SURAPUDI MUNIAPPA Vs. NOOKALA SESHAYYA GARI SUBBIAH

JUDGEMENT

(1.) This is an action by a mortgages against the mortgagor and various other persons to enforce a mortgage, dated the 26th October 1900. The only question that arises in this appeal relates to the liability of the appellants, the 12th and 13th defendants. The facts are briefly these. The mortgaged property contained a plantation of casuarina trees, said to be twenty thousand in number. The allegation against the 12th and 13th defendants is that they in concert with the mortgagor cut and removed the trees and thereby depreciated the value of the plaintiff s mortgage security by a thousand rupees. It is abundantly clear that such an act on their part might very well give rise to an action of tort. But that will not avail the plaintiff, for such cause of action is admittedly barred by limitation, and he can only succeed if he can establish that they are properly sued in an action brought to enforce the mortgage, which would fall under the longer period of limitation prescribed by Article 132 of the Limitation Act.

(2.) The learned Judge has held that the suit falls within Article 132 on the ground that the appellants appropriated a part of the plaintiff s security and converted it into money, which in their hands he is entitled to treat in equity as part of the security, or as security substituted for the original one. This is a well recognized principle and has been frequently applied in India. See for example Berhamdeo Pershad v. Tara Chand 33 C. 92; 9 C.W.N. 989. In my opinion to apply this principle to the present case would be wholly fallacious. The mortgage was a mortgage of immoveable property and not of any chattel interest, whether existing at the date of the mortgage or capable of being created subsequently. The mortgagor was entitled to the standing timber and turned it into chattels; and the only remedy against him would be an action for damages for the depreciation of the mortgage security if it can be shown that he has, in fact, by his action lowered the value of the mortgage security below the statutory minimum. See Section 66 of the Transfer of Property Act.) It may well be that if the defendants Nos. 12 and 13 had aided and abetted the mortgagor in so depreciating the security, they would be equally liable with him. No such cause of action is alleged or could be alleged in the present case. In my opinion as soon as the trees were cut and converted into timber, they ceased to be part of the mortgage security; and nonetheless so because their removal had pro tanto detracted from the value of the security.

(3.) Mr. Venkataramier put forward another argument which I have very great difficulty in following. It appears that the mortgage specifically included the casuarina trees eo nomine as part of the security, which, of course, is immaterial to his other contention as the Transfer of Property Act, Section 8, includes all things attached to the earth as passing on a transfer of immoveable property. But he says the specific mention of the casuarina trees in the mortgage has this further effect: it imports by implication a covenant by the mortgagor not to cut or sever the trees without the consent of the mortgagee. This in itself seems to me to be a very questionable proposition. But I will assume it to be correct for the purposes of the argument. He then contends that such a covenant would run with the land and attach to the land in the hands of any alienee; the land for this purpose is the trees and the covenant runs with them in the hands of the person who acquires them as timber. I am quite unable to follow this reasoning. The land is not the trees, but the land with the trees on it; and when the trees were severed, they ceased to be part of the land and became chattels, and so far as they were concerned there was no land for the covenant to run with. I confess that my imagination boggles at the conception of a covenant running with a tree trunk. I am of opinion that the only cause of action, if any, that the plaintiff ever had against the appellants was an action in tort to which the Act of Limitation would be a complete answer, and that his attempt to make them liable in an action to enforce the security is wholly misconceived. The appeal must be allowed with the plaintiff s suit dismissed as against the appellants with costs here and below. Srinivasa Aiyangar, J.