory. A deed of transfer of ownership over a tree is not required by any law to contain an expression of intention of the transferee about its future use. Whether a document requires to be registered or not must be determined solely on the basis of its contents. If the contents are disbelieved that may be a different thing, but if they are not disbelieved, then nothing else should enter into consideration for deciding whether it should be registered or not. Secondly, intention can vary from time to time, but it would be difficult to say that whether a tree is a moveable property or immoveable property can vary from time to time. Thirdly, no period has been prescribed by any authority within which a tree must be intended to be cut down in order that it comes within the meaning of a timber tree. If an intention to cut it down, at any time in future is enough, it is as good as not decisive. Even a timber tree is not ripe at all times to be cut down; if it is intended to be cut down, say after five years, it cannot be said that for five years during which it is not to be cut down it is immoveable property and that after five years it becomes moveable property.

11. As regards the actual intention, the appellant stated, in the examination-in-chief, that he would cut down the trees when he found it necessary, and, in cross-examination, that his intention is to keep the trees like jaidad and that he has been watching them. The trees are not going to serve any useful purpose so long as the remain standing; they will be found useful only when they are cut down and they will have to be cut down sooner or later. Though it is said to be a finding of fact arrived at by the lower appellate court that the intention of the appellant is to keep these trees standing and not to use them as timber, this is not a finding supported by evidence. The only evidence on the issue is the statement of the appellant andit is inconclusive. The question before us is of the admissibility of the sale deed executed by Shankar Bux Singh in the appellant's favour, and that is a question of law. Decision of a preliminary feet on which depends the question of admissibility is a question of law. If the sale deed is inadmissible in evidence, it cannot be shut out by the lower appellate court's giving a wrong finding of fact that the appellant's intention was not to cut down the trees.

12. I hold that the trees were standing timber and that the deed of sale of them to the appellant did not require to be registered. The sale deed was, therefore, admissible in evidence, even though unregistered.

13. This is a finding of fact that Shankar Bux Singh was the previous owner of the trees in dispute. The sale deed in favour of the appellant has been proved and, therefore, the appellant is the owner of the trees.

14. The finding that the appellant was entitled to Rs. 100/- as damages was not challenged before us.

15. In the result I would allow this appeal, set aside the judgment of the lower appellate court and restore the decree passed by the trial court with costs throughout:

Ramabhadran, J.

16. I agree with the Hon'ble Chief Justice both in his reasoning and in the conclusion. I have nothing further to add.

N.U. Beg, J.

17. I have read the judgment prepared by My Lord the Chief Justice, and concurred in by my learned brother, Ramabhadran, J. I agree with the operative portion of the said judgment to the effect that this appeal should be allowed, and the judgment and decree of the trial Court should be restored. I would, however, like to adopt a different line of reasoning in arriving at the said conclusion.

18. The appellant in the present case is a purchaser of 25 shisham and two nim trees under a sale deed (Ex. 4) for Rs. 100/-. He brought a suit for damages against the defendants for cutting a shisham tree out of the trees sold to him. One of the pleas taken by the defendants was that the sale deed in the present case being of immovable property of the value of Rs. 100/- was compulsorily registerable. This is the only plea that has survived at this stage. The trial Court held that the deed in question did not require registeration and decreed the suit. In appeal, the learned Judge took a contrary view, and, setting aside the judgment of the trial Court, allowed the appeal and dismissed the suit. The appellant filed a second appeal in this Court. This appeal was referred to a Full Bench and came up for hearing before us.

19. The short question that arises before us is whether the shisham and nim trees, which were comprised in the sale deed, constituted 'standing timber' so as to be exempt from the description of immovable property as given in Section 2(6) of the Indian Registration Act.

20. The division of property into real and personal property made in English law does not apply to India, The Indian Law has divided property into two broad categories, viz. immovable and movable property. 'Immovable property' has been described in Section 3(26) of the General Clauses Act, 1897, as

'including land, benefits to arise out of land, and things attached to the earth, or permantly fastened to anything attached to earth.'

Section 3(36) of the same Act provides that 'movable property' shall mean property of every description except immovable property. In Section 3 of the Transfer of Property Act (Act IV of 1882), it is laid down that

'In this Act, unless there is something repugnant in the subject or context, immovable property does not include 'standing timber, growing crops or grass' ',

and the expression

' 'attached to earth' means : (a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.'

A similar exemption is made in Section 2(6) of the Indian Registration Act, which states that

''Immovable property' includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass'.

Section 2(9) of the same Act states that

''movable property' includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.'

It may be noted that the exemption relating to standing timber, growing crops and grass from the description of immovable property, which is found in the Transfer of Property Act and the Registration Act, is not found under the General Clauses Act. Under the General Clauses Act, all trees would be immovable property, as they are attached to the earth. Trees being attached to the earth are rooted in it and, as such, derive their nourishment from it. They are, therefore, treated as part and parcel of immovable property under the General Clauses Act. On the other hand, an exemption has been carved out in favour of standing timber, growing crops and grass in the Transfer of Property Act as well as in the Registration Act obviously on the ground that although trees are grown on the earth and are, therefore, attached to it, these three types of vegetation are not intended to be permanently attached to it. The intention, therefore, appears to be the underlying basis of all the three items of exemption in the Transfer of Property Act as well as in the Registration Act.

21. The meaning of the expression 'standing timber' used in the Registration Act as well as in the Transfer of Property Act does not seem to be free from difficulty. The maxim 'quidquid plantatur solo solo cedit' has been held to be inapplicable to India, vide Vallabdas Narainji v. Development Officer Bandra, AIR 1929 PC 163. Bearing in mind, however, the provisions of the General Clauses Act, it is clear that whereas all standing trees would be immovable property under the General Clauses Act, they would not be immovable property under the Indian Registration Act or under the Transfer of Property Act. The expression 'standing timber' appears to have been used in the said Acts in contradistinction to the expression 'standing tree'. All standing timber would be standing trees, but all standing trees would not be standing timber.

