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Madras High Court
Ittirarichan Unni And Anr. vs Kunjunni on 15 October, 1897
Equivalent citations: (1898) ILR 21 Mad 144
Bench: A J Collins, Shephard


JUDGMENT

1. This is an appeal by the stani and his lessee against a decree obtained by the plaintiff as successor to the stanom. The effect of the decree is to restrain both the defendants absolutely from cutting the timber in certain forests, and to make the defendants liable in damages to the extent of Rs. 400, a peculiar direction being made as to the manner in which the money shall be treated. In the District Munsif’s Court the plaintiff’s suit had been dismissed on the ground that the lease was one which the stani was competent to give. This decree is reversed by the District Judge and the decree as above-mentioned is framed on the strength of certain English cases cited by the Judge, in which the position of a tenant for life impeachable for waste was in question. There is, as has often been observed, great danger in applying English decisions on the law of real property to cases which arise in this country. To make the decision cited applicable, it must be assumed that the English law of waste has been adopted by the Courts of British India, that the defendant stani was a tenant for life, and further that he was a tenant for life impeachable for waste. No one of these assumptions can safely be made.

2. The position and powers of a stani have been often discussed, He is not a mere tenant for life, and he is certainly not impeachable for waste in the sense in which that expression is used in. the English books, If it were true that a stani was in that position it would follow that he could not even cut down trees winch were fit to cut or in a state of decay, without accounting for the proceeds which would be treated as capital see cases cited in notes to Garth v. Cotton 1 White & Tudor 697.

3. The decision of the Judge, founded as it is on considerations wholly foreign to the case, cannot be regarded as satisfactory. In any view the injunction in the terms in which it is granted could not be maintained, because it goes to the length of preventing the stani from making any use whatever of the timber. As, however, the stani has died it is necessary to pursue the question further except so far as it affects the other defendant. He is viewed by the District Judge as a simple wrong-doer and, if it were true that the stani was a tenant for life impeachable for waste, this view might be correct, But the stani has, in truth, much larger powers than are attributed to him by the Judge. He is the person who represents the estate for the time being and enjoys much the same position as was assigned to the holder of an impartible zamindari before the current of decisions was turned in 1897 [see Mana Vikraman v. Sundaran Pattar I.L.R. 4 Mad. 148. It is certainly open to a stani to make a lease of forest land for a term of years and the mere fact that the alienation is intended to hold good after his life-time will not invalidate it. Similarly it is competent to a stani to cut down forest trees for his own purposes, though by the manner and extent of his operations he may render himself liable to an action at the suit of the probable successor. It depends upon the circumstances of the case whether an alienation made by a stani or other conduct on his part in the management of his estate is of a character to render him liable to an action. In the present case, in order to make the lessee liable in damages, it would at least have to be proved that the acts done by him, would, if done by the stani immediately, have rendered him liable as for destruction of the inheritance. By the mere cutting of trees that being the ordinary and indeed the only way of enjoying the estate no injury is done of which, as between the stani and his successor, the latter has any right to complain. Considering that, as regards the lessee’s liability, the finding of the Judge is vitiated by the erroneous point of view which he adopted and taking into account the extent of the forest and the comparatively small amount of timber cut, we hold that, on the facts stated, the decree for damages against him is not justified. As it stands, the decree relating to the damages is moreover unworkable. The District Judge, in adopting it from the prayer of a bill, has failed to notice that in order to make the decree complete directions would be required as to the persons to whom the interest on the sum invested or the sum itself should ultimately be paid.

4. We must set aside the decree against the surviving defendant and restore as regards him the decree of the District Munsif. The respondent must pay the second defendant’s costs in this and in the lower Appellate Court.


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