P.V. Rajamannar, Officiating C.J.
1. This appeal relates to two coconut gardens situated in Lloyds Road and Sullavan's Garden Road, Mylapore, in the City, which admittedly belong to plaintiffs 1 to 3 who are respondents 1 to 3 here. The first plaintiff is the son of one Kandaswami Gramani, and plaintiffs 2 and 3 are the grandsons of Kandaswami by the first plaintiff's brother. The first item originally belonged to Jagadambal, wife of Kandaswami Gramani. The fourth plaintiff who is the fourth respondent claims to have obtained from plaintiffs 1 to 3 the right of tapping the coconut trees in these two gardens from 1st October, 1947, for a period of one year. The defendant has been enjoying the right of tapping the coconut trees in these two gardens for toddy continuously from 1st October, 1934. So far as item 1 is concerned, the defendant obtained a right to tap the trees for a period of three years from Kandaswami Gramani by a registered agreement, Ex. P. 1, dated 1st March, 1935. This covered the period from 1st October, 1934 to 30th September, 1937. For the next year, from 1st October, 1937 to 30th September, 1938, he executed another agreement on 15th September, 1937, Ex. P. 2. Thereafter, it is common ground that there were no further agreements executed, but the defendant continued year after year to enjoy rights similar to rights covered by Exs. P. 1 and 2 under substantially similar terms, substantially, because the rent was being raised occasionally. So far as item 2 is concerned, there is no document. But it is common ground that the terms in respect of this item were identical with those in respect of item 1. Though the learned advocate for the defendant-appellant contended that there were material alterations in the terms under which the defendant enjoyed the trees in the two gardens subsequent to 1938, we consider that substantially and in so far as they are material for the disposal of this appeal, the conditions continued to be the same as those contained in Ex. P. 1.
2. On the 5th September, 1947, plaintiffs 1 to 3 issued a notice to the defendant through their advocates informing him that he must quit the properties and stop entering thereon for any purpose on and from 1st October, 1947. The position taken up by the plaintiffs was that the defendant was being granted a licence year after year to enjoy the usufruct of the coconut trees in the two properties and that the last of such licences came to an end by efflux of time on 30th September, 1947. The defendant refused to comply with that demand on the ground that he was an agricultural lessee entitled under law to six months' notice. A week after the issue of that notice, the plaintiffs instituted the suit out of which this appeal arises on the Original Side of this Court praying for a permanent injunction restraining the defendant from causing any obstruction to the fourth plaintiff, his servants and agents, taking charge of half the number of trees in the two gardens and doing all usual and necessary acts for making the trees fit for yielding toddy from 1st October, 1947 and also for a permanent injunction restraining the defendants, his servants and agents from entering into the two gardens after the expiration of 30th September, 1947. Kunhi Raman, J., who tried the case held that the defendant was a mere licensee and not a lessee and that the licence was properly terminated with effect from 30th September, 1947. He granted both the prayers of the plaintiffs and decreed the suit. The defendant is the appellant.
3. The only question which falls to be considered in this appeal is whether the defendant was in the position of a lessee from plaintiffs 1 to 3 as regards the right to tap the coconut trees in the two properties for toddy, or whether he was in the position of a mere licensee. Both Mr. Ramachandra Aiyar for the appellant and Mr. Narasimha Ayyar for the contesting respondents attempted to raise other alternative pleas, but we are convinced that these really do not arise and they will be dealt with later briefly.