22. The question, therefore, that arises at the very outset is as to what is the meaning of the expression 'standing timber', and how is it to be distinguished from standing trees. In Murray's New English Dictionary, the origin of the word 'timber' is given as 'Goth, timr (cf. 'timr-jan to build, timr-ja builder, etc.)' Its meaning is given at No. 1 as

'a building, structure, edifice, house' and at No. 2 as 'building material generally; material for the construction of houses, ships, etc., or (in extended sense) of any manufactured article.'

At No. 3 its meaning is given as

'wood used for the building of houses, ships, etc., or for the use of the carpenter, joiner, or other artisan; wood in general as a material; esp. after it has been suitably trimmed and squared into logs, or further adapted to constructive uses.'

At No. 4, its meaning in English law is given as

'trees growing upon land, and forming part of the freehold inheritance : embracing generally the oak, ash, and elm, of the age of twenty years or more; in particular districts, by local custom, including other trees, with various limitations as to age.'

23. In Webster's New International Dictionary, the meaning of timber is given at No. 1 as

'Originally, a building; a structure; later, material for construction; substance or matter out of which something can be built or formed; now only figurative'.

At No. 7, it is stated that

'In England 20 year-old (or older) oak, ash and elm are timber, and local custom sometimes includes other varieties.'

24. In Wharton's Law Lexicon, the meaning of the word 'timber' is given as

'wood felled for building or such like use; in a legal sense it generally means oak, ash and elm, but in some parts of the country is used in a wider sense, which is recognised by the law.'

25. In Aiyar's Law Lexicon of British India, it is stated as follows :

'The term' 'timber' as used in commerce refers generally only to large sticks of wood, squared for building houses or vessels; and certain trees only having been formerly used for such purposes, namely, the oak, the ash and elm, they alone were recognised as 'timber trees'; but the numerous uses to which wood has come to be applied and the general employment of all kinds of trees for some valuable purpose has wrought a change in the general acceptation of terms in connection therewith, and, as defined by Webster 'timber' is that sort of wood which is proper for building, or for tools, utensils,' furniture, carriages, fences, ships and the like.

By timber is meant trees fit to be used in building.''

26. In Halsbury's Laws of England (Second Edition) Volume I, at page 431, it is stated as follows :

'Oak, ash and elm are timber by the common law if over twenty years old, but not so old as to have no usable wood in them. Other trees may be timber by the custom of the country......... Trees less than six inches in diameter have been said not to be timber.'

27. Sub-sections (6) and (7) of Section 2 of the Indian Forest Act, 1927, provide as follows :

'' (6) 'timber' includes trees when they have fallen or have been felled, and all wood whether cut up or fashioned or hollowed out for any purpose or not; and (7) 'tree' includes palms, bamboos, stumps, brush-wood and canes.'

28. The above references would indicate that the word 'timber' applies to the wood not only when it stands in the form of a tree but also after the tree is cut and felled down. Once, however, the tree is cut, the fallen tree is not a standing tree. It becomes movable property and there can be no dispute about it. The doubt only arises if the tree continues to stand. The term 'stand', therefore, appears to have been used as opposed to the term 'fallen'. The above reference would further indicate that the term 'timber' embraces within itself two ideas. The first is that all trees, the wood of which can be used for building or for other purposes, do not become timber until they have attained a certain age. Even a tree the wood of which is primarily used for building does not become timber until it has attained a certain age and standard so as to make its wood fit for the purposes for which timber is vised. In the present case, it is argued that mm and shisham trees are primarily trees the wood of which is used for building purposes. In order, however, that even these trees should be called timber, they should have attained a certain age and standard.

A sappling of nim or shisham, just planted or only a few days old, cannot be described as timber. The use of the word 'timber', therefore, indicates that the Legislature wanted to lay down that the intention of the party concerned in transaction should not be to further nourish the growth of the tree. If the plant is so young that it would require attachment to the earth for an appreciably long period before it can be called timber, and when alone it would be fit for detachment from it, then it cannot be called timber. This aspect of the matter imports a negative intention on the part of the party concerned. In other words, the intention of the party concerned should not be a further attachment of the tree to the land. The word 'timber', therefore, itself implies that the growth of the tree has reached a stage'when it is not intended to be grown any further and is ripe for cutting as such. That is the reason why, according to the Legislature, the tree should, at the time of the transaction, have attained the stage at which ft could be called timber.

29. The second aspect of the matter is that the term 'timber'' connotes such trees only the wood of which is meant to be cut and used for certain particular purposes. But the intentions appear to be necessary. Mere intention to cut the tree immediately or reasonably early is not enough. If, for example, the intention is to cut the tree and to convert it into charcoal or to use it as fire wood or to convert it into saw dust, then also the tree is not being dealt with as timber. Thus, while the first aspect indicates a negative intention on the part of the transferee, namely, an intention not to keep the tree attached to the earth, the second aspect indicates a positive intention, namely, to use the wood of the tree for certain Specified purposes for which timber is used, after its detachment from the earth. Thus, for example, if a nim or shisham tree, which has attained such an age and standard as to be called a timber tree, is sold in order that its wood might be burnt or it might be converted into charcoal or saw dust, it is not being dealt with as timber.

30. I have emphasised both the negative as well as the positive aspect of the intention implicit within the meaning of the term 'timber' to bring out the fact that, bearing them in mind, it is difficult to say that the primary nature of the tree itself can be made the determining factor in the case of any particular class of trees. The determining factor, in my opinion, in such cases is the intention of the parties as determined by the circumstances of each case and the nature of the transaction. If all these factors go to indicate that the parties intended to deal with the tree as timber, then alone it would be called standing timber. Where the recitals in the document itself throw light on the matter, it would be a question of the construction of the document. Where, however, the terms are not clear or the document itself is silent on it, the Court should look at the circumstances of the case and the nature of the transaction for the purpose of determining as to what was within the contemplation of the parties. The primary nature of the tree is no doubt an important consideration that may help the Court in determining the question. The utmost that can be said is that where the document itself is silent, the primary nature of the tree may lead to certain presumptions until the contrary is proved.

