Sen Gupta, J.
1. This appeal is directed against the decision of Shri S. K. Ghosh, District Judge, Bankura in Money Appeal No. 11 of 1958 affirming the judgment and decree passed by Shri B. C. Choudhury. Munsif, First Court, at Bankura, in Money Suit No. 17 of 1956.
2. This appeal is at the instance of the defendant and it arises out of the following facts:--
3. The defendant Walamji Lalji was the owner of the jungle to the extent of Re. 0-10-3 ps. situated in the mouza Bhaghakhulamancharpur within P. S. Onda in the District of Bankura. He offered to sell the fuel to the plaintiff in respect of 205.93 acres of land in the property mentioned in the schedule of the document Exhibit 1 termed as 'Satanama'. The said deed was executed by him in favour of the plaintiff on the 5th Magh, 1357 B. S. corresponding to 17th February, 1951. The price was settled at Rs. 1,999. On the date of the execution of the deed the plaintiff advanced a sum of Rs. 600 towards the consideration money. The parties stipulated that the balance of the consideration money would be paid in the following instalments:--
Rs. 66-5-6 p. on the 15th Pous, 1357 B. S.; Rs. 300 on the 15th Magh, 1358 B. S.; Rs. 366-5-3 p. on the 15th Chaitra. 1358 B. S,; Rs. 366-5-3 p. on the 15th Magh. 1359 B. S; and the balance of Rs. 300 to be paid on the 16th Chaitra 1359 B. S.
4. The plaintiff further stipulated that he would obey the directions of the Forest Department as the working of the said forest was to be regulated under the provisions of the Forest Act.
5. Under the directions of the Forest Department the jungle was divided into five blocks; the plaintiff purchaser was permitted to cut the fuel at an interval of one year. As per said direction the plaintiff was to cut fuel of the first block in 1950-51, that of the second block in 1952-53, that of the third block in 1954-55, that of the 4th block in 1956-57 and that of the 5th block in 1958-59.
6. In default of payment of instalments, the defendant brought two money suits being Nos. 14 of 1953 and 48 of 1953 in the 3rd Court of Munsif at Bankura and got decrees for the same.
7. On the 28th January, 1956, the plaintiff brought the Money Suit No. 17 of 1956 in the first court of the Munsif at Bankura on the allegations that the defendant prevented him to cut and remove the fuel from the four blocks to be worked in the year 1952-53 1954-55 1956-57 and 1958-59. He, however, admitted that he could work in the 1st block in the year 1950-51. On the said allegations he submitted that he sustained loss and as such the money payable under the decree passed against him would be considered to have been satisfied and that he was entitled to get back a sum of Rs. 1,500 from the defendant,
8. His further case was that the right of the defendant in the forest having been vested in the State on the 1st of Baisak, 1352 B. S. equivalent to 15th April, 1955, it was not possible for him to work in the 4th and 5th blocks and as such he could not cut and remove the fuel from these blocks and thereby he sustained loss. On that allegation the plaintiff brought the abovementioned Money Suit for realisation of money on account of the damage sustained by him.
9. The defence was that the plaintiff cut and removed the fuel of the forest far before the time during which he was to cut and remove the same. In short, their case was that the plaintiff removed the fuel before 1954-55.
10. The learned Munsif rejected the plea of the defence. The prayer of the plaintiff for a decree for damage caused to him on the allegation that he was prevented to cut the fuel and remove the same in the year 1952-53 and 1954-55 was also refused. But the learned Munsif passed a decree for Rs. 799-9-0 holding that after the vesting of the estate under the provisions of the West Bengal Estates Acquisition Act, the fuel which was to be cut and removed in 1956-57 and 1958-59 could not be so removed as the estate in which the forest was situated vested in the State of West Bengal, the result being that the plaintiff lost his right in the wood purchased by him sustaining the above loss, for which the decree was passed.
11. The said finding of the learned Munsif was upheld by the learned District Judge but on separate ground. Against the said decision this appeal has been preferred.
12. Mr. Dutt learned Advocate for the appellant has contended that the plaintiff purchased the jungle and the fuel therein at a consideration of Rs. 1,999 and that it was an out and out sale; it was a case of sale with immediate effect and the time allowed was only for convenient instalments. The sale was a bare sale of trees. In support of his contention our attention has been drawn to the case of Ajit Kumar Bagchi v. The State of West Bengal, : AIR1957Cal350 wherein Sinha J. (as his Lordship then was) held:
'On a consideration of the transaction in question, that the transaction was a sale of the wood and the document did not create any interest in land.'
