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Mangal Sen Vs. Musammat Naoli - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.478
AppellantMangal Sen
RespondentMusammat Naoli
Excerpt:
limitation act (ix of 1908), schedule i, article 132 - registration act (iii of 1877), section 3--standing trees--movable or immovable property--mortgage--transfer of property act (iv of 1882), section 3(a) and 59. - .....which reversed the decree of the court of first instance and dismissed the claim.4. the plaintiff has preferred a second appeal to this court and it is urged on his behalf that the bond did not require registration and the suit was not barred by limitation.5. the expression immoveable property' according to section 3 of the transfer of property act; does not include standing timber and, therefore, the provisions of section 59 of that act have no application to the hypothecation of trees. standing timber has been excluded from section 3 of the registration act also and, therefore, it is evident that a grove, apart from the land on which it stands, is not immoveable property for the purposes of registration. but the ruling of ram ghulam v. manohar das a.w.n. (1887) 59 which is a ruling.....
Judgment:

Karamat Husain, J.

1. In this case one Narain Das an occupancy-tenant, executed a simple mortgage-deed on the 25th August 1904 of a grove of mango trees standing upon his holding. Mangal Sen on the 19th July 1909 brought an action on the above-mentioned mortgage-bond for the recovery of his money. Two pleas were urged in defence.

2. The first was that as the bond was not registered it was not admissible in evidence and created no charge in favour of the mortgagee, the second was that the suit was barred by limitation. The learned Munsif came to the conclusion that the trees which were hypothecated were not immovable property within the meaning of Section 59 of the Transfer of Property Act or Section 17 of the Registration Act and that, therefore, the bond required ho registration. On the question of limitation the learned Munsif relying, on Ram Ghulam v. Manohar Das A.W.N. (1887) 59 came to the conclusion that the suit was not barred by limitation. The learned Munsif gave the plaintiff a decree.

3. There was an appeal by the defendant to the lower Appellate Court and the pleas of registration and limitation were repeated. Those pleas found favour with the lower Appellate Court which reversed the decree of the Court of first instance and dismissed the claim.

4. The plaintiff has preferred a second appeal to this Court and it is urged on his behalf that the bond did not require registration and the suit was not barred by limitation.

5. The expression immoveable property' according to Section 3 of the Transfer of Property Act; does not include standing timber and, therefore, the provisions of Section 59 of that Act have no application to the hypothecation of trees. Standing timber has been excluded from Section 3 of the Registration Act also and, therefore, it is evident that a grove, apart from the land on which it stands, is not immoveable property for the purposes of registration. But the ruling of Ram Ghulam v. Manohar Das A.W.N. (1887) 59 which is a ruling of a Bench of two Judges of this Court, in very clear terms lays down that, although standing trees are not immoveable property in other Acts, for other purposes they are immoveable property within Article 132 of the Limitation Act. I am bound by that ruling and hold that the suit is not barred by limitation.

6. The appeal prevails and I, therefore, decree it with costs.


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