31. The terms of the document, the custom of the locality, the nature of the transaction entered into by the parties, the age of the trees, the purpose of the transactions, the primary nature of the trees and the use to which they are intended to be put are all factors that can help the Court in determining the question as to whether the parties intended to deal with the property as 'standing timber' or not.

32. It can be argued that it would be unjustifiable to import the question of intention and purpose when the legislature itself has not laid down any such condition as determining the question whether the property is 'standing timber' or not. This objection seems to ignore the fact that the question of intention and purpose is embraced within the meaning of the term 'timber'' itself. A tree is not timber until it has attained a stage when it is not meant or intended to be grown any further. In fact, after a certain age it might deteriorate and get diseased, and cease to be timber or become useless as such. This, as already observed, is the negative intention underlying the meaning of the term 'timber'. Further, the word timber connotes trees the wood of which is meant or intended to be used for certain particular purposes, This is, as already observed, the positive intention underlying the term 'timber'.

33. Secondly, it is argued that the trees are capable of being divided into two classes. In the first place, there are trees the wood of which is capable of being primarily used for building purposes, such as nim or shisham trees. In such cases the primary use to which the trees can be put should be the sole and the only criterion. This may be described as the unambiguous class. In the second category are fruit trees, like mango trees, ete, which may be described as trees of the ambiguous class. In the case of trees belonging to the ambiguous class, intention may be material, but not in the case of trees belonging to the unambiguous class. In reply to this argument it can be said that even in case of trees which are described as belonging to the unambiguous class, difficulties might arise in certain cases. It is no doubt true that generally the wood of such trees, as nim and shisham, is used for building purposes. It is, however, possible to imagine exceptional cases in which even the wood of such trees might not be treated as timber.

Thus, for example the fruit of a nim tree is eaten by some persons for medicinal purposes. Its oil is also extracted for medicinal purposes. The leaves of nim trees are also used in medicinal concoctions. The twigs are used sometimes as brushes for teeth. The ingredients of nim are also used in the manufacture of certain soaps and tooth pastes. Similarly, the leaves of shisham trees have also a highly efficacious medicinal value and are prescribed by hakims for various ailments. They may be grown and preserved for providing ingredients of medicine manufactured by persons who do this business or who are in the medical profession. If they are transferred as such and the transferee takes them for the said purposes, it will, be difficult to hold that they are sold as timber. Again shisham or nim trees might be planted to provide shade. Shisham or nim tree or any other kind of trees which belongs to the unambiguous class may also be grown in horticultural gardens as providing samples of the various types of wood and for propagating and promoting their growth. In such cases the aim is the preservation of the trees for a certain purpose, and not the use of the wood of the trees for an ulterior purpose, as in the case of timber. If such trees are transferred as items in a horticultural garden to another party who intends to preserve them as such, it will be difficult to say that such trees are dealt with as timber trees.

I, therefore, find some difficulty in holding that once a tree belongs to the class of a tree the wood of which is primarily used for building purposes, it must be held to be timber, and the question of intention and the manner in which the tree is dealt with is absolutely immaterial.

34. Moreover, even if it is intended to grow shisham or nim trees for the purpose of using their wood for building or like purposes, they cannot be called standing timber, until they have enabled them to possess those qualities which are associated with standing timber. At the date of the transaction, a tree should be standing as timber. If at the time of the transaction it is merely in the process of being grown so as to be standing timber in distant future, it cannot be said to be standing timber at the date of the transaction. Further, customs of different localities might vary. In certain parts of Bombay Presidency the wood of a mango tree is generally used for building purposes. Moreover, there may be different kinds of mango trees. The produce of some mango trees might be good for eating fruits and might be generally used for that purpose. On the other hand, the other mango trees might be valuable for their wood, and such trees might be used primarily as timber trees in some localities.

It is, therefore, difficult to lay down any such consistent line of demarcation between the two classes of trees, one being of an unambiguous class and the other being of an ambiguous class. There is an element of ambiguity attached to all trees. All that can be said is that in case of trees which are said to belong to an unambiguous class such as shisham or nim trees, the ambiguity is less; and in the case of trees which are said to belong to the ambiguous class the ambiguity is greater. Ambiguity is, however, present in both the classes of trees. The amount of ambiguity may vary not only from place to place but also from time to time. The wood of some trees which might have been considered to be useless as timber at one time might come into fashion and be regarded as a very useful article of timber at another time. It would, therefore, appear that the twofold classification of trees into trees of unambiguous and ambiguous class itself appears to be highly ambiguous.

35. The third criticism against the above, view is that the test of intention introduces changeability in the determination of the question. It may, however, be mentioned that changeability has to be imported in the primary nature test as well. So far as the trees of the ambiguous class are concerned, it is conceded that the test in such cases would be the intention of the parties. This would be a changeable test. Even in the case of trees of unambiguous class, the element of changeability would be present as shown above. It appears to be difficult to lay down any uniform test for any class of trees. All that can be said is that the question would depend on the intention of the parties as disclosed by the nature of the transaction and the circumstances of each particular case.

36. Further, it can also be said that the classification into two categories, viz. trees fit for building purposes and fruit-bearing trees is itself not exhaustive. There may be trees which are primarily grown for other purposes. Thus, for example, eucalyptus trees may be grown as providing a healthful atmosphere. Other trees are grown for medicinal purposes. There are still other trees, for example, cypress or other trees which may be grown for the purposes of providing artistic beauty or decoration. Other trees may be grown for the purpose of providing fire-wood, such as dhak trees. Thus classifications of trees even according to their primary nature are manifold and multifarious. Sometimes the trees are grown for more than one purpose. Further, as already observed, the meaning of 'timber' has now been extended to cover trees the wood of which is used not only for building purposes but also for manufacturing industrial and other commercial purposes. Thus, for example, the wood used for the manufacture of boxes, furniture, toys, sport goods etc. may also be termed as timber. It is, therefore, difficult to sustain the above two-fold classification of trees.