13. In deciding the case the learned Judge referred to a decision of this Court in the case of Maharajadhiraj Bahadur of Darbhanga v. Commr. of Agricultural Income-tax, : 21ITR258(Cal) as well as to a decision of the Supreme Court in the case of Firm Chhotabhai Jethabhai Patel & Co. v. The State of Madhya Pradesh, : AIR1953SC108 . In the case in : AIR1957Cal350 the purchaser in the sale of the wood standing in the forest was held to have acquired title thereto and the Government could not prevent the transferee from removing the wood for which he made full payment. In 1957 the Estates Acquisition Act. 1953 was amended by the West Bengal Act XXV of 1957 (West Bengal Estate Acquisition Second Amendment Act, 1957). The amended provision came into operation on January 8, 1958. Since the coming into force of the amended provisions the scope of the law was enlarged and that will appear in Clause (aa) of Sub-section (1) of Section 5 of the West Bengal Estates Acquisition Act which is as follows:--
'All lands in any estate comprised in a forest together with all rights to the trees therein or to the produce thereof and held by an intermediary or any other person shall notwithstanding anything to the contrary contained in any judgment; the decree or order of any court or tribunal, vest in the State.'
From the above it is seen that what vests in the State is not only the land but all the trees standing thereon or the produce thereof held by the intermediary or any other person. The self same question came up after the second amendment of the Estates Acquisition Act before Sinha. J. (as his Lordship then was) in the case of Bhutnath Garai v. Divisional Forest Officer. Midnapore, (1958) 62 Cal WN 610 and his Lordship held as follows:--
'In Ajit Kumar Bagchi's case, : AIR1957Cal350 it was held, on the wording of the particular agreement therein that a prior sale of the 'wood' standing in the forest passed the title thereto to the transferee and the Government could not prevent the transferee from removing the wood, for which he had made full payment. Since the passing of the West Bengal Estates Acquisition (Second Amendment) Act, 1957 being West Bengal Act XXV of 1957 which came into operation on the 8th January. 1958, the law has been made all embracing and what vests in Government is not only the land but all the trees standing thereon or the produce of the trees held by the intermediaries or any other person.
The words 'any other person' cannot be read ejusdem generis and cannot toe applicable only to the kind of persons known as intermediaries.'
His Lordship further held:--
'In the case of forests the dispute was as to whether the wood in the forest which has been sold to outsiders before the Estate Acquisition Act came into operation vested in the State. There can be little doubt that the Amendment (West Bengal Act XXV of 1957) was intended to ensure that it did.'
14. The amended section as it stands now clearly indicates that it has retrospective operation and as such the forest together with all rights in the trees and the produce thereof, though transferred even prior to its coming into operation must be deemed to have vested in the State of West Bengal. Thus as the position stands, we respectfully agree with the decision of Sinha J. in (1958) 62 Cal WN 610. In that view of the matter the contention of Mr. Dutt that the plaintiff purchased the woods of the trees standing in the jungle and that the title to the same having already been passed on the consideration being paid, the same could not be said to have vested in the State of West Bengal is no longer tenable.
15. In the abovementioned case, reported in (1958) 62 C WN 610 Sinha J. further observed as follows:--
'The result is by virtue of this amendment the petitioner's rights have gone and he can no longer take away the wood without the permission of the State. Whether he has rights against the State for damages or otherwise is a matter into which I need not enter, because that is not within the scope of this application.'
16. Mr. Dutt's next contention is that even if it is held that the jungle vested in the State of West Bengal the plaintiff being the purchaser has the right to get compensation from the State of West Bengal.
17. Mr. Palit learned Advocate for the respondent submitted that contract to sell the woods of the jungle became void after the passing of the West Bengal Estates Acquisition Act firstly because the right of the purchaser of the woods in the forest came to an end and secondly the 'Satanama' deed, Exhibit 1 being the sale of immovable property the value of which is more than Rs. 100 (one hundred) and not having been registered it was void and not enforceable under the law. Accordingly his contention is that the plaintiff purchaser has got right to be reimbursed to the extent of the damages sustained by him in this transaction. We have already discussed that matter and held that all lands in any estate comprised in a forest with all rights to the trees therein or to the produce thereof must have vested in the State. In respect of the first contention of Mr. Pelit he has contended that the right which the purchaser had in the jungle had vested in the State of West Bengal and accordingly the purchaser had no right to cut and remove the trees from the said jungle. His further contention is that the right which was given by Ext. 1 to the plaintiff became impossible to be performed by reason of passing of the West Bengal Estates Acquisition Act, in consequence the plaintiff is entitled to get compensation from the vendor for the loss which he sustained, as provided in Sections 56 to 65 of the Indian Contract Act.
18. The second branch of Mr. Palit's argument that the contract was void due to its non-registration depends on the decision in the case of Ananda Behara v. State of Orissa, : 2SCR919 . The following observation of their Lordships will make the position clear:
'Sale of a right to catch and carry away the fishes in specific portion of the lake for a specific future period amounts to a licence to enter on the land coupled with a grant to catch and carry away the fishes, that is to say, it is a profit a prendre which is regarded in India as a benefit that arises out of the land and as such is immovable property.'
