JUDGMENT
1. The question for our decision is whether a kanomdar during the period of his occupation is entitled to remove and appropriate to himself all, or any, of the trees that he has himself planted on the land demised to him on kanom. It is found that the (plaintiff) jenmi has not proved any custom forbidding the (defendants) kanomdars to cut and appropriate such trees, nor have the kanomdars proved any custom allowing them to do so, On behalf of the plaintiff it is argued that, in the absence of custom or contract to the contrary, the general law forbids a tenant to cut trees on land held by him under a landlord, and a number of cases decided by the High Courts in other parts of India have been cited in support of this proposition. We do not, however, think it necessary to refer in detail to these oases. Many of them relate to trees not planted by the tenant, which of course stand on a footing totally different from that of those planted by the tenant himself. Others depend on the incidents of special tenures in Bengal and the North-Western Provinces and on the terms of the Tenancy Acts in those Provinces. The plaintiff also relies on the decisions of this Court Appa Rao v. Ratnam I.L.R. 13 Mad. 249, and Bhupati v. Raja Rangayya Appa Rau I.L.R. 17 Mad. 54, but those cases dealt with the rights of tenants in zamindari tracts and had no reference to kanom tenures in Malabar. So far as we are aware the question of a kanomdar’s right to cut down trees planted by himself has not been decided by this Court in any reported case. It was, however, dealt with in two unreported cases which are relied on by the plaintiff’s vakil.
2. In Ghangaran v. Chirutha Civil Revision Petition No. 445 of 1895 (unreported) a single Judge, following the decision in Nafar Chandra Pal Chowdhuri v. Ram Lal Pal I.L.R. 22 Calc. 742 at p. 750, held that, though a kanomdar might apparently cut down trees planted by himself, he might not appropriate them to his own use. The Calcutta case turned on the terms of the Bengal Tenancy Act, and it cannot, in oar opinion, be regarded as an authority applicable to kanomdars in Malabar. In the second case Unni Kutti v. Chathu Second Appeal No. 1775 of 1891 (unreported) a Bench of this Court held that, “Prima facie, the trees, &c., form part of the holding and the tenant would not ordinarily be entitled to remove them as they are not inimical to the purpose for which the holding was granted.”
3. This decision seems to proceed on the assumption that the trees are the property of the landlord and that the tenant’s only right is to receive compensations for them when he is turned out of the holding. That assumption was, however, held to be without foundation in the more recent case of Krishna Patter v. Srinivasa Patter I.L.R. 20 Mad. 124. It was there observed that “this assumption about the property being in the mortgagor even before compensation is paid by him, is not only not supported by any authority but; is directly contradicted by the fifth report,” to which reference is then made. If the property in the tree is in the kanomdar who planted it, it seems to us to follow that he must be at liberty to cut it down and appropriate it, in the absence of any custom or contract to the contrary. It seems to us that the principle applicable to the case before us is that laid down in Section 108 of the Transfer of Property Act, clauses (h) and (o). These clauses are as follows:
(h) the lessee may remove, at any time during the continuance of the lease, all things which he has attached to the earth: provided he leaves the property in the state in which he received it: (o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased or fell timber, pull down or damage buildings, work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto.
These two clauses must be read together and in conjunction with the definition of the words “attached to the earth” in Section 3 of the Act. These words are there declared to mean: “(a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.”
4. Under the Transfer of Property Act, then, a lessee may, during the continuance of the lease, remove trees which he has himself planted, and buildings which he has himself erected, provided he leaves the property in the state in which he received it. The prohibition in regard to the felling of timber and the pulling down of buildings in Clause (o) does not limit the right declared in Clause (h). It is subject to that right; that is, the lessee must not fell timber or pull down buildings unless the timber has been planted or the buildings erected by the lessee, and he must leave the property in the state in which he received it. It is argued that, as the kanom in the present case was granted in 1874, the Transfer of Property Act., which came into force in 1882, cannot apply to it, and also that Section 117 excludes agricultural leases from the operation of Section 108.
5. Both these statements are, no doubt, true, but they are beside the mark. It may be doubted whether a kanom demise can be regarded as a purely agricultural lease. It always, we believe, in the absence of a contract to the contrary, carries with it the right to erect a dwelling-house and appurtenances on the land, and to plant coconut and other trees on any land not already devoted to grain cultivation. We do not, however, wish to suggest that the Transfer of Property Act, of its own force, applies directly to the present case, but the rules in the Act to which we have referred are, we think, founded on reason and equity and may properly be adopted as a statement of the law which we ought to apply to the case before us. It must be remembered that the rights of a kanom-tenant in Malabar have always been much higher than the rights of an ordinary lessee. He is, inter alia, absolutely entitled to make improvements, and to receive compensation for them when turned out of the holding, and be is not at liberty to contract himself out of the right.