37. It is next argued that in the case of growing crops and grass the question of intention: is immaterial. Hence the same consideration should apply to the case of standing timber. I have already referred to the meaning of the word 'timber' in various dictionaries as well as in law. The term, 'timber' seems to have acquired a special significance. It is applied to a tree only when it is grown with a certain intention and only after the tree has reached a certain age and standard, and continues to apply to it only up to the time when it retains the required qualifications. Further evert if the tree possesses the said qualifications, it can be timber only if it is intended to utilise its wood for certain special purposes. No such considerations apply to the meaning of the terms 'growing crops and grass'. All that can be said is that in the case of these two items the Legislature presumed that they are by their nature temporary. Their connection with the land is necessarily of an extremely fleeting and transient nature.

The Legislature, therefore, treated it as practically negligible, and ignored it altogether, putting them in law on the same level as movable property detached from land. On the other hand, standing timber comprises trees whose attachment to the earth is generally of a permanent nature until they are intended to be dealt with as timber to be withdrawn from the soil. The considerations in the case of timber are, therefore, of a different and mote complicated and specialised type. None of the last two phrases have obtained any special significance either in the commercial or in the industrial world. The underlying intention in these two cases is, therefore, invariably presumed to be their severance from the land.

38. Further, it is argued that the question whether a document requires to be registered or not must be determined solely on the basis of the contents of the document and nothing further should enter into consideration for deciding whether it should be registered or not. It is no doubt true that if the contents of the deed are sufficient and clear to indicate the true nature of the transaction and are believed, the contents should be decisive. If, however, the contents are not clear or are not enough or are not found to be worthy of credence or are not found to be true or the deed itself is silent, then there appears to be no bar in law to the Court entering into an enquiry as to the real nature of the transaction for determining the question as to whether the document in question is compulsorily registrable or not.

39. At this stage, it will be helpful to consider the law on the point. The word 'timber'is an English word and, as shown above, has a special meaning attached to it. Before, therefore, referring to the Indian cases, it would be interesting to refer to two English cases for the purpose of ascertaining as to what test the Courts in England have applied in analogous cases. In the case of Smith v. Surman, (1829) 9 B and C 561 it was contended that a sale of trees existing in a growing state on the land may or may not be an interest in the land according to the nature of the transaction between the parties. The test would be whether the parties really looked to their deriving a benefit from the land or merely intended that the land should be in the nature of warehouse for the trees during the period. The above argument was accepted in this case. In view of the fact that, according to the agreement, the trees standing on the land were to be removed from it, they were treated as timber on the ground that the stipulation to remove the trees indicated that the party concerned did not intend to derive any benefit from the soil.

40. The next case is that of (1875) 1 CPD 35. In this case the question was whether a sale of growing timber to be taken away as soon as possible by the purchaser was a sale of an interest in land or of a chattel. In this case there is a classic exposition of the law on the point by Lord Coleridge, C. J. in the following passage of his judgment :

'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.'

Grove, J., while agreeing with the said judgment, added as follows :

'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.'

Grove, J., then referred to the case of (1829) 9 B and C 561 cited above, and approved of the law laid down in that case. Bearing in mind the facts of the particular case he observed as follows:

'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. If the contract had been for the sale of a young plantation of some rapidly growing timber, which was not to be cut down until it had become substantially changed and had derived benefit from the land, there might have been an interest in land, but this is not such a case.'

41. Coming now to the Indian law, reference may be made to the Commentary on the Indian Transfer of Property Act by H. H. Shephard and K. Brown (7th Edition). At page 14 of the......... ............... said book under the heading 'timber' it is stated as follows :

'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 intended 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. By timber is generally meant such trees only as are fit to be used in building and repairing houses. Thus, ia England, oak, ash and elm trees are considered timber, provided at least they have attained a certain age and size. And, accordingly, mango trees may, if according to the usage of the country used for building purposes, be ranked as timber. Trees fit for firewood only clearly could not be ranked as timber.'

In this connection, it would also be interesting to cite the following passage from Rustomji's Law of Registration (1928 Edition) at pages 13 and 14:

'Owing, perhaps, to the varying definitions of 'immovable property' and to the wording in Section 2, Registration Act, 1908, there is considerable want of uniformity in the practice followed in different parts of the country when registering deed? of transfer or hypothecation of standing trees. The matter has been considered by the Government of India, and the principles to be followed are thus stated in the Government oi India, Home Department letter No. 49-1814, dated 31st October, 1884: 'It would seem to be difficult to frame a definition of 'moveable' and 'immovable' property suitable for practical use on a mere consideration of the physical nature of the property. It would appear to be necessary to take into account also the way in which the property is regarded and dealt with at the time of the transaction; and this is apparently what the framers of the Registration Act, 1877, meant to do by using the words 'standing timber' in contradistinction to 'trees'.

Certain trees, being almost invariably used as timber, are commonly spoken of as 'timber trees.' But probably most trees would admit of being used both as timber and for other purposes. Thus, properly speaking almost every tree, being potentially timber, and no tree actually timber, the question whether a tree is for the purposes of any transaction to be deemed to be 'timber' must depend upon the way it is regarded and treated in that transaction. If, for example, trees are sold with a view to their being cut down and removed, the sale is one of 'standing timber' within the meaning of the Registration Act. If, on the other hand, trees are sold, as it is understood they are in the class of cases referred to by the Government of Madras, with a view to the purchaser keeping them permanently standing and enjoying them by taking their fruit or otherwise, the sale would not, it is believed, on any construction of the Act, be regarded as one of 'standing timber', but would be a sale of immovable property.

For these reasons the difference between the definition of 'immovable' property for the purposes of the Registration Act and the Civil Procedure Code would probably be found to be smaller than has, by some authorities, been supposed.' Registering Officers should apply the principle contained in the above ruling of the Government of India to sales of standing trees when deeds are presented for registration, and should determine in each case whether trees should be treated as immovable property and, the deeds entered in Book No. 1, or as movable property and the deed registered in Book No. 4. In view of the definition in the Registration Act it will, perhaps, be well to treat trees of the classes ordinarily utilized for 'timber' as movable property, unless the terms of the deed clearly contemplate the purchaser keeping them standing and enjoying their products. Conversely, trees not ordinarily utilized as timber would be treated as immovable property and registered in Book No. 1, unless the terms of the document made it clear that they were to be cut down.'

