1. The respondents-plaintiffs entered into an agreement on 4-7-1962 with the defendant agreeing to sell the 'standing and fallen trees' in their estate known as 'Shanti Plantations' in Melur Village of Coonoor taluk. The dispute in the suit, out of which this second appeal arises, related mainly to the question whether the mango and jack fruit trees were also sold to the defendant (appellant) under the said agreement dated 4-7-1962. The relevant portion of the clause in the agreement reads as follows:
'......... it is agreed that the sellers will sell and the purchaser will purchase all standing and fallen trees (excluding sandal-wood, coconut, arecanut and all specified fruit trees and tamarind trees and 10 or 15 silver oak trees of below 36' girth) grown and standing in...... Sember estate (now known as Shanti Plantations)..........'
It is the case of the plaintiff that the mango and jack fruit trees were not sold under this clause while the defendant contended that they were sold. Both the Courts below have accepted the plaintiffs' contention and decreed the suit for balance of consideration to be paid under the agreement.
2. In this appeal, Thiru M. S. Venkatarama Iyer, learned counsel for the appellant contended that the defendant was a timber merchant and having regard to that fact, the agreement will have to be interpreted as one for the sale of all timber trees of 'Shanti Plantations' and since mango and jack fruit trees are timber trees, they were not excluded from the agreement of sale dated 4-7-1962. This contention of the appellant is unsustainable. There could be no dispute that, in this part of the country, mango and jack fruit trees are considered as timber trees. It is seen from some of the decisions which considered the definition of 'immoveable property' under Section 3 of the Transfer of Property Act, that in order that a tree may be considered as a 'standing timber', its wood must be suitable for use for building houses or repairing houses bridges or ships or for furniture, etc. In particular, it was held in Pirthidin v. Ramlal, AIR 1926 Oudh 136, 'it is no doubt true that in these provinces mango wood is one of the commonest kinds of timber and is generally used in building and for other purposes.' This decision followed an earlier decision of Bombay High Court in Krishna Rao v. Babaji, ILR (1900) 24 Bom 31. In this decision also it was held that the term 'timber' is meant properly trees that are fit to be used in building and repairing houses and that the mango tree might be classified as a timber tree where, according to the custom of a locality, its wood is used in building houses. But, factually, there is no basis for the argument that the agreement was only for sale of timber trees as the clause actually provides for sale of 'all standing and fallen trees' excluding certain specified fruit trees. In the written statement, filed by the appellant, it has been stated that there were a number of jungle wood trees in the area and those trees were also agreed to be included in the proposed sale as it constituted part and parcel of the estate. In his evidence, also, D.W. 1, stated that all the trees in the estate were included in the agreement and that he was not permitted to cut about 51 jungle trees which were in the estate, by the plaintiffs. The defendant in his evidence, did not state that only the timber trees were sold to him under the agreement. The learned counsel for the appellant also conceded that as per the agreement, his client had cut and removed a large quantity of forest wood which is used for fuel. Therefore, the relevant portion of the clause in the agreement could not be interpreted as agreeing to sell all timber trees and excluding only those fruit trees which are not timber trees.
