VARGHESE POULOSE Vs. K I MATHEW

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants and the plaintiff, the contesting 1st respondent.

(2.) Under the provisions of Ex. P 1 the right created appears to be an interest in immovable property, in the sense that a liability or burden is imposed on the properties covered by schedules B and C, in favour of the property covered by schedule A, out of which a portion has been utilised for cutting the channel. The intention of the parties appears to be that the lands covered by schedules B and C should have the benefit of the water flowing through the channel for cultivation thereof; and in consideration for that the land covered by schedule A was to have the right of catching prawns as indicated in Ex. P 1. In the face of these recitals it is idle to contend that the right created is not an interest in immovable property and it will not pass with the property. As I have already indicated, it is more in the nature of an easement created by agreement between the parties entailing the creation of a burden on the B and C schedule properties in favour of the A schedule property.

(3.) The learned counsel of the appellants draws my attention to the decision of the Madras High Court in P. Venugopala Pillai v. Thirunavakkarasu ( AIR 1949 Mad. 148 ) and in particular to the passage quoted therein from the notes of Sir Edward Vaugham Williams to the case of Duppa v. Mayo to the effect that if the standing trees are to get further nutriment from the soil before they are cut and removed the trees are immovable property; whereas, if the parties intended the cutting and removing of the trees immediately as timber without allowing the trees to draw any further nutriment from the soil, they are movable property. I may straightaway clarify the position that this decision in this form may not apply to the present case, because the question herein is not whether prawns are movable or immovable property. Even if the question is that, I am still of opinion that even this test may apply. Whatever might be the case regarding deep sea fish which live on some marine growth completely unconnected with the bed of the sea fathoms below, it cannot be said that prawns which live in shallow waters, a few feet deep, do not get any nutriment or sustenance from the soil underneath. It is clear that in this case the prawns in the water in the properties in schedules B & C must be deriving some nutriment from the soil; and therefore, even the test that is mentioned above may apply.