42. An attempt shall now be made to refer to the important Indian decisions which have a bearing on the point in a chronological order. The earliest Indian case to which reference might be made is reported in Sukry Kurdeppa v. Goondakull Negireddi, 6 Mad HCR 71. In this case a question arose as to whether a document purporting to be a lease of date and palm trees entitling the lessee to draw toddy from palm trees for a period of five years is a transfer of interest in immovable property and requires registration. Holloway, Acting Chief Justice, expounded the law on the point in the following words:

'Movability may be denned to be a capacity in a thing of suffering alteration of the relation of place. Immovability incapacity for such alteration. If, however, a thing cannot change its place without injury to the quality by virtue of which it is, what it is, it is immovable.

Certain things, such as a piece of land, are in all circumstances immovable. Others, such as trees attached to the ground, are, so long as they are so attached, immovable; when the severance has been effected they become movable. A document, therefore, evidencing an interest in land, must always require registration. One with respect to trees may or may not require it, according to the character of the transaction. If the parties contemplate the interest passing after the conversion of the immovable to a movable, it will not; if the interest passed contemplates the continuance of the quality of immovability, it will. The present document passes not only a right of user for five years in trees rooted in the soil, but a right of user which demands for its exercise that they shall continue as growing trees, I can entertain, no doubt that it both creates and transfers an interest in immovables. If it had passed a five years' right of taking all palms of a certain age for planks, I should have thought otherwise, because it would then be manifest that the thing to pass was a movable. According as a transaction contemplates them as in a state of attachment to, or of detachment from, the soil, the interest passed will be movable or immovable.'

Kindersley, J., agreed with the same view.

43. In the case of Ram Ghulam v. Mohan Das, 1887 All WN 59 the question arose as to whether the trees were to be treated as immovable property under Schedule II, No. 132 of the Indian Limitation Act (Act V of 1877). It was held by Edge, C. J., that under Section 2(5) of the General Clauses Act (Act I of 1868) standing trees would be included in the description of immovable property as including things attached to the earth.'

44. In Krishnarao v. Babaji, ILR 24 Bom 31 it was held that by the word '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. In that case it was held that the mango tree, though a fruit-bearing tree, is to be classed as a timber tree because of the local custom prevailing in that part of the country (Ratnagiri), where its wood was often used for building houses. It may be mentioned that there is hardly any discussion of law in this case. The learned Judges only confirmed the finding of fact arrived at by the lower Court based on the special custom prevailing in the local area.

45. In Seeni Chettiar v. Santhanathan Chettiar, ILR 20 Mad 58, which is a Full Bench case of the Madras High Court, Collins, C. J., referring to a document, which was styled as yadast and which conveyed, the interest in question, observed as follows:

'It appears to me that there can be no doubt but that the yadast does convey an interest in immovable property: the contrary proposition is not arguable. 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. I, therefore, hold that the yadast does convey an interest in immovable property and is not receivable in evidence being unregistered.''

In the judgment of Subramania Ayyar, J. it would be relevant to refer to the following passage:

'As to the second contention, 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 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 movables, but would operate as a transfer of, an interest in immovable property.'

46. In the case Mathura Das v. Jadubir Thapa, 3 All LJ 138 a lease of trees standing in a certain area was given, and it was stipulated that the cutting of the trees would begin from that very day

and would terminate within two years. On the above facts Aikman, J. held as follows:

'These trees were sold, not that the produce thereof might be enjoyed but simply with a view to their being cut down and removed......In my opinion the document in question was nothing but the sale of standing timber giving the petitioners somewhat extended period for its removal. I therefore hold that it was not inadmissible for the want of registration.'

47. In Mangal Sen v. Mt. Maoli, 9 Ind Cas 478 (All) following the ruling of 1887 All WN 59 it was held by Karamat Husain, J. that a mango grove, apart from the land on which it stands, is not immovable property for the purposes of registration. For the purposes of limitation, however, such grove comes within the meaning of immovable property as used in Article 132 of the Limitation Act. I would respectfully dissent from the view takes to this case.

48. The case of Ali Bakhsh v. Ghurai, 28 Ind Cas 180: (AIR 1915 Oudh 75) related to a gift of a grove. In that case Lindsay, J. C., held that the question whether a grove transaction amounts to merely a transfer of standing timber or to a larger transfer of an interest in immovable property is one to be determined upon the circumstances of each case. Where the transfer is made not with the intention that the trees are to be severed and used as timber, but with the intention that the plots are to be maintained as grove as they are, the transfer is one of immovable property and the deed of transfer requires, registration.

49. The case of 30 Ind Cas 281: (AIR 1915 Oudh 195), related to a mortgage of nim trees without any intention of being severed from the land and used as timber. In this case Lindsay, J.C., after referring to the case of 28 Ind Cas 180 : (AIR 1915 Oudh 75), (supra) decided by him earlier observed as follows:

'I expressed the opinion to which I still adhere that the standing trees and standing timber are not convertible terms and I referred to a judgment of the Madras High Court reported as 6 Mad HCR 71 at p. 73. According to that judgment where there is a transaction regarding trees in connection with which an instrument of transfer has been executed, the character of the transaction has to be looked at in order to determine whether or not the trees referred to are standing timber and, therefore, movable property, or, whether they are to be deemed to be immovable property. If for example there is no intention that the trees should be severed and used as timber, the transaction would be treated as one relating to immovable property. Applying this principle to the present case, it seems to me quite clear that it was not the intention of the parties to this mortage-deed to treat the nim tree situated in Lucknow as movable property. It was never contemplated that as a result of the mortgage transaction the tree should be severed from the land, and used as timber. I have no doubt, therefore, the proper view is that for the proposes of this transaction the tree in question was immovable property, and not movable property, within the meaning of the definition of those terms contained in the Registration Act.'