3. It was then contended by the learned counsel for the appellant that all the fruit trees were not excluded from the sale under the agreement, but only such of those fruit trees which were 'specified' that are excluded from the sale. Mango and jack trees were not specified' as excluded fruit trees either under the express terms of the agreement or under the agreement between the parties. The learned counsel for the appellant is well-founded in this contention. The clause set out above excluded 'sandalwood', coconut, arecanut and all specified fruit trees and tamarind trees'. There could be no doubt that mango and jack trees are fruit trees. In considering the meaning of the phrase 'planting of fruit trees and fruit gardens' occurring in Section 3(4) of the Madras Estates Land Act, it was held in Vellayappa Chetti v. Subramania Chetti, ILR 50 Mad 482 : AIR 1927 Mad 137, that 'every tree which bears fruit cannot be called a fruit tree and that where a tree is not grown for its fruits to be used, as such, or where it was not an usal crop on the land, it cannot be treated as a fruit tree withim the meaning of that clause.' Even applying this test, mango and jack trees will come withim the expression 'fruit trees'. It may also be mentioned that Section 9(4) of the Malabar Tenancy Act, 1929, expressly includes coconut, arecanut, jack, mango, tamarind, palmyra and cashew nut trees as fruit bearing trees, Therefore, the only question now to be considered is whether the mango and jack fruit trees were 'specified and excluded from the sale agreement. What is excluded under the agreement are coconut, arecanut, tamarind trees and all 'specified' fruit trees. Though the defendant contended on the basis of the evidence of P.W. 2 that mango and jack fruit trees were not specifically excluded from the agreement of sale, the Courts below did not accept the evidence of P.W. 2 on which the defendant relied for this purpose. But then there is no positive evidence to show that mango and jack fruit trees were 'specified' for exclusion under the agreement. In fact, the first plaintiff in his evidence as P.W. 1, stated that the defendant had cut certain unwanted mango and jack trees but not all mango and jack trees. D.W. 1 also stated in his evidence that he had cut some mango and jack trees but cannot say how many were cut. It is, therefore, clear that there was no specific exclusion of mango and jack trees generally. There is also no evidence, in this case, which could be relied on to show that though there was no general exclusion of mango and Jack trees from the agreement of sale, certain of the mango and jack trees were specified or pointed out, and excluded with reference to the age, yield or otherwise. In the absence of any such specific exclusion, the general words 'all standing and fallen trees' will include mango and jack fruit trees also in the sale agreement. The conduct of the parties and the agreement of the parties just prior to the execution of the agreement also confirm this conclusion that the mango and jack trees were not excluded from the sale. It may be seen that though under Ex. B-3, which is a note preceding the agreement to sell signed by both the parties, 'all fruit trees' were sought to be excluded from the sale, when they entered into the formal agreement under Ex. B-1 dated 4-7-1962, they modified that clause and provided that only coconut, arecanut and all specified fruit trees' were excluded from the sale. This clearly indicates that it was not the intention of the parties to exclude all the fruit trees but only the specified fruit trees were to be excluded. Though they were aware that there were a number of mango and jack trees, they did not exclude those items specifically. Even subsequent to the agreement, as is seen from the evidence, the defendant had cut mango and jack trees without any objection by the plaintiff. Therefore, there could be no doubt that mango and jack trees were not excluded from the sale agreement.
4. The next contention of Thiru M. S. Venkatarama Iyer, learned counsel for the appellant in this appeal, was that his client paid a sum of Rs. 1725 as evidenced by Ex. B-6 towards the sale consideration of 38000 and this should have been given credit to. The courts below have concurrently found that this amount was not paid towards the agreement as sale consideration but it related to a different agreement. There are no grounds to interfere with this finding.
5. On the finding that the defendant was entitled to cut and remove mango and jack trees under the agreement of sale, evidence by Ex. B-1, the plaintiffs were not entitled to the decree for the balance of consideration as they had committed a breach of the agreement in not permitting the defendants to cut the mango and jack trees remaining on the estate. It may also be mentioned that as per the Commissioner's valuation, the value of jack trees, mango trees silver oak trees and the jungle wood trees which were left out in the estate, was a little more than Rs. 7000. The defendant had already paid Rs. 31000 out of the sale consideration of Rs. 38000. Therefore, the plaintiffs could not get any relief in the suit,. The defendant has reserved, in paragraph 9 of his written statement, his right to claim compensation from the plaintiffs for loss sustained on the ground of the non-performance of the terms and conditions of the agreement. Therefore, no question arises as to whether the defendant would be entitled for damages in this suit itself. The second appeal is accordingly allowed but there will be no order as to costs. Leave refused.