TMI Blog1948 (4) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1935. This covered the period from 1st October, 1934 to 30th September, 1937. For the next year, from 1st October, 1937 to 30th September, 1938, he executed another agreement on 15th September, 1937, Ex. P. 2. Thereafter, it is common ground that there were no further agreements executed, but the defendant continued year after year to enjoy rights similar to rights covered by Exs. P. 1 and 2 under substantially similar terms, substantially, because the rent was being raised occasionally. So far as item 2 is concerned, there is no document. But it is common ground that the terms in respect of this item were identical with those in respect of item 1. Though the learned advocate for the defendant-appellant contended that there were material alterations in the terms under which the defendant enjoyed the trees in the two gardens subsequent to 1938, we consider that substantially and in so far as they are material for the disposal of this appeal, the conditions continued to be the same as those contained in Ex. P. 1. 2. On the 5th September, 1947, plaintiffs 1 to 3 issued a notice to the defendant through their advocates informing him that he must quit the properties and stop enteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the undermentioned conditions for the sake of my enjoying for a period of three years from October 1934 to the 30th of September 1937, the produce only of the coconut trees situate in the coconut garden.... In case you lease the aforesaid trees to any other person on the expiry of the aforesaid stipulated period I have no objection whatever to such lessee entering into the garden even a month previously and commencing and doing before hand itself the acts which he may require to do. I shall have (he trees in the aforesaid garden marked and enjoy the toddy yield. I shall safeguard the said trees from damage of any kind. You shall yourself enjoy the coconuts, etc.,... from 12 trees of your choice in the garden aforesaid. I shall have no interest whatever in the produce thereof. For enjoying the usufruct of the trees leased out to me I shall pay a monthly rent of ₹ 150 (rupees one hundred and fifty) in cash, on or before the 15th of every month either to you or to your order and obtain receipt. I shall have nothing whatever to do with the leaves, the spa the and the pannadai (fibrous webs) etc., falling (from the trees) in the aforesaid garden. You shall yourself at your ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not include standing timber, growing crops or grass. But there is nothing in that Act otherwise denning immoveable property. We have therefore to refer to the definition in Section 3 (25) of the General Glauses Act which runs thus: Immovable 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. 6. Now, can the right to tap the coconut trees for toddy be said to be a benefit to arise out of land ? If it can be, then the right which the defendant obtained under Ex. P. 1 would be immoveable property. To decide this question, it is useful to refer to the leading case of Marshall v. Green (1875) L.R. 1 C.P.D. 35 for the statement of the law with regard to this subject, which is contained in the judgment of Lord Coleridge, C.J., He cites the following passage from the notes of Sir Edward Vaughan William to the case of Duppa v. Mayo; 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 nutrime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the same test, it was held by a learned Judge of the Allahabad High Court in Shiv Dayal v. Puttu Lal (1931) I.L.R. 54 All. 437 that a mortgage of a fruit-bearing tree is a mortgage of immoveable property. 8. Applying this test, there can be no doubt that the right to tap the coconut trees and obtain toddy is in the nature of immoveable property because it is a benefit which arises out of land. 9. In this view, it is unnecessary to deal with the contention of Mr. Ramachandra Aiyar for the appellant that exclusive possession was given to the defendant under Ex. P. 1 which he continued to have to the date of the suit and therefore he was in the position of a lessee. Having regard to the circumstances which we set out at the opening, it cannot be said that exclusive possession of the entire garden was conveyed to the defendant. So far as the land itself was concerned, he was only in the position of licensee, but so far as the trees in the garden were concerned, excepting 12 trees which had been reserved for the use of the owner, as regards the rest of the trees and his right to tap them for toddy, the defendant was entitled to an exclusive right. Kunhi Raman, J., after referr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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