Sheikh Jan Mohammad vs Umanath Mishra And Ors. on 17 July, 1961

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Patna High Court
Sheikh Jan Mohammad vs Umanath Mishra And Ors. on 17 July, 1961
Equivalent citations: AIR 1962 Pat 440
Bench: V Ramaswami, N Untwalia


JUDGMENT

1. In the suit which is the subject-matter of this appeal the plaintiff alleged that he had taken settlement of Tari Mahal of Mauza Dighi Katihar from the defendants through the Court of Wards at a public auction. The settlement was for the year 1357 Mulki Sambat, and the amount agreed to be paid by the plaintiff to the defendants was a sum of Rs. 45O/-. The plaintiff deposited a sum of Rs. 110/- by way of part payment and the defendants thereafter obtained a certificate against the plaintiff under the Public Demands Recovery Act for the realisation of the balance amount of the lease money. The plaintiff, brought the present suit for a declaration that the proceedings taken by the Certificate Officer are null and void. The plaintiff has also asked for a declaration that in view of the fact that the defendants had not put the plaintiff in possession of all the tari trees the defendants are not entitled to recover the balance of the lease money from the plaintiff. The trial court dismissed the suit and an appeal by the plaintiff to the lower appellate court was unsuccessful. The plaintiff preferred a second appeal to the High Court, but it was dismissed by the learned Single Judge who took the view that the certificate proceedings were intra vires and the Court of Wards was entitled to obtain a certificate for the realisation of the balance of the lease money.

2. The question of law presented for determination in this case is whether the balance of the lease money was recoverable by a certificate proceeding under the provisions of the Bihar and Orissa Public Demands Recovery Act (Bihar and Orissa Act IV of 1914).

3. On behalf of the appellant learned Counsel put forward the argument that the demand made by the Court of Wards in this case does not come within the definition of “public demand” in Section 3 (6) of the Bihar and Orissa Public Demands Recovery Act, which defines the expression “public demand” as “any arrear of money mentioned or referred to in Schedule I”. Now Schedule I, Clause 8, of the Act reads as follows:

“8. In the case of property which, under the provisions of any law for the time being in force, is under the charge of, or is managed, by the Court of Wards or the Revenue-authorities on behalf of a private individual any arrear of rent, or of any demand which is recoverable as rent whether such arrear became due before or after the management devolved upon such Court or such authorities. Provided that this clause shall not apply to any arrears of rent at an enhanced rate unless such enhanced rate has been agreed to by the person liable to pay the same or has been confirmed by a competent Court.”

The argument addressed on behalf of the appellant is that the balance of the money due under the lease in this case is not recoverable as rent within the meaning of Clause 8 of Schedule I of the statute. We are unable to accept the argument of learned Counsel for the appellant as correct.

4. Section 3 of the Transfer of Property Act defines “immoveable property” as not including standing timber, growing crops, or grass. Section 105 of the Transfer of Property Act defines a lease of immoveable property and is to the following effect :

“105. A lease of immoveable 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 share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.”

The expression “immoveable property” is defined in Section 3 (26) of the General Clauses Act as follows :

“3. (26) ‘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.”

The same expression is also defined in Section 2(6) of the Registration Act as follows :

“2. (6) ‘immoveable property’ includes land, buildings hereditary allowances, rights to ways lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.”

The question in the present case is whether the transaction of settlement of the Tari Mahal by the Court of Wards with the plaintiff for tapping the toddy trees for the year 1357 Mulki Sambat is a transaction of lease of immoveable property and whether the certificate authorities have jurisdiction to take proceedings against the plaintiff for the realisation of the amount of the auction money due from the plaintiff. The principle applicable to a case of this description has been clearly set out in an English case, Marshall v. Green, (1875) 1 C. P. D. 35. In the course of his judgment in that case Lord Coleridge, C. J. stated as follows:

“I find the following statement of the law with regard to this subject, which must be taken to have received the sanction of that learned Judge, Sir Edward Vaughan Williams in the notes in the last edition of Williams’ Saunders upon the case of Duppa v. Mayo, (1669) 1 Wms Notes to Saunders 304 at p. 395 : ‘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; but 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………’ Here the contract was that the trees should be got away as soon as possible, and they were almost immediately cut down. Apart from any decisions on the subject and as a matter of common sense, it would seem obvious that a sale of twenty-two trees to be taken away immediately was not a sale of an interest in land, but merely of so much timber.”

