KANJI AND MOOLJI BROTHERS Vs. TSHANMUGAM PILLAI

JUDGEMENT

(1.) The defendants are the appellants. They were sued for damages for breach of a covenant to level plaintiff's land after removing earth and sand therefrom. The plaint alleged an agreement, dated 25 June, 1927. The defendants in their written statement denied this agreement. But they alleged an unregistered agreement in writing, dated 4 August, 1927, under which, and in consideration of a rent of Rs. 500, they took on lease the suit lands subject to the covenants contained in the agreement; and they further pleaded that "all conditions and covenants binding on the part of the defendants were duly performed and that the lands were properly levelled".

(2.) The learned trial Judge has found that the written agreement, dated 4 August, 1927, contained the contract between the parties. Having so found, the learned Judge, rightly in our judgment, held that the agreement was for the transfer of an interest in immoveable property. The terms of the agreement were that in payment of compensation (in point of fact a sum of Rs. 500) the defendants were given liberty to remove sand and earth from the plaintiff's plots of land to depths varying from 2 ft. to 8 ft. and were to level the plots after removal. There was also the stipulation that the land was to be vacated on or before 1 October, 1928. Although the parties are described in the document as lessor and lessee, the agreement was not, in our view, one of lease. Further, the agreement gave more than a mere licence, and it was not an agreement for the sale of earth and sand as chattels. In our view it was an agreement for the sale of an interest in immoveable property. A number of cases, which are not all easily reconcilable, have been cited to us on the question as to what constitutes an agreement for the transfer of an interest in land. In Marshall v, Green L.R. (1875) 1 C.P.D. 35 a sale of growing timber, to be taken away as soon as possible, was held not to be a contract for the sale of an interest in land. Brett, J., in that case laid down the following test: If they (the things sold) are not fructus industriales, then the question seems to be whether it can be gathered from the contract that they are intended to remain in the land for the advantage of the purchaser, and are to derive benefit from so remaining; then part of the subject-matter of the contract is the interest in land, and the case is within the section (i.e., Section 4 of the Statute of Frauds). But if the thing, not being fructus industrialis, is to be delivered immediately. then the buyer is to derive no benefit from the land, and consequently the contract is not for an interest in the land, but relates solely to the thing sold itself. Here the trees were timber trees, and the purchaser was to take them immediately; therefore, applying the test last mentioned, the contract was not within the 4 section.

(3.) It was obviously with this authority before him that Collins, C.J., in the Full Bench case of this Court, Seeni Chettiar V/s. Santhanathan Chettiar (1986) I.L.R 20 M. 58 : M.L.J. 281 (F.B.) stated that it had long been settled that an agreement for the sale of growing timber, not made with a view to immediate severance from the soil and delivery as chattels, was a contract for the sale of an interest in land. Marshall V/s. Green L.R. (1875) 1 C.P.D. 35 was discussed and criticised by Chitty, J., in Lavery V/s. Pursell (1888) 39 Ch. D. 508 and the learned Judge points out that the decision turned on this, - that the Court considered that as the timber was to be cut down as soon as possible, and was immediately cut down, the thing sold was a chattel. In Lavery V/s. Pursell (1888) 39 Ch. D. 508 the contract was for the sale of a house as building materials, and it was held to be a sale of an interest in land; and Chitty, J., finds his conclusion thus: I think that the contract does purport to confer on the purchaser the right to be there for the purpose of taking down and removing the materials, and does give him either a complete or a qualified possession; but still a possession of the soil itself--of the land, tenements and hereditaments; certainly of the whole of the house. That being so, if the question was free from authority, I should have thought that this case fell within the statute.