1. In this case, an interesting question of laws arises on certain undisputed facts. The appellant herein is the owner of Singara Estate situate at Mosinagudi village in Ootacamund taluk. On 16th June 1969, a tusker elephant was found dead in his patta land bearing S.No. 207 of Mosinagudi village which formed part of his estate. On 17th June 1969, the plaintiff informed the second defendant, of his intention to bury the carcase in his estate. The Forest Officer, Segur and a Veterinary doctor came to the spot and conducted an autopsy and on the instructions of the Forest Range Officer the Forester of Segur section took custody of the two tusks of the dead elephant from the plaintiff after giving an acknowledgment that the tusks would be returned to the plaintiff after getting formal approval of the Higher authorities. Since the second defendant did not returned the tusks, the plaintiff called upon the department to return the same. However, the plaintiff was informed by the second defendant that his claim for return of the tusks had been rejected. The plaintiff, therefore, filed a suit, O.S. No. 43 of 1971 on the file of the Sub-Court, Ootacamund, for the recovery of a sum of Rs. 7000 being the value of the two tusks.
2. The defendants resisted the suit contending that the elephant was found to be moving in the forest with difficulty, that the guards of the forest department were keeping watch over the elephant since 15 days prior to its death, that the tusks are the property of the Government and that, therefore the plaintiff is not entitled to ask for the return of the tusks.
2A. The trial court after duly considering the evidence found that the tusker found dead in the plaintiff's patta land was a wild elephant, that the tusker had been shot at, several times by some unknown persons during a period of six months prior to its death, that it was moving about in the reserve forest in the wounded condition, that the officials of the forest department kept a watch over its movements and that subsequently they found it lying dead in the patta land of the plaintiff. On these facts which are more or less admitted, the trial court went into the question as to who will be entitled to the tusks in question as between the plaintiff on the one hand and the Government on the other. The Government placed reliance on S. 3 of the Wild Birds and Animals Protection Act and also G.O.Ms. No. 2152 dated 21-2-1960 in support of its claim for the ownership of the tusks in question. The trial court held that neither the provisions of the said Act nor the Government Order in question will apply to the facts of this case and that under the general law, the tusker, which is a wild animal, having been found dead in the plaintiff's patta land, he is entitled to the ownership of the tusks. According to the trial court G.O.Ms. No. 2152 dated 21-6-1960 which treated a ten mile belt around Mudumala Wild Life Sanctuary as a close time for the whole year and which made it unlawful to capture, sell, buy or possess any bird or animal or the flesh thereof which had not been captured or killed before the commencement of such close time cannot apply to the case in question. It also held that Wild Birds and Animals Protection Act is applicable only in respect of animals and birds which are specified in the schedule and not to an elephant which is not an animal specified in the schedule to that Act.
3. The matter was taken up in appeal to the District Court. The District Court after agreeing with the facts found by the trial court held that in view of another G.O.Ms. No. 3440 dated 15-11-1954, as the elephant had been pursued by the department the two tusk vests in the Government. In this view, it allowed the appeal and dismissed the plaintiff's suit.
4. In this second appeal, the decision of the lower appellate Court that the property in the dead elephant vested with the Government has been challenged. As the facts set out above are not in dispute, the only question to be considered here is as to who will be entitled to its tusks on the above admitted facts.
5. As already stated in the appellate Court the respondents have relied on G.O.Ms. No. 3440 dated 15-11-1954 in support of its conclusion that the property in the dead elephant belonged to the Government. The said G.O. says--
"A man has a property ratione loci in animals which are ferae naturae on his land but this property ceases when they quit or are hunted on the land. The right of the owner of a forest continues after they are hunted out of the forest but not after they voluntarily quit it (page 205 of Col. II of the English and Empire Digest). From the principles set out above, it will be seen that a wild elephant escaping from a Reserve forest without being pursued by the departmental officers will cease to be the property of the Government and if such an elephant is shot dead by a private party in another man's land, the property in that animal will be that of the owner of the land. As the ownership of the tusks of the Wild Elephants shot on private lands is thus well settled, the Government do not agree to amend S. 6 of the Madras Wild Elephants Preservation Act, 1973, as suggested by Chief Conservator of Forests. They therefore direct that the proposals of the Chief Conservator of Forests be dropped."