Brett, J. said in his judgment :

‘If the thing, not being fructus industrialis, is to be delivered immediately, whether the seller is to deliver it or the buyer is to enter and take it himself, then the buyer is to derive no benefit from the land, and consequently the contract is not for an interest in the land, but relates solely to the thing sold itself. Here the trees were timber-trees, and the purchaser was to take them immediately; therefore, applying the test last mentioned, the contract was not within the 4th section.”

Grove, J. said :

“It seems to me that, in determining the question whether there was a contract for an interest in land, we must look to what the parties intended to contract for. In all the cases this has been made the test. In the case of Smith v. Surman, (1829) 9 B and C 561 it was argued by Rullell, Serjt., that ‘a sale of crops, or trees, or other matters existing in a growing state in the land may or may not be an interest in land according to the nature of the agreement between the parties and the rights which such an agreement may give;’ and that view was adopted by the court in giving judgment…… Here the trees were to be cut as soon as possible, but even assuming that they were not to be cut for a month, I think that the test would be whether the parties really looked to their deriving benefit from the land, or merely intended that the land should be in the nature of a warehouse for the trees during that period. Here the parties clearly never contemplated that the purchaser should have anything in the nature of an interest in the land; he was only to have so much timber, which happened to be affixed to the land at the time, but was to be removed as soon as possible, and was to derive no benefit from the soil.”

5. Applying the test laid down in this leading case we are of opinion that the right to tap the palm trees taken by the plaintiff in settlement from the Court of Wards is a right of immoveable property because it is a benefit arising out of land. We also consider that the right of tapping the palm trees in this case is a benefit arising out of land within the meaning of the statutory definition given in Section 3 (26) of the General Clauses Act and also in Section 2 (6), of the Indian Registration Act. It, therefore, follows that a lease of such a right is a lease of immoveable property within the meaning of Section 105 of the Transfer of Property Act and, therefore, the money paid by the plaintiff as consideration for the settlement is “rent” within the meaning of Section 105 of the Transfer of Property Act. We, therefore, hold that the case falls within the definition of “public demand” given in Section 3 (6) of the Bihar and Orissa Public Demands Recovery Act (Bihar and Orissa Act IV of 1914), read with Clause 8 of Schedule I of the same Act.

6. The view we have expressed is borne out by the decision of Ross, J. in Ashloke Singh v. Bodha Ganderi, AIR 1926 Pat 125 and also a decision of a Division Bench of this High Court in Bodha Ganderi v. Ashloke Singh, AIR 1927 Pat 1, where it was held that a gift of a mango tree which was not intended to be used as timber but was intended and was not in tact used for the purpose of enjoying the fruits from it must be regarded as a gift of immoveable property and, therefore, required registration. The same principle has been expressed by a Division Bench of the Madras High Court in Venugopala Pillai v. Thirunavukkarasu, AIR 1949 Mad 148 where it was held that a lease of the right to tap cocoanut trees was a lease of immoveable property within the meaning of Section 105 of the Transfer of Property Act, because it was a lease of benefit arising out of land.

On behalf of the appellant reference was made to the decision of this High Court in Kameshwar Singh v. Mahabir Pasi, ILR 15 Pat 626 : (AIR 1936 Pat 402 and 403), but the decision in that case is not in point. It was held by Agarwala and Rowland, JJ. in that case that a suit to realise the money due on account of settlement of date and toddy palm trees was not a suit for rent within the meaning of the Bihar Tenancy Act, but a suit governed by Article no of the Limitation Act. We do not wish to express any opinion in this case whether the decision of the learned Judges in ILR 15 Pat 626 : (AIR 1936 Pat 402 and 403) is correct or otherwise. But it is sufficient to say that the principle laid down in that case has no application to the present case for the learned Judges in that case only decided that a suit to realise money due on account of settlement of date and toddy palm trees does not fall within the ambit of the Bihar Tenancy Act. The question did not arise in that case whether the money due on account of the settlement was “rent” within the meaning of the Transfer of Property Act or within the meaning of the Public Demands Recovery Act. It is manifest that the precise question presented for our determination in this case did not arise in ILR 15 Pat 626 : (AIR 1936 Pat 402 and 403) and the principle laid down in that case has, therefore, no relevance in the present case.

7. For these reasons we hold that the decision of the learned Single Judge in this case is right and there is no merit in this appeal under the Letters Patent which is accordingly dismissed with costs.

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