TMI Blog1948 (4) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... 22nd December 1941, he entered into an unregistered agreement with Lala Romesh Chand Goel, proprietor of the firm Lala Janki Sarau Kailash Chandra, who were the plaintiffs to this action. We shall have occasion to quote the relevant portions of this agreement. Briefly it may be mentioned that it gave the plaintiffs a right to cut and remove certain timber trees of certain girth by, 21st December 1948, that is during a period of seven years, for a sum of ₹ 25,000 which was to be paid in certain instalments, the last instalment being payable on 30th June 1943. After the agreement was entered into, the plaintiffs started cutting and removing the trees. 3. Raja Gajendra Shah had applied in the district of Moradabad under the Encumbered Estates Act in the year 1936 and the Special Judge had under Section 19 of the Act transmitted the decree to the Collector of Moradabad for liquidation of the debts. When the Collector came to know that the trees were being cut by the plaintiffs he intervened. On that an enquiry was made and the Collector agreed to recognise the plaintiffs' rights under the agreement provided Raja Gajendra Shah deposited the money that he had realised under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal has arisen for injunction and damages, their claim being based on ownership. It was alleged in the plaint that under the agreement dated 22nd December 1941, the plaintiffs had become the owners of the timber trees which they had the right to cut and remove and the defendant could not get any title to the same by his subsequent purchase. It was further alleged that the defendant had made the purchase with notice of the agreement and the plaintiffs' rights under the agreement could, therefore, be enforced against the defendant. 7. The first point for decision, therefore, is whether the title to the trees passed to the plaintiffs under the agreement dated 22nd December 1941. For that purpose it would be necessary to consider the terms of the agreement itself. We may mention that the agreement has been most inartistically drafted. It is written in the Hindi language and probably by one of the Raja's employees who himself made the draft. Only three paragraphs are relevant for our purposes: (1) That with the exception of 80 Samal marked trees in villages Baipuri, Makhonia, Garhi, Malikanth pur Baheri and Inampur Fatehabad and with the exception of all the mango tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained. Section 19, however, provides: (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. 9. Reading Sections 18 and 19, together it would appear that the property in unascertained goods cannot pass to the buyer until the goods are ascertained, while the title in the ascertained goods may pass at such time as the parties intend it to pass. In the absence of a contract to the contrary, the rules when the title in ascertained goods would be deemed to have been intended to be transferred arrest out in Sections 20 to 24. Section 20 deals with the transfer of title in specific goods in a deliverable state. Section 21 relates to a transfer of specific goods which have to be put into a deliverable state by the seller. Under Section 22, the specific goods contracted to be sold are in a deliverable state, but the seller has to do something in order to ascertain the price. Section 24 deals with the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es may have attained the minimum girth required for their felling at the time when the defendant purchased the villages and as these had fulfilled the description mentioned in the agreement, the title to those trees had certainly passed to the plaintiffs. The answer to his argument is that though it may have been possible to ascertain which trees fulfilled the requirements of the agreement and were therefore ascertainable, the ascertainment had not been made and therefore, it could not be said that it was a transfer of ascertained goods. Another answer may be that no attempt was made to prove that there were any trees of the required girth-and if there were any, no attempt had been made to identify the same and it is, therefore, not possible to issue any injunction with respect to such trees. 13. The other argument is that all the trees except the 80 Samal marked trees and the mango trees were sold to the plaintiffs and the plaintiffs bad, therefore, become the owners thereof, the property having vested in the plaintiffs. The plaintiffs under subsequent paras, 4, 5 and 7 of the agreement could only cut the trees after certain maturity, their right to fell them being restricted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence on behalf of the defendant and he has stated that he had no knowledge of the agreement with the plaintiffs and that he sold the entire property to the defendant without any exception whatsoever. Thakur Dan Singh Bisht, the defendant, has come into the witness-box and he has specifically denied having had any knowledge of the plaintiffs' agreement. Neither of these two witnesses were asked any question in cross-examination to show that they had-knowledge of the agreement. The defendant was not even asked whether when his man went to inspect the property that he was purchasing he saw any trees being cut and whether he made any such report. There is complete lack of suggestion in the cross-examination that the evidence on this point that was being given by Madan Mohan or by Dan Singh was not reliable. 17. A letter Ex. 8 dated 7-1-1944, has been filed by the plaintiffs which is addressed to the Manager of the Court of Wards, Shahjahanpur, in which it is said that a copy of the agreement was being supplied. Curiously enough when Madan Mohan, the Special Manager, said that he had no knowledge of the agreement his attention was not drawn to this letter, nor was he asked a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to see why it was necessary for the defendant to ascertain the amount of the debts. The reply of the Collector of Moradabad to the application of the Special Manager for permission to sell to the effect that he would have no objection to the sale provided the price fetched was enough to pay off all the debts would make it necessary for the Special Manager to find out the amount of the liability. He may have done that by making enquiries as regards the total amount of the debts due, but it was not necessary that any enquiry should be made as to how the amount happened to be due from the estate of 'the deceased Raja. Madan Mohan has stated that the debts were less than ₹ 2,35,000. He fixed the price at that figure as he wanted not only that the debts should be paid off but also that the expenses of the Court of Wards should be met out of the sale price. 21. The last point about possession has also no force. There is no evidence that the plaintiffs were, at the time when the purchase was made, cutting any trees; nor would it amount to possession of the forest. We are not satisfied that the burden of proving actual or constructive notice which lay on the plaintiffs was sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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