From the above observations it would follow that the question whether trees are standing timber or not would depend not on the general consideration as to what is the primary nature of the trees, but on the manner in which the parties have chosen to deal with them in the special circumstances of each particular case. They would be standing timber only if the parties have chosen to deal with them as such, and not otherwise. The principle laid down in this case is supported by a volume of case law, both English as well as Indian.

50. In AIR 1916 Oudh 211 there was a mortgage of a grove consisting mostly of fruit trees. In this case Stuart and Muhammad Ali, A.J.Cs. defined the term 'standing timber' as meaning trees the wood of which can be used for building or repairing houses or for other industrial purposes, and as implying an intention, sooner or later, to sever the trees from the soil. As the trees mortgaged consisted mostly of fruit bearing trees it was held by the learned Judges that the parties did not contemplate the prospect of severance of the trees and use of their wood for industrial purposes, and that the trees of the grove in question could not therefore be considered to be 'standing timber' and the mortgage of grove-holder's rights in the case constituted a transfer of immovable property within the meaning of the Registration Act. In this case the view taken in 28 Ind Cas 180: (AIR 1915 Oudh 75) (supra) and 30 Ind Cas 281: (AIR 1915 Oudh 195) (supra) was followed and that taken in 9 Ind Cas 478 (i) (All) (supra) was dissented from. In this case it was further observed that 'when a party purchases timber he must be impliedly considered to purchase wood for industrial uses'.

51. In Rameshwar Singh Bahadur v. Basudeva Singh, AIR 1923 Pat 95 it was held that bamboos are timber inasmuch as they are used by the custom of the country in buildings and repairing of the houses. The view taken in this case appears to be based on the primary nature test, and not on the intention test. It may, however, be noted again that there is no reference to any case law on the subject.

52. The case of : AIR1926All350 related tothe sale of a nim tree. In this case following thecase of ILR 24 Bom 31, it was held by KanhaiyaLal and Boys, JJ. that timber must be deemedto imply only such trees as are fit to be used inbuilding and repairing houses. A nim tree, the woodwhereof is fit to be used for such purposes, mustbe regarded as primarily a timber tree, and movableproperty for the purpose of registration. This casehas been strongly relied on as supporting the theoryof primary nature test. The subsequent portionof the judgment would, however, indicate that thelearned Judges did take into consideration otherfactors also as elucidating the intention of the parties. This shows that they did not intend to ruleout the application of the intention test. Thiswould be evident from the fact that they referredto the case of AIR 1916 Oudh 211 (supra) withapproval in the passage which immediately followedthe above sentence. The relevant passage is asfollows:

'In AIR 1916 Oudh 211 it was held that, while trees of a grove cannot be regarded as standing timber, because the sale of such a grove would not necessarily involve the idea of severance, the sale of a standing tree, the wood of which is generally used for building purposes, implies an intention sooner or later to sever the tree from the soil. No portion of the land where the tree in question is said to have stood was included in the sale. If any tree was really intended to be sold the idea in the minds of the parties must have been that the vendee would sever it from the land at his convenience. The nim tree in question cannot, therefore, be regarded as an immovable property within the meaning of the above definition.'

53. The case of AIR 1926 Pat 125 contains a very thorough and instructive discussion of both the English as well as Indian case law on this question. After referring to the various leading cases on the point and to the circumstances of the particular case, Ross, J. observed as follows:

'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 land.'

Although the case related to a mango tree, which has been styled in this case as a tree belonging to the ambiguous class, the principle laid down in the case was a general one irrespective of any such distinction.

54. In the case of AIR 1926 Oudh 136 the question arose in connection with a gift deed which included a mango tree. Referring to ILR 24 Bom 31 which was a case relating to mango trees in Ratnagiri district of the Bombay Presidency, Neave, J. observed that that case related to a province where mango tree was one of the commonest kinds of timber and was generally used for building and for other purposes. He, however, preferred to follow the view expressed by Stuart and Muhammad Ali, A.J.Cs. in the case of 91 Ind Cas 512: (AIR 1926 Oudh 136) (supra) to the effect that in order to determine whether mango trees are or are not immovable property the intention of the purchaser must be taken into consideration. If the intention is, sooner or later, to sever trees from the soil and to use their wood for industrial purposes, then they must be regarded as coming within the exception to the definition but not otherwise. He accordingly held that the mango tree was not dealt with by the parties as timber but as immovable property for the purposes of the Registration Act.

55. In Vellachami Servai v. Samusuvava Rowther : AIR1928Mad392 , Devadoss, J. did not agree with the view expressed in ILR 24 Bom 31 to the effect that the meaning of the term 'timber' should be confined only to 'such trees only is are fit to be used in building and repairing; houses.' He further observed that in Southern India mango planks are used not only for making doors and windows but also for making boxes, tables, benches, etc.

56. In Rajindra Bahadur Singh v. Malhoo Khan, AIR 1929 Oudh 93 Gokaran Nath Misra and Srivastava, JJ. interpreted three documents granting permission to cut and remove certain trees. While doing so they observed as follows:

'It is perfectly clear in the present case that the trees were sold merely with the object of their being cut and removed. There was no intention that the purchaser should have any right of enjoyment of the produce either of the tree or of the land......The question has to be determined upon the circumstances of each case. We ase satisfied that in the present case the parties to the transactions did not contemplate that the trees should continue to stand and be enjoyed as such but that the object of the sale was to convert them into movable by getting them cut and removed. Accordingly we hold that the documents in question do not create any interest in immovable property and are, therefore, admissible in evidence even though unregistered.'