6. It has not, so far as we are aware, ever bean doubted but that he could, during the continuance of his demise, pull down or remove any building, erected by himself. Indeed, the rule “quicquid plantatur solo, solo, cedit” had been declared inapplicable to buildings even in other parts of India before the Transfer of Property Act was passed. In In the matter of the Petition of Thakoor Chander Paramanick B.L.R. Sup. Vol., p. 598 the Full Bench of the High Court of Calcutta said: “We think it clear according to the usage and customs of the country buildings and other such improvements do not by the mere accident of their attachment to the soil become the property of the owner of the soil, and we think it should be laid down as a general rule that the tenant who makes an improvement is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil.” We do not think that any valid distinction in principle can be drawn between buildings erected by a tenant and trees planted by him, and it will be observed that the Transfer of Property Act places both in the same category as regards the tenant’s right of removal. It is suggested that trees exhaust the ground, but we are not aware that there is any proof of this. Many soils would probably benefit by being opened up and aerated by the planting of trees. There might be more difficulty in restoring ground planted with trees to its original state than in restoring ground covered with buildings, but that is a matter for the tenant to deal with when he removes the trees. If he does it, as the law requires him to do, the landlord will not be injured, and it is difficult to see on what principle the tenant’s right to remove the trees could be forbidden.
7. If we consider the matter in connection with the right of the tenant to compensation for improvements, we arrive at the same conclusion. The right has always been recognised both as regards trees and buildings in Malabar. The amount of compensation and the principles on which it should be granted, have, no doubt, been the subject of much discussion and of not a few conflicting decisions. In 1887, the local Legislature passed “The Malabar Compensation for Tenants Improvements Act” (Act I of 1887). As observed by this Court in Valia Tamburati v. Parvati I.L.R. 13 Mad. 451, “the object which the Legislature had in view was to secure to the tenant the full value of his improvements.” Much difficulty was felt in deciding what was the value of an improvement effected by planting cocoanut and other fruit trees, since the value of the tree apart from the soil would be trifling, whereas if it was valued as a growing tree with reference to its capacity for producing fruit, allowance would have to be made for the fact that its continued productiveness depended on the use of the soil on which it was planted–a use to which the tenant would not be entitled after the term of his lease had expired. This difficulty, however, does not exist in the case of trees which the tenant desires to remove during the term of his tenancy. In the case of Achutan Nayar v. Narasimham Patter I.L.R. 21 Mad. 411, two of the present Bench held that under Act I of 1887 a tenant was entitled to the whole of the value of timber trees planted by himself. It seems to follow from this decision that be must be entitled to remove the trees if he prefers to do so. In the Act which has just been passed by the local legislature (Act I of 1900) in lieu of Act I of 1887 (Madras), Section 10 enacts that “when the improvement consists of timber trees or other useful trees or plants sown or planted by the tenant himself, the compensation to be awarded shall be three-fourths of the sum which the tree might reasonably be expected to realize, if sold by public auction to be cut and carried away.” It is argued from this that the Legislature recognises the landlord’s interests in such trees to the extent of one-fourth of their value, but we think the deduction is made rather on account of the compulsory nature of the law which obliges the landlord to pay for the improvement whether he wants it or not. This seems clear from the fact that Section 7 of the same Act provides that when a tenant is ejected, who has erected any building or planted any tree which the court finds is not an improvement for which he can claim compensation (owing, for instance, to its being unsuitable to the holding), but which can be removed without substantial injury to the holding, he may remove the tree or building within a time to be fixed by the Court. If then, a tenant is allowed, even after the expiry of his tenancy, to remove a tree or building which is not an improvement, it would seem to be unreasonable to forbid him to remove it during his tenancy. The law treats such tree or building as the property of the tenant, and it is not the less his property, because it is of such a kind that he can require the landlord to pay him compensation for it if it be left for the landlord’s benefit. It may well happen that a tree planted by a tenant may arrive at maturity and be fit for the market before the expiry of the kanom tenancy. In such a case it would surely be unreasonable to hold that the tenant should be forbidden to utilise his tree, but should be obliged to allow it to deteriorate until the end of his tenancy and then claim compensation for it from the landlord. Whether, then, we have regard to the views of the local Legislature with respect to tenants’ improvements in Malabar, or whether we consider the matter on the broad ground of principle, we are of opinion that the first question referred to us should be answered in the affirmative and that a kanomdar during the period of his occupation is entitled to remove and appropriate to himself any tress that he has himself planted, provided that he leaves the property substantially in the state in which he received it. In this view the second question referred to us requires no answer.
8. On the appeal again coming on for hearing after the decision of the Full Bench, the Court delivered the following
Arnold White, C.J. and Davies, J.
9. The ruling of the Full Bench is against the appellant. The second appeal must accordingly be dismissed with costs.
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