4. As the nature of the relationship between the defendant and plaintiffs I to 3 really depends on a construction of the terms of the agreement dated 1st March, 1935, Ex. P. 1, it is necessary to extract the material portions from this document. It purports to be an agreement of rent in respect of the toddy yield of coconut trees executed in favour of Jagadambal Ammal by the defendant. The following portions of the document are material for this appeal:
I have agreed with you that I will act in accordance with the undermentioned conditions for the sake of my enjoying for a period of three years from October 1934 to the 30th of September 1937, the produce only of the coconut trees situate in the coconut garden.... In case you lease the aforesaid trees to any other person on the expiry of the aforesaid stipulated period I have no objection whatever to such lessee entering into the garden even a month previously and commencing and doing before hand itself the acts which he may require to do. I shall have (he trees in the aforesaid garden marked and enjoy the toddy yield. I shall safeguard the said trees from damage of any kind. You shall yourself enjoy the coconuts, etc.,... from 12 trees of your choice in the garden aforesaid. I shall have no interest whatever in the produce thereof. For enjoying the usufruct of the trees leased out to me I shall pay a monthly rent of Rs. 150 (rupees one hundred and fifty) in cash, on or before the 15th of every month either to you or to your order and obtain receipt. I shall have nothing whatever to do with the leaves, the spa the and the pannadai (fibrous webs) etc., falling (from the trees) in the aforesaid garden. You shall yourself at your cost bale water etc., for the trees in the aforesaid garden and keep (the same) in good condition....
You shall yourself with your men and at your expense do all the acts of bettering or improving the vacant land in the said garden or baling out water, etc., and keep the garden in good condition
I shall deliver possession to you of your garden in the condition in which you delivered possession (to me). To this effect is the agreement of rent in respect of toddy yield of coconut trees executed by me with my consent. I have nothing to do with the land. Only the toddy.
On a plain reading of the document, it is clear that the rights which the defendant obtained thereunder were (1) the right to enjoy the toddy yield from the trees, and (2) the right to enter upon the land for the said purpose. It is quite clear that the defendant did not obtain any right in and to the land. He was not entitled to the exclusive possession of the land as such. The owner was entitled to make such use of the vacant land as she wanted to and she was expected, at her cost, to water the trees and keep the garden in good condition. The defendant cannot, therefore, be held to be a lessee of the garden as such. So far as the land was concerned, he was only a licensee and his right to enter upon the land and to use the land was only so long as he had the right to enjoy the toddy yield from the trees. The next question is whether this right to take the toddy yield from the trees to which certainly the defendant was entitled under the document was a right in the nature of a licence or was it a lease of immoveable property Section 105 of the Transfer of Property Act defines a lease thus:
A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money....
A licence is denned in the Indian Easements Act, in Section 52 as follows:
Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.
5. According to Section 3 of the Transfer of Property Act, immoveable property does not include standing timber, growing crops or grass. But there is nothing in that Act otherwise denning immoveable property. We have therefore to refer to the definition in Section 3 (25) of the General Glauses Act which runs thus:
Immovable property ' shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth.
6. Now, can the right to tap the coconut trees for toddy be said to be a benefit to arise out of land If it can be, then the right which the defendant obtained under Ex. P. 1 would be immoveable property. To decide this question, it is useful to refer to the leading case of Marshall v. Green (1875) L.R. 1 C.P.D. 35 for the statement of the law with regard to this subject, which is contained in the judgment of Lord Coleridge, C.J., He cites the following passage from the notes of Sir Edward Vaughan William to the case of Duppa v. Mayo;
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.
This proposition has been applied again and again, because it affords a clear and intelligible rule. It was applied in the Full Bench decision of this Court in Seeni Chettiar v. Santhanathan Chettiar (1897) 6 M.LJ. 281 : I.L.R. 20 Mad. 58 where it was decided that a document which assigned a right to cut and enjoy trees etc., standing in the village tank for a period of four years from its date conveyed an interest in immoveable property, because it was contemplated that the assignee should derive a benefit from the further growth of the things sold, from further vegetation and from the nutriment to be afforded by the land. That an application of this test to a case like the present inevitably leads to the conclusion that the right covered by the document, Ex. P. 1, in the case, is a right to an interest in immoveable property is brought out by the observations in the decision in Natesa Gramani v. Tangavelu Gramani I.L.R. (1914) Mad. 883. No doubt that was a case the decision in which depended upon the language in the Indian Registration Act. The learned Judges there had to deal with a document which conferred on the transferee the right to enjoy the produce of the palmyra trees in the garden including toddy, fruits, etc. White, C.J., said that under that document the person who is entitled to take the toddy was entitled to an interest in land, because as he put it, ' without land there would be no tree and without tree there would be no toddy '. Oldfield, J., observed thus:
No doubt in the present case, in which plaintiff's right was to draw palmyra juice, cut such leaves as his doing so involved and take the fruits of the trees, his right to do so for two reasons entitled that he should benefit to adopt an expression from Marshall v. Green (1875) L.R. 1 C.P.D. 35 by ' the nutriment afforded by the land'.