57. The next case is a Full Bench case ff the Allahabad High Court reported In the matter of Raj Balamgir : AIR1931All392 . This case related to a deed by virtue of which standing timber was sold and it was further stipulated that the wood would be cut and removed within a year. The Full Bench consisted of Sulaiman, Acting, C.J. and Mukerji and Boys, JJ. Sulaiman, Acting, C.J., in his judgment observed as follows :

'The object of the transaction was obviously to enable the purchaser of the timber to cutdown the trees and remove them from the jungle and not to maintain them as forest or to enjoy thebenefit of the standing trees. Had the idea beenthat the purchaser would have a right to maintainthe trees on the land for a sufficiently long periodin order to derive benefit from the growth of thosetrees the case might have been different. But hemthe primary object was the cutting down of thetimber and its removal from the forest.'

The learned Judge then went on to state in thiscase as follows:

'there was no idea of conferring a right on the purchaser to retain possession of timber which would remain attached or fastened to the earth. It is therefore quite clear that the standing timber, which had to be cut down and removed, as movable property and not immovable property.'

58. In Shiv Dayal v. Putto Lal : AIR1933All50 , Sen, J. made the following significant observations:

'Whether or not a mortgage of fruit-bearing trees is a mortgage of immovable property is a question dependent in each case upon the intention of the contracting parties and cannot be settled by an inflexible rule. Where there is a mortgage with possession of fruit-bearing trees with the intention that the mortgage is to remain in possession during the years of the mortgage and enjoy the fruits and should not cut down the trees so as to convert them to either timber or firewood, it mast be held that the trees so mortgaged were either immovable property or at least an interest in immovable property. According to the terms of the mortgage bond in suit, the mortgagee is authorised to remain in continued possession during the whole term of the mortgage. He is authorised to appropriate the fruits. He is also authorised to appropriate the branches when dry. This clearly indicates that the parties never intended that the mortgage in the exercise of his rights should cut down the trees and convert them into timber. The enjoyment of the fruits during the subsistence of the mortgage could be secured by the continued existence of the trees and would be rendered impossible by the severance of the trees from their native soil. For the continuance of such enjoyment, these trees must exist firmly embedded in the earth and inseparable from the soil from which they are to derive continuous nourishment.'

59. The case of : AIR1938All115 related to a mortgage of a grove consisting of shisham and nim trees. In this case Sulaiman, C. J. held that the trees in question were timber trees and were not ordinary fruit trees. Accordingly, the claim so far as the trees were concerned was not governed by the twelve years rule but by the six years rule of limitation. The suit brought in 1932 was, therefore, held to be barred by time. This case is relied on very strongly as a Bench case of the Allahabad High Court supporting the contrary view. It may, however, be observed that in this case there is no discussion of any law. There is no reference to the principle laid down by the same learned Judge in the previous case of : AIR1931All392 which was a Full Bench case. In fact, there is no reference to any case at all. The document appears to have been a registered one, and, therefore, the question arose not in connection with the Registration Act at all but in connection with the Limitation Act. There is no reference to the General Clauses Act nor to the difference between the said Act and the Registration Act or the Transfer of Property Act in this regard.

As already observed, the question whether trees are to be deemed as immovable property or not would depend on the way they have been dealt with by the parties in the particular transaction. If they are dealt with merely as standing trees, they would be immovable property under Section 3(26) of the General Clauses Act. On the other hand, if they are dealt with as 'standing timber' they would be exempt from the definition of 'immovable property' as contained in Section 3 of the Transfer of Property Act and Section 2(6) of the Registration Act. This aspect of the matter was not considered in the judgment. For the above reasons, in case this ruling is interpreted as laying down a general principle governing the interpretation of Section 3 of the Indian Registration Act, I would respectfully dissent from it.

60. In Ram Kumar v. Krishna Gopal AIR 1946 Oudh 106 Kaul, J. observed that in view of the large variety of uses to which the word 'wood' is put at present in this country the original meaning of the word 'timber' in English law, which was a narrow one, has been widened, and babul trees would fall within that category.

61. In : AIR1956All680 after referring to the various cases on this point a Bench of this Court of which I was also a member held as follows:

'But in our opinion the nature of the tree is not the criterion to determine as to whether it is a standing timber or not, A fruit bearing tree e.g. a mango tree, will not come within the definition of timber if purchased by a person with the intention of maintaining it, allowing it to grow and using its fruits in future. But the same tree may become timber and, therefore, movable property, if the intention of the purchaser is to cut and remove it and to use its wood for making planks or to put it to any other use for building purposes.

Therefore the real test for judging whether a tree is movable or immovable property is not the nature of the tree but the way in which it is intended to be dealt with. If the intention of the parties in respect of a particular transaction is that the tree, whether it be a nim tree or a mango tree, is to be cut by the purchaser and removed it will become timber. But if the intention is that it should, after the purchase, continue to grow and to yield fruit or shade, it may not be timber,

That this is the real criterion for judging whether a certain tree is, on a particular occasion, a timber or not is borne out by the case of AIR 1926 Pat 125'.

In the present case I have reconsidered the matter, and, after a fuller consideration of the various aspects of the question and after having given my anxious consideration to it, I find it difficult to take a different view.

62. In Ananda Behera v. State of Orissa : [1955]2SCR919 their Lordships of the Supreme Court held that the sale of a right to catch and carry away fish in specific portions of a lake amounted to a licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre, which is regarded in India as a benefit that arises out of the land, and, as such, is immovable property within the definition of term in Section 3(26) of the General Clauses Act, 1897. In this case Bose, J. who wrote the judgment also referred to the previous case of Firm Chhotabhai Jethabhai Patel and Co. v. State of Madhya Pradesh : AIR1953SC108 in which it was held that a right to pluck, collect and carry away tendu leaves was not an interest in land. Bose, J. distinguished the above case on the ground that the leaves that can be plucked are those that are growing on trees, and it is evident that there must be a fresh crop of leaves at periodic intervals.

63. The latest and the most important case of the Supreme Court is that of Shantabai v. State of Bombay : [1959]1SCR265 . In this case Bose, J. after posing the question as to 'what is the difference between standing timber and a tree' expounded the meaning of the expression 'standing timber' as follows:

'Timber is well enough known to be -- wood suitable for building houses, bridges, ships etc., whether on the tree or cut and seasoned'. (Webster's Collegiate Dictionary)

'Therefore, 'standing timber' must be a tree that is in a state fit for these purposes and, further a tree that is 'meant to be converted into timber' soshortly that it can already be looked upon as timber for all practical purposes even though it is still standing. If not it is still a tree because, unlike timber, it will continue tq draw sustenance from the soil.'