19. The said case was considered in the case of Smt. Shantabai v. The State of Bombay. : 1SCR265 . To understand the points raised in the above case we would like to give, in short, the facts of that case out of which that appeal arose:
20. A Zemindar executed on 26-4-48 an unregistered document in favour of his wife, the petitioner, granting her a right to enter, cut and appropriate all kinds of wood from his Zamindari forest. The document purported to be a lease for a period of twelve years and the consideration was stated to be Rs. 26,000. On 31-3-5-1 the proprietary rights in the Zamindari estate vested in the State by virtue of a notification issued under Section 3, M. P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, and thereafter the petitioner was stopped from cutting any wood from the forest. Hence she filed an application under Article 32 of the Constitution praying for setting aside the said order.
21. Bose, J. held therein :
'The document was not a lease but amounted to licence to enter on the land coupled with a grant to cut certain trees on it and carry away the wood, in other words, it was a profit a prendre. Though such trees as could be regarded as standing timber at the date of the document both because of their size and girth and also because of the intention to fell at an early date, would be movable property for the purposes of the Transfer of Property and Registration Acts, the remaining trees that were also covered by the grant would be immovable property and as the total value was Rs. 26,000 the deed required registration. Being unregistered it passed no title or interest and therefore, the petitioner had no fundamental right which she could enforce.'
22. His Lordship further held as follows :--
' 'trees' are regarded as immovable property because they are attached to or rooted in the earth; Section 2(6) of the Registration Act expressly says so and though the Transfer of Property Act does not define immovable property beyond saying that it does not include 'standing timber, growing crops or grass,' trees attached to earth (except standing timber) are immovable property, even under the Transfer of Property Act because of Section 3(26) of the General Clauses Act. In the absence of a special definition the general definition must prevail. Therefore, trees (except standing timber) are immovable property. Before a tree can be regarded 'as standing timber' it must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut reasonably early. The legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the grantee.''
We may also refer to some portions of that decision of his Lordship S. R. Das, C. J. which is to the following effect:
'The petitioner is free to sue the grantor upon that contract and recover damages by way of compensation. The Slate is not a party to the contract and is not bound by the contract and accordingly acknowledges no liability under the contract which being purely personal does not run with the land.'
23. From time to time the question of sale of the standing trees came up before the court for consideration. Prior to the decision of the Supreme Court in the case of : 1SCR265 it was assumed that by such sale the title to the trees passed and the trees being movable property the sale deed required no registration. But the above decision has finally settled that question. By that decision their Lordships differed from the view expressed by the Supreme Court in the previous decision in the case of : AIR1953SC108 .
24. We are, therefore, of the view that the benefit of the standing trees which draw their nourishment from the soil underneath goes to the grantee. Such a right is profits a prendre benefit arising from the land and therefore, an immovable property. Standing timber, growing crops or grass are specifically excluded by Section 3 of the Transfer of Property Act. Trees not being so excluded come within the category of immovable property. In a case where such standing trees of the value of Rs. 100 or upwards, to be cut and removed in future, are transferred, it must be done by means of a registered deed as laid down in Section 54 of the Transfer of Property Act.
25. We, therefore, hold that the trees which were to be cut and removed in future in terms of the deed Ext. 1 are immovable properties and their sale required registration as they were sold at a price more than rupees one hundred. In the result, the second branch of Mr. Palit's argument must prevail.
26. Mr. Dutt next submitted with reference to the decision reported in : 1SCR265 (referred to above) that the plaintiff can get compensation from the State Government under the provisions of West Bengal Estates Acquisition Act. The said contention of Mr. Dutt is not tenable as no title passed to the plaintiff in the jungle or the trees by means of document Ext. 1 due to its non-registration. Accordingly, he cannot get any compensation from the State under the provisions of West Bengal Estates Acquisition Act.
27. Mr. Dutt has next argued that Ext. 1 shows that it was a deed of sale of movable property and not a lease, as such the question of registration does not arise. We have discussed the matters in details. There is no special charm in the word 'sale' as it was a sale of the standing trees to be cut and removed in future, and as such under the law it was compulsorily registrable. Accordingly the document Ext. 1 not being registered under the law was void and could not be enforced in the court of law. The remedy which is left to the plaintiff was by way of suit claiming compensation or for restoring the advantage which the vendor received on the basis of the said void document.