As per the said G.O., a wild elephant escaping from a reserve forest without being pursued by the department officers, will cease to be property of the Government, and if such an elephant is shot at by a private party in another man's land the property in that animal will be that of the owner of the land. The lower appellate court has taken the view that as the departmental officers had kept a close watch over the movements of the animal for about 15 days prior to its death, the Government can claim ownership of the tusks. I do not see how the lower appellate Court has taken the view that the dead elephant in this case, had earlier been pursued by the departmental officers. Admittedly, the elephant was a wild animal, and it was moving about after it has been short by some unknown persons. It is not the case of the department that the officers of the department shot the elephant and the death was as a result of the same. The evidence on the side of the department is that the elephant was found moving in a wounded condition and that was being watched under the instructions of the higher authorities. The evidence does not indicate that the animal was pursued by the forest officers at any time. The mere keeping watch over an animal which is moving about in the forest cannot amount to actual pursuit of the animal by the forest officers. Therefore the lower appellate court is in error in the application of the Government order. As a matter of fact, a close reading of the Government Order would clearly indicate that the ownership of the tusks vested only with the owner of the land in which it was found dead. Perhaps. the tusks will become the Government property if the officials of the Forest department had chased of the animal and the animal as a result of the chase entered into the plaintiff's land and died there. But, so long as there is no proof of any chase and the wild animal had voluntarily left the reserve forest and died in the plaintiff's patta land, I do not see how the Government can claim ownership of the tusks in this case.
6. The position of wild animals of ferae nature as well as the rights of the owner of the property in respect of such wild animals have been discussed in various text books as well as in certain judicial decisions. In Makath Unni Mani v. Malabar Kandapunni Nair (1882) ILR 4 Mad 268 the owner dug a pit in his land for the purpose of capturing wild elephants and an elephant fell into that trap but another person took it out of the pit and converted it into his own use. The question arose as to whom the elephant belonged. It was held that the plaintiff who dug the pit in this own land in which the elephant fell was entitled to the elephant. In Madhavan v. State of Kerala, , it has been held that though there can be no
property existing in an owner of the land in animals ferae nature so long as they remain in the state of nature, when such animals are killed or reclaimed by the owner of the land they become his property, absolutely when they are killed and in a qualified manner when they are reclaimed.
7. In Halsbury's Laws of England, 3rd Edn Volume I, at page 656 in para 1252. the law is stated thus--
"There is no absolute property in wild animals while living, and they are not goods or chattels. There may, however, be what is known as a qualified property in then, either (1) ratione impotentiae et loci, (2) ratione soli and ratione privilegii, or (3) per industriam. This qualified property is defeasible, for if the animal has not animals revertendi but resumes its wildness and is at large again and not under pursuit it is free and may be taken by another person. Thus the special right of property, called qualified property if conferred ratione impotentiae et loci, ratio soli or ratione privilegii is in substance an exclusive right to reduce the wild animal into possession but if acquired per industriam, it is an exclusive right to the possession of the wild animal, which, in the case of a living animal, will continue while it has animus revertendi".
In para 1255, page 657, it is further pointed out as follows--
"The owner of land, who has retained the exclusive right to hunt, take, and kill animals ferae nature on his own land, has a qualified property ratione soli in them for the time being while they are there. But, if such an owner grants to another the right to hunt, take and kill animals ferae nature on his land, the grantee has qualified property ratione privilegii, as in the case of a free warren on another man's soil, or a licence or grant of shooting or sporting rights. Such a grant is an incorporeal hereditament and an interest in reality and amounts to a licence of a profit a prendre which can only be validly granted or demised by deed."
8. At page 858 in para 1256 under the Head "Property in Wild Animals when Killed" it is stated "although there is only a qualified property in animals ferae nature while the are alive, yet if they are killed, or die, there is an absolute property in the dead animal, which vests in the owner or occupier of the land.........."
In Halsbury's Laws of England, III Edn; Volume 18, page 128 in para 262 under the caption 'Property in and rights over games' it has been said--
"The Law of England does not admit a right of absolute property in game which belongs to a class of animals ferae naturae, but it does intervene to protect private interests in game by limiting the right over it to certain classes of persons. These classes acquire their rights in one or other of two ways--(1) ratione privilegii, that is, by special grant from the Crown; (2) ratione soil that is by virtue of ownership or occupation of the soil........ the right of the occupier of the soil have been admitted and extended until at the present day the right to kill and take game is recognised as being incidental to the occupation of land and the property in such animals is therefore not absolute or actual, but qualified and potential........."