I have underlined (here into ' ' ) the words 'meant to be converted into timber' ' as these words indicate the application of intention test as the criterion for determining the question whether a tree is 'standing timber' or not.

64. Referring then to Mulla's Commentary on Transfer of Property Act, 4th Edition, the learned Judge observed as follows:

'The learned author also refers to the English law and says at page 21: ' 'In English law an unconditional sale of growing trees to be cut by the purchaser, has been held to be a sale of an interest in land; but not so if it is stipulated that they are to be removed as soon as possible.'

In my opinion, the distinction is sound. Before a tree can be regarded as 'standing timber' it must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut reasonably early. The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market. But however that may be, the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the grantee,'

65. Referring to the terms of the particular grant the learned Judge observed as follows:

'As regards trees that could be cut at once, there is no obligation to do so. They can be left standing till such time as the petitioner chooses to fell them. That means that they are not to be converted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil; in other words, they are to be regarded as trees and not as timber that is standing and is about to be cut and used for the purposes for which timber is meant. It follows that the grant is not only of standing timber but also of trees that are not in a fit state to be felled at once but which are to be felled gradually as they attain the required girth in the course of the twelve years; and further of trees that the petitioner is not required to fell and convert into timber at once even though they are of the required age and growth. Such trees cannot be regarded as timber that happens to be standing because timber, as such, does not draw nourishment from the soil. If, therefore, they can be left for an appreciable length of time, they must be regarded as trees and not as timber. The difference lies there.

The result is that, though such trees as can be regarded as standing timber at the date of the document, both because of their size and girth and also because of the 'intention' to fell at an early date, would be movable property for the purposes of the Transfer of Property and Registration Acts, the remaining trees that are also covered by the grant will be immovable property, and as the total value is Rs. 26,000, the deed requires registration.' In the above passage also I have underlined (here into ' ') the word 'intention' with a view to indicate that the same test has again been emphasised as the determining factor. Although the other learned Judges based their decision on a different ground, but the view of law as expounded by Bose, J. was not dissented from by them.

66. The net result of the above discussion of law is that the cases that can be cited in support of the contrary view are those of ILR 24 Bom 31, AIR 1923 Pat 95, : AIR1926All350 and : AIR1938All115 . In none of these cases is the intention theory expressly overruled. In fact, in cases in which the primary nature test has been applied there has either been no discussion of any law or the intention theory, or, there being nothing to the contrary, the intention has been impliedly inferred or presumed from the primary nature of the tree. On the other hand, the intention test finds support from a volume of case law both English as well as Indian. The intention test would also find support from the weighty observations of Bose, J. in : [1959]1SCR265 , (supra) which is the last case decided by their Lordships of the Supreme Court of India. For the above reasons, I would uphold the view in favour of the intention test.

67. So far as the facts of the present case are concerned the plaintiff stated in examination-in-chief that he had purchased the trees in dispute from the taluqdar for cutting and removing them. The trial Court's finding on the above point was as follows:

'The nature of trees, they being shisham and nim also points to the same inference.'

In his cross-examination the plaintiff admitted that 'he had purchased the trees to preserve them as property and that he was still looking after them.' In regard to this admission the trial Court observed as follows:

'The plaintiff cannot on that admission be held to mean that his intention was not to cut and remove the trees. He would have sold them when he got a good bargain.'

So far as the lower Court is concerned in regard to the plaintiff's evidence it observed as follows:

'It is true that the plaintiff deposed that he purchased the trees for cutting the same and P.W. 3 Gokaran Prasad also deposed to this effect. The fact, however, remains that it was not mentioned in the sale deed that the trees were being sold for being cut by the plaintiff.'

The lower appellate Court further referred to the case of : AIR1956All680 and observed as follows:

'In view of this decision, the nature of the tree is not the correct criterion to determine whether it is standing timber or not.'

On behalf of the appellant, it was argued that the lower appellate Court did not disbelieve the plaintiff's evidence. The observations of the lower appellate Court made in reference to the case of : AIR1956All680 (supra), however, indicate that in its opinion the said case purported to lay down that the primary nature of the tree should not be taken into consideration as a factor in determining the question. In this regard, therefore, the judgment of the lower appellate Court suffered from an error of law. There seems to be substance in this contention. It appears to me that the primary nature of a tree is a factor that should be taken into consideration along with other factors. The Bench decision, while laying down the intention test, did not intend to lay down that the primary nature of a tree should be excluded from consideration. In fact it is a feature of prime importance, and the trial Court rightly took it into consideration as a factor supporting the required intention and as indicating that the trees in question were meant to be dealt with by the parties as 'standing timber' and not as mere trees.

68. As to the so-called admission made by the plaintiff in his cross-examination, it was argued that it did not mean that the plaintiff had given up his intention of cutting the trees. It only meant that he was waiting for an opportune moment to do it at his convenience. This part of the plaintiff's evidence was, therefore, misconstrued by the lower appellate Court.

69. As to the absence from the document of a recital regarding the intention to cut, it was argued that the document itself being silent on the point. Section 92 of the Indian Evidence Act did not operate as a legal bar to the production of oral evidence on the point. The judgment of the lower appellate Court, therefore, suffered from the defects both of misconstruction of law as well as of evidence. The judgment of the trial Court did not suffer from any such errors and should, therefore, be restored. I am inclined to agree with the above contentions and would, therefore, uphold the judgment of the trial Court.

70. I would, accordingly, agree with the operative portion of the majority judgment, allow this appeal, set aside the judgment of the lower appellate Court and restore the decree passed by the trial Court, with costs throughout.

71. THE COURT: We allow this appeal, setaside the decree of the lower appellate court andrestore the decree passed by the trial court withcosts throughout.


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