28. In this connection the following facts should be also considered. The defendant brought two money suits to realise the consideration money not paid by the plaintiff and got the decree for the same. When the question of cutting and removing the trees during the period of 1956-57 and 1958-59 came up for consideration the plaintiff's right was defeated by the enactment of the West Bengal Estates Acquisition Act. It is also seen that the contract which was entered into between the parties was void for want of registration of the deed in question. The defendant cannot take the advanatage of the same and retain the benefit out of the transaction which under the law could not be enforced. Accordingly, he is bound to compensate the plaintiff to the tune upto which he got the advantage.
29. Next question which arises for our consideration is whether under the circumstances appearing in this case, the plaintiff can realise compensation from the defendant. Mr. Palit has advanced his argument on two scores. According to him, the plaintiff is entitled to get relief both under Section 56 and under Section 65 of the Indian Contract Act. The learned trial court gave relief to the plaintiff holding that Section 56 of the Act was attracted to the facts of this case. To understand the point we want to refer to Section 56 of the Indian Contract Act which runs as follows :
'An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible or by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawful. Where one person has promised to do something which he knew, or with reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.'
30. Let us now consider whether the provisions of Section 56 of that Act are attracted to this case. Before we proceed further we may examine Section 56 of the Contract Act. A careful reading of that section shows that the following conditions are essential to be established before a person can get any relief under that section in the following circumstances:--
(a) a valid and subsisting contract between the promisor and promisee.
(b) there must be some part of the contract yet to be performed.
(c) the contract, after it is entered, becomes impossible to be performed.
31. Only in case of fulfilment of the above conditions, the question of compensation to be paid to the promisee arises. Similar question came for decision before Chatterjee J. in the case of Mahadeo Prasad Shaw v. Calcutta Dyeing Cleaning Co., : AIR1961Cal70 . His Lordship was of the view that the above conditions must be fulfilled before a person can get relief under Section 56 of the Contract Act. We most respectfully agree with the same.
32. In the instant case we have already held that the contract of sale of the trees was void due to want of registration of document Ext. 1. Accordingly, the first condition is wanting in this case. So the provision of Section 56 cannot be attracted. An attempt has been made also to establish that Ext. 1 the 'Satanama' is not a deed of sale but a deed of lease. If that view is accepted, under no circumstance Section 56 can be said to be attracted. It has been held in the case of Raja Dhrub Dev Chand v. Raja Hara-mohinder Singh, : 3SCR339 that the doctrine of frustration does not apply to a completed transfer by means of deed of lease. For the reasons stated we hold that Section 56 is not attracted in the instant case.
33. Second branch of argument of Mr. Palit is now to be considered. It has been urged that even if Section 56 be not attracted the provision of Section 65 of the Indian Contract Act will help the plaintiff to get the compensation. We have already noted that the plaintiff would not be in a position to cut and remove the trees from the jungle for two reasons. Firstly, he did not acquire title in the same for want of registration of the deed and secondly because such a contract to cut and remove the trees from the jungle became impossible to be performed due to vesting of the estate to the State of West Bengal. The plaintiff as the facts stand, cannot realise that Ext. 1 was void and particularly when on the basis of the said deed, money suits brought by the defendant were decreed. Subsequently, he realised that his position became precarious due to the non-registration of the deed and also due to vesting of the estate. The cumulative effect of nonregistration of the deed of sale, Ext. 1 and the coming into operation of the West Bengal Estates Acquisition Act is to make the contract void. We agree with the contention of Mr. Palit that the plaintiff discovered the same afterwards. This has given the plaintiff a right to claim protection as provided in Section 65 of the Contract Act. It lays down the principle of restitution of the benefit received on the basis of an agreement subsequently discovered to be void or void from the beginning. The said question was considered by the court of appeal below and the learned Judge was of the view that on the facts of this case the provision of Section 65 was attracted.
34. It is well established principle of equity that when one person pays money to another in pursuance of an agreement which is ineffective or which subsequently becomes so he under certain circumstances, can recover money which he had paid. The said rule of equity has been incorporated in several sections of the Indian Contract Act. Section 65 of the said Act is one of such sections. In the facts and on the materials of this case we hold that the provisions of Section 65 are attracted and the plaintiff is entitled to get a decree thereunder.
35. It may, however, be noted that in the court of appeal below no objection was taken by the defendant that the said relief under Section 65 was not available to the plaintiff as the same was not pleaded. Neither such objection has been taken in the grounds of appeal nor any such argument has been advanced from the bar in this court.
36. Considering the facts and circumstances of the case we hold that the court of appeal below has rightly held that the plaintiff is entitled to get the relief as provided in Section 65 of the Indian Contract Act.
37. For the reasons stated the contrary contention of Mr. Dutt fails.
38. We, therefore, agree with the finding arrived at by the court of appeal below. In the result the appeal is dismissed with costs, the judgment and decree of the court of appeal below is hereby affirmed.
39. Hearing costs of this court is assessed at five gold mohurs.
B. Bhattacharya, J.
40. I agree.