The decision in that case eventually turned on the definition of moveable property in the Registration Act which included ' standing timber, growing crops and grass, fruit upon and juice in trees.'
7. Applying the same test, it was held by a learned Judge of the Allahabad High Court in Shiv Dayal v. Puttu Lal I.L.R. (1931) All. 437 that a mortgage of a fruit-bearing tree is a mortgage of immoveable property.
8. Applying this test, there can be no doubt that the right to tap the coconut trees and obtain toddy is in the nature of immoveable property because it is a benefit which arises out of land.
9. In this view, it is unnecessary to deal with the contention of Mr. Ramachandra Aiyar for the appellant that exclusive possession was given to the defendant under Ex. P. 1 which he continued to have to the date of the suit and therefore he was in the position of a lessee. Having regard to the circumstances which we set out at the opening, it cannot be said that exclusive possession of the entire garden was conveyed to the defendant. So far as the land itself was concerned, he was only in the position of licensee, but so far as the trees in the garden were concerned, excepting 12 trees which had been reserved for the use of the owner, as regards the rest of the trees and his right to tap them for toddy, the defendant was entitled to an exclusive right. Kunhi Raman, J., after referring to the decisions in Semi Chettiar v. Santhanathan Chettiar (1897) 6 M.LJ. 281 : I.L.R. 20 Mad. 58 and Natesa Gramani v. Thangavelu Gramani I.L.R. (1914) Mad. 883 and referring to the terms of Exs. P. 1 and P. 2 took the view that these two documents created only a licence in favour of the defendant to enjoy the yield of toddy from the trees in the two gardens. We think that evidently this aspect which we have just dealt with, namely, that the right to enjoy the yield of toddy from the trees would be in the nature of immoveable property and therefore the right conveyed under Exs. P. 1 and P. 2 would be in the nature of a leasehold right, was not stressed before the learned Judge.
10. It was not seriously disputed at the trial that if the defendant was a lessee, the plaintiffs' suit must fail. But before us, Mr. Narasimha Aiyar contended that even if the defendant was a lessee he was holding under a specific lease for one year ending with 30th September, 1947, and therefore the lease in his favour came to an end by efflux of time. On the evidence, we do not think it can be said that the plaintiffs 1 to 3 have established the case set out in the plaint that there was an oral lease for one year commencing from 1st October, 1946, and terminating on 30th September, 1947. It was therefore necessary for plaintiffs 1 to 3 to legally determine the lease in favour of the defendant which may be presumed to be from year to year. The notice issued on 5th September 1947 cannot be treated as a proper and valid notice. We are also inclined to think that the lease of the toddy yield is a lease for agricultural purposes and therefore a sufficiently reasonable notice should be given before it could be properly terminated. The principle underlying Section 106 of the Transfer of Property Act has been applied in several cases in this Court to agricultural leases, though the provisions of the Transfer of Property Act might not be applicable to them.
11. In the view we have taken, it is unnecessary to deal with the alternative contention of Mr. Ramachandra Ayyar for the appellant that, even if the appellant was a licensee the licence could not be validly terminated.
12. As the lease in favour of the defendant had not been validly terminated on the date of the suit, plaintiffs 1 to 3 and the fourth plaintiff in their right were not entitled to obtain a permanent injunction restraining the defendant from enjoying the rights to which he was entitled under the lease. The appeal is therefore allowed and the suit is dismissed with costs throughout.