BAIJNATH Vs. RAMADHAR

JUDGEMENT

(1.) This case has been referred to a larger bench on account of a conflict among decisions on the question whether standing sisham and nim trees are standing timber within the meaning of Section 2(6) of the Registration Act.

(2.) One Shanker Bux Singh was the owner of plots of land situated by the side of a District Board road. Sisham and nim trees stood on the plots of land. Shankar Bux Singh sold out of them 25 Sisham and 2 nim trees to the appellant. (Only the trees were sold and not the land on which they stood.) In the sale deed the vendor simply stated that he had sold the trees for Rs. 100/- to the appellant; nothing was said about the trees being cut or allowed to remain standing on the land, or about any right granted to the appellant to tend them, and the appellant was not required to remove them within certain tune. The District Board, claiming to be the owner of the trees --because they stood by the road side -- sold one of the sisam trees to the respondents and they cut it away on 10-1-1955. All the other trees purchased: by the appellant remain standing. The appellant thereupon instituted the suit giving rise to this appeal, claiming damages of Rs. 100/-. To prove his title over the tree, he produced the sale deed. The sale deed had not been registered and the respondents objected to its being received in evidence. If the trees were immoveable property, the sale deed ought to have been registered and would not be receivable in evidence when it was not registered. If, on the other hand, they were move-able property, the sale deed need not have been registered and would be receivable in evidence. 'Immoveable Property' is defined in Section 2 (6) of the Registration Act to include land, buildings, benefits to arise out of land and things attached to the earth or permanntly fastened to anything which is attached to the earth, 'but not standing timber, growing crops nor grass'. If the trees are standing timber, they would not be immoveable property, and the question before us is whether they are standing timber or not.

(3.) Trees are generally divisible into two classes, (i) fruit bearing trees and (2) timber trees. Sisham and nim trees are essentially timber trees; they are grown not for the sake of fruits, but for the sake of their wood which is used as timber. A fruit-bearing tree is meant to remain standing, because it is only when it is standing that it can bear fruits. A timber tree, on the other hand, is meant to be cut down; it is only after it is cut down that its trunk etc. can be used as timber. A standing tree can never be used for timber and a felled tree can never be used for producing fruits. What is meant by standing timber in Section 2(6) is 'a standing timber tree'. It is only when a tree is standing that the question would arise whether it is moveable or immoveable property; no such question would ever arise in respect of a tree that has been cut down or fallen down. The words following 'but not' in the definition of immoveable property take out of the definition what otherwise would have been within it. Only standing trees would be within the meaning of the definition, because they are things attached to the earth. Trees that have been felled or cut down are no longer things attached to the earth and, therefore, would not be within the meaning of immoveable property even without the clause "but not standing timber, growing crops or grass". While a tree, in order to come within the definition of immoveable property, must be a standing tree, every standing tree is not immoveable property; the Legislature has expressly excepted from the definition standing timber trees, growing crops and grass. The reason why they have been excepted from the definition is that, though they are standing for the time being, they are meant not to remain standing, that they can be brought to use only after they have been cut and that they are meant to be cut sooner or later. It is on account of their nature or character that they have been taken out of the definition of immoveable property. The reason for taking these things, though attached to the earth, out of the definition of immoveable property being their nature, it is reasonable to consider the nature of a thing when a question arises whether it is standing timber, growing crop or grass. Though a timber tree must be felled or cut down before it can be used as timber, it would be wrong to say that while it is standing it is not a timber tree. A standing timber tree must be not only a timber tree but also standing; it would be illogical to say that a timber tree is not a timber tree, because it is standing. Similarly, a timber tree does not cease to be a timber tree, because its owner has no present intention of cutting or felling it. Whether a tree is a timber tree or not does not depend upon whether there exists an intention in some body to cut it or not. It cannot be said that a timber tree comes into existence only when an intention to cut it sooner or later is formed and that there is no timber tree in existence prior to the formation of such an intention. That a timber tree must be cut down in order that it fulfils its object is no justification for saying that a timber tree is a tree in respect of which there exists an intention that it should be cut down. A tree is either a timber tree or a fruit tree; a tree that is not a fruit tree must be a timber tree and a tree cannot be a fruit tree so long as there is no intention to cut it down and cannot become a timber tree as soon as such an intention is formed. I have no doubt that whether a tree is a timber tree or not depends upon its nature and the use to which it is generally put and not upon whether there is a present intention in the mind of its owner of cutting it sooner or later. In other words, the test is an objective test and not a subjective test.