1. The plaintiff, who could not succeed in either of the courts below, has come up by way of second appeal. The suit O. S. No. 338 of 1975 on the file of the learned District Munsif, Mayuram, was one for a permanent Injunction contending that a bare right to pluck cocoanuts would amount to a lease, and, so long as the lease is subsisting between the parties, he would be entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act and therefore, he could not be evicted nor could his enjoyment be disturbed. In as much as there is interference with his enjoyment by the first defendant Devasthanam, it had become necessary to file the suit. In defence, it was contended that a bare right to pluck cocoanuts would not amount to lease but a licence. This defence prevailed with the courts below and hence the second appeal.
2. What is urged before me by the learned counsel for the appellant is, having regard to the rulings in Venugopala Pillai v. Thirunavukkarasu, (1948) 2 Mad LJ 155: (AIR 1949 Mad 148) and Ranga Iyengar v. Sivaswami Pandaram, which are almost on all fours to this case the appellant is entitled to succeed. A right to pluck cocoanuts cannot be called a mere licence, because having regard to the definition of immovable properties of S. 3, clause (26) of the General Clauses Act, it would constitute a benefit arising out of land. Therefore, once there is a transfer of interest in the immovable property which would take within it the benefit arising out of that, the appellant's case ought, to have been accepted. As against this, the learned counsel for the respondents, strongly, relying upon the decision reported inVenkatachalapathi Odayar V. Rajalakshmi Ammal, (1981) 1 Mad LJ 11, states that such a right would not amount to a lease but a licence. There also what was conferred was a mere right to Pluck cocoanuts without any interference (interest?) in the property.
3. Having regard to the above arguments, the only question that arises for my determination is, where a right to pluck cocoanuts is conferred upon the transferee, whether it would amount to, a lease or licence? In (1948) 2 Mad LJ 155: (AIR 1949 Mad 148), the question arose whether right to tap the cocoanut trees for toddy would amount to a licence or not. In answering this, the Division Bench of this court, consisting of Raiamannar, Officiating C. J, as he then was, and Yahya Ali J. observed at page 157-
"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 immovable property? S. 105 of the Transfer of Property Act defines a lease thus -'A lease of immovable 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 defined in the Indian Easements Act in S. 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 immovable 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 licence.' According to Sec. 3 of the T. P. Act, immovable property does not include standing timber, growing crops or grass. But there is nothing in that Act otherwise defining immovable property. We have therefore to refer to the definition in S. 3(26) of the General Clauses Act which runs thus:-
'Immoveable 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.'
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 immovable property. To decide this question it is useful to refer to the leading case of Marshall v. Green, (1875) 1 CPD 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 Vaugham William to the case of Duppa v. Mayo (1669-85 ER 366):- "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, out 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 Mad LJ 281, 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 immovable property, because it was contemplated that the assignee 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. 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.l. in the case, is a right to an interest in immovable Property is brought out by the observations in the decision in Natesa Gramani v. Thangavelu Gramani, (1915) ILR 38 Mad 883: (AIR 1914 Mad 362). 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 documents the person who is entitled to take the toddy was entitled to an interest in land, because as he put it, 'without land t ere 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 entailed that he should benefit to adopt an expression from Marshall v. Green, (1875) 1 CPD 35, by the nutriment afforded by the land'. The decision in that case eventually turned on the definition of movable property in the Registration Act which includes 'standing timber, growing crops and grass, fruit upon and juice in trees'."
4. Applying the, same test, it was held by a learned Judge of the Allahabad High Court in Shivdayal v. Pattulal, (1933) ILR 54 All 437: (AIR 1933 All 50), that a mortgage of a fruit bearing tree is a mortg1ge of immovable property. Applying this test, there can be no doubt that the right to tap the cocoanut trees and obtain toddy is in the nature of immovable property because it is a benefit which arises out of land.
5. Applying the ratio of this ruling, my learned brother, V. Ramaswami J. in Renga Iyengar v. Sivaswami Pandaram, held:-
"Since in this case the lease was not a lease of the land but it was a lease of the right to cut and remove cocoanuts from the trees standing on immovable property, it is a lease of immovable property itself and as held by this court, it is also an agricultural lease."
Unfortunately, neither of these two decisions was brought to the attention of my learned brother, Ramanujam J. in Venkatachalapathi Odayar v. Rajalakshmi Ammal. (1981) 1 Mad LJ 11, wherein also the identical question was as to whether right to collect the usufruct of the cocoanut trees without any right in the land would amount to a licence or a lease. The learned Judge held-
"In this case, the defendant has been specifically given the right to collect the usufructs from the 135 cocoanut trees situate on the land. The case of the defendant is not that any right to cultivate the land as such had been given to him. As a matter of fact, the earlier documents, Exs. A.7 and A.8, evidencing similar transactions do not create any interest in the land in favour of the defendant and the only right granted to him was to collect the usufructs from the cocoanut trees for a Period of one year. Having regard to the fact that the defendant has not been granted any interest in the land and has not been authorised to put the land to any particular use, the transaction between the plaintiff and the defendant can only be taken as a licence. It also does not appear that an exclusive possession of the land has been given to the defendant, though the defendant has been asked to attend to the watering of the cocoanut trees and also to attend to the fencing of the land. It is only for the purpose of protecting his own interest and to secure the usufructs from the cocoanut trees to him. As I am of the view that the transaction between the plaintiff and the defendant is a licence , there is no question of issuing a notice of termination as 'contemplated in S. 106 of the Act'."
6. It requires to be noted that the ruling of the Division Bench takes note of the definition of 'land' as occurring under S. 3, clause (26) of the General Clauses Act, which unfortunately has not been Placed before this court. Bound as I am, I have no other option but to follow the ruling of the Division Bench as applied by V. Ramaswami J. in Renga Iyengar v. Sivaswami Pandaram, . Accordingly the
second appeal will stand allowed holding the plaintiff to be a lessee, No costs.
7. Appeal allowed.