MAMMIKKUTTI Vs. FUZHAKKAL EDOM

JUDGEMENT

(1.) In Original Suit No. 59 of 1897 of which Pakru, the plaintiff's predecessor in title, was a party, an injunction was granted restraining Pakru from interfering with the forest in question. The injunction was granted upon the ground that the karar (exhibit "G") which had been granted by the present first defendant to Pakru was not binding on the Tarward. The plaintiffs now claim damages under this same agreement from the first defendant and the members of the Tarward. The finding that the karar on which the plaintiffs now sue is not binding on the parties whom it purports to bind renders the question raised in the sixth issue as to the binding effect of the karar res judicata as between the plaintiffs and the defendants other than the first defendant.

(2.) A new point was taken by Mr. Sivaswami Ayyar on behalf of the appellants which was not raised in the pleadings and was not taken in the Court of First Instance Mr. Sivaswami Ayyar argued that the legal effect of exhibit "G" was to render the trees therein referred to security for the advances which had been made by Pakru to the Tarward, and that a charge had been created on the trees in favour of the plaintiffs. So far as the wording of exhibit "G" goes, there is nothing to suggest that the parties intended that it should operate as a mortgage. Mr. Sivaswami Ayyar however relies on the word "kuttikanom" which occurs in the body of the document. No doubt one of the meanings of "kuttikanom" is "mortgage of trees," and if the instrument had been described as a kuttikanom agreement we might have been prepared to take the view that it was intended to operate as a mortgage. But the word in the document in question is used, as it seems to us, as meaning "stamp fee" and nothing more, and we do not think that the instrument operated, or was intended to operate, as a mortgage. As regards the first defendant the question is - is the plaintiffs personal remedy against him barred by limitation? It was held by the Sub-Judge that the claim was time barred, the period of limitation being 3 years under Art. 62 of the second schedule of the Indian Limitation Act. It was contended before us that Art. 116 was applicable and that the period of limitation was 6 years. The question is - is the karar exhibit "G" to be construed as containing an implied covenant for title or for quiet enjoyment of which there has been a breach? There can be no doubt that exhibit "G" is an exclusive license to cut certain trees (subject to the right of the Tarward to cut for their own necessities). Is it anything more? We have already held that it is not a mortgage. Is it a sale of immoveable property? If it is, there is, under Section 55(2) of the Transfer of Property Act, a covenant for title. If not a sale, is it a lease of immoveable property? If it is, there is under Section 108(c) of the Transfer of Property Act, a covenant for quiet enjoyment. By Section 3 of the Act "immoveable property" is defined as not including standing timber, growing crops, or grass. The contention on behalf of the appellants was that the definition only applied to standing timber which it was the intention of the parties should be immediately severed and delivered as a chattel. It was also contended that there was under exhibit "G" a conveyance of an interest in immoveable property inasmuch as a period of 6 years was allowed for the cutting of the trees and during this period the trees would derive sustenance from the soil. In Seeni Chettiar V/s. Santhanathan Chettiar I.L.R. 20 Mad. 58 an instrument somewhat similar to the karar in the present case was considered by a Pull Bench. It was held that the instrument there in question created an interest in land. The case was first heard before Shephard and Best, JJ. Shephard, J. was of opinion that the instrument was a lease. Best, J., while expressing no opinion as to this, was of opinion that it created an interest in immoveable property; but the Judges differed on the question whether the document was admissible in evidence without having been registered. On a reference to a Full Bench, Subrahmania Ayyar, J., was of opinion in that the instrument was not a lease, but that it did create an interest in immoveable property. The two other learned Judges who constituted the Court agreed that it created an interest in immoveable property.

(3.) For the reasons stated by Subrahmania Ayyar, J., in dealing with the instrument then in question, we are of opinion that the karar in the present case is not a lease.