Again at page 129 in para 263 it is stated--
"....the property which, when the game is alive and free, is only qualified or potential, becomes absolute when the game is killed or otherwise reduced into possession. The game, when dead or captured, belongs to the owner of the land where it is killed, and he can claim possession of it, and if necessary, bring an action for trover".
8-A. In Black's Law Dictionary, IV Edn. at page 1383 under the heading 'Qualified Property' it is stated as follows--
"Property in chattels which is not in its nature permanent, but may at sometime subsist and not at other times, such for example, as the property a man may have in wild animals which he has caught and keeps, and which are his only so long as he retains possession of them."
In the Penal Law of India by Hari Singh Gaur, VII Edn; volume III, page 1883, it is stated that in the case animals ferae nature the property in them can only be acquired it they are dead, tamed or confined, otherwise they are presumed to be in their original state.
9. The House of Lords in Blades v Higgs, (1865) II HL Cas 621, had occasion to consider the legal position when a stranger without the permission of the owner of the property kills an animal on the latter's land and carries it away. The Lord Chancellor had observed in that case that 'property ratione soli is the common law right which every owner of land has to kill and take all such animals ferae nature as may from time to time be found on his land, and as soon as this right is exercised the animal so killed or caught becomes the absolute property of the owner of the land........"
"By the civil law the person who took or reduced into possession any animal ferae naturae, although he might be a trespasser in so doing, acquired the property in it. This appears clearly from the passage, in the institutes cited in the argument. If the same ratio prevails in our law, then the rabbits in question were not the property of Lord Exeter, but of the poacher who took and killed them upon his Lordship's land".
The position is again stated by the learned Lord as follows--
"With respect to wild and unreclaimed animals, therefore, there can be no doubt that no property exists in them so long as they remain in the state of nature. It is also equally certain that when killed, or reclaimed by the owner of the land on which they are found, or by his authority, they become at once his property, absolutely when they are killed, and in a qualified manner when they are reclaimed."
Therefore, it will be seen that though there can be no property existing in an owner of a land in animals ferae naturae, so long as they remain in the state of nature, when such animals are killed or reclaimed by the owner of the land they become his property, absolutely when they are killed, and in a qualified manner when they are reclaimed."
10. In the decision of the American Supreme Court in Geer v. State of Connecticut, (1896) 161 US 519: 40 L Ed 793 a slightly different view has been expressed. In that decision the attack was against a particular piece of legislation prohibiting the killing of certain birds during a particular season, for the purpose of conveying the same beyond the limit of the State. There was also a prohibition regarding the transport of such birds killed within the State. These provisions were attacked on the ground that they violate inter-State Commerce clause of the constitution of the United States. The American Supreme Court expressed the following view--
"From the earlier traditions the right to reduce animals ferae naturae to possession has been subject to the control of the law giving power".
"We take it to be the correct doctrine in this country that the ownership of wild animals, so far as they are capable of ownership, is in the State, not as proprietor but in its sovereign capacity, as the representative and for the benefit of all its people in common".
In corpus juris Secundum, Vol. III, page 1087, it is stated that the wild animals at large within its borders are owned by the State in its sovereign as distinguished from its proprietary capacity, and neither such animals nor any parts thereof are subject to private ownership except in so far as the State may choose to make them so. Such animals become the subject of private ownership only so far as the people through their legislature may elect to make them so.........."
11. In American Jurisprudence, Volume II, page 694, the following passage occurs--
"In the United States the ownership of wild animals and fish not reduced to actual possession by private persons is in the people of the State in their collective sovereign capacity, or in the States as representing all the people".
Thus, the legal position in United States of America appears to be some-what different from the Law in India and in England.
12. From the above discussions, it is clear whatever might be the position in regard to live animals, as regards wild animals which are found dead in a private land the owner of the land is entitled to claim ownership of the dead animal, and that the bodies of wild animal which are found on a particular land became the absolute property of the owner of the soil even if killed by a trespasser, unless the trespasser chased the animal on the land of one person and killed it on the land of another. Admittedly, the animal was found dead in the patta land of the appellant. The dead elephant in question had not been chased or pursued by the forest authorities but it had been shot at by some unknown persons and it voluntarily quit the reserve forest and entered the private land where it died. In this view the order of the lower appellate Court cannot be sustained.
13.The result is that the second appeal is allowed with costs and the suit O.S. No. 43 of 1971 on the file of the Sub-Court, Ootacamund will stand decreed with costs as prayed for.
14. Appeal allowed.