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TMI Blog1937 (10) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly having let the time for appealing pass, it would be inequitable now to treat him as a person against whom a final decree has been passed. We think it unfortunate that he has got before the Court as an appellant by transposition rather than by appealing because on the argument there are wide differences between his position and that of defendant 1 firm. These differences however are greatly reduced as a consequence of the pleadings (which raise quite a different case from that argued before us) and any difficulty that is caused by the fact that defendant 2 is before us by transposition can be avoided by keeping defendant 2 to his representation, on the strength of which he was transposed, that his grounds of appeal are the same as those taken by defendant 1 firm. As their Lordships of the Privy Council observed in Hodges v. Delhi and London Bank Ltd., (1901) 23 All 137=27 IA 168=7 Bar 767 (PC) at p. 142, as matters turn out the misjoinder in appeal will not cause any embarrassment. 2. It is very necessary in this case, the arguments in which have ranged over a wide area, to bear in mind what the nature of the relief sought is. That can best be expressed after certain f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: Defendant 1 firm had, for many years, during most of which plaintiff was associated with defendant 1 firm in business connected with these leaves, been gathering leaves from defendant 2's trees under exclusive licence of the nature of a profit a prendre. Those licences were not registered at the time when plaintiff got an exclusive licence from defendant 2 who four days later gave an exclusive licence over the same area to defendant 1 firm. At the time of the grant to plaintiff, defendant 1 firm was entitled as against defendant 2 to gather leaves under an unregistered licence under which defendant 1 firm had acted and under which the firm had paid substantial sums. If S. 53-A, T.P. Act, applies, he was accordingly entitled to act under that licence against defendant 2 or against any person (including the plaintiff) claiming under defendant 2. Those are the broad facts which have to be borne in mind in considering the relief sought in this suit. The pleadings and so-called pleadings amount to 44 typewritten pages in the record. The relief sought is to be found in para. 14 of the plaint which is as follows: (1) That it be declared that the plaintiff is the sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant 1 firm's written statement, para. 13, it is alleged that the joinder of causes of action of distinct and different nature is bad in law . An issue is taken on this plea of misjoinder: see Issue 2(b). This issue is dealt with in para. 10 of the judgment where it is stated: Plaintiff alleges that both the defendants are joint tort feasors. They combined in depriving the plaintiff of his right to exclusive collection of tendu leaves.... 6. It will be seen if that paragraph in the judgment is referred to, that mention is made of an agreement come to in a criminal case (Exs. P.4 and P.9). Ex. P-4 is to the effect that defendant 1 firm agrees to pay to plaintiff the costs of the leaves so collected in case a Civil Court decides that defendant 1 firm has no right to take the leaves. Ex. P-9 is to the effect that the plaintiff will pay a sum there mentioned if the Civil Court decides he has no right to collect leaves. Neither statement imposes any obligation on defendant 2 to pay anything. Defendant 2 presumably was not concerned in those criminal proceedings. No application for amendment has been made and we are not prepared to amend suo motu though it would seem to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered. We are accordingly of the opinion that the plaintiff's lease was properly registered and could not be cancelled by defendant 2. That lease preceded by four days the registered lease given to defendant 1 firm by defendant 2 but it was given at a time when an unregistered lease was in existence and under which defendant 1 firm was operating. The next question that arises is: Did these documents require registration? It is urged that these leases do not require registration as the subject-matter falls within the definition of moveable property contained in S. 2(9), Registration Act, which is as follows: Moveable property includes standing timber, growing crops and glass, fruit upon and juice in trees, and property of every other description, except immoveable property. 8. On the other hand it is said that the subject-matter is immovable property within the definition contained in the General Clauses Act, S. 3(25) which is as follows: Immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth, that it is also within the definition of immovabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bije Bahadur v. Ganoolal, (1892) 5 CPLR 6 ) then a transfer of a growing crop, i. e. a crop growing at the time of the transfer might he a transfer of moveable property within the definition of moveable property contained in the Registration Act. 9. Pollock J.'s view was that as the tree was growing at that time, the leaves were, or might be, growing and therefore there was nothing to show that the agreement in question was concerned with a crop not growing at the time. We prefer in this case however to view the matter somewhat differently. These leases are not leases of leaves or crops. That is, the subject-matter is not the sale or transfer of leaves or crops. The subject-matter is the transfer of a right. We have therefore to consider not what leaves or crops are, but what the right is. To show the difference we observe that when a lease is granted of a house, there is no doubt that the house is immovable property and there is no doubt that the right granted is not immovable property. A lease of immovable property is, by definition, a transfer of a right to enjoy such property: see S. 105, T.P. Act. A lease accordingly is provided for not by S. 17(1)(b), Registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adams, (1901) 2 Ch 598= 70 LJ Ch 783=85 LT 195=50 WB 37=17 TLR 763] are examples of profits. The right to shoot pheasants is an interest in land not because pheasants are land, but because, being wild animals, while upon the land they are deemed to be owned by the owner of that land who, as such may give the right to come and take them. We are accordingly of the opinion that these leases amounted to grants of immovable property within the definition contained in the General Clauses Act, S. 3(25) and S. 2(6), Registration Act, as relating to benefits to arise out of land and as not being excluded by S. 3, T.P. Act or S. 2(9), Registration Act. These (grants accordingly fall within S. 17(1)(b), Registration Act, and require registration. 12. We come to that conclusion independently of authority. The same conclusion was also reached in Seeni Chettiar v. Santhartathan Chettiar, (1897) 20 Mad 58=6 MLJ 281 (FB). That case however rather turns on the fact that it amounted to a sale of inter alia growing timber. It is however useful in this connexion as containing at p. 64 an observation by Subramania Ayyar J. showing why such a grant is not a lease. The fact that there the instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of moveable property in the Transfer of Property Act). The next point raises the much debated question whether S. 53-A is applicable. Here the suit was instituted after the 1st April 1930. To such a suit, according to the recent Bench decision of this High Court, Hari Prasad v. Hanumant Rao, AIR (1987) 24 Nag 74=170 I0 354=ILR (1936) Nag 115 (where the cases were reviewed), S. 53A applies unless the plaintiff had no notice of either the lease to defendant 1 firm or of the part performance thereof. Before we examine the question of notice, it is desirable to put on one side the question raised whether S. 53-A relates to leases at all. In view of the fact that we are not dealing with leases but with licenses coupled with a grant it is not necessary to fully consider this point, but we observe that in a very considerable number of cases, S. 53-A has been applied to leases and we feel we should not examine this novel point in a case in which it does not arise. For cases where S. 53-A has been applied to leases, see J.G. Wakefield v. Sayeeda Khatun, AIR (1937) 24 Pat 36=166 IC 797=15 Pat 786=17 PLT 963, Ashutosh v. Nalinakshya, AIR (1937) 24 Cal 467=170 IC 267=64 CLJ 558, Benarsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that as regards all the leaves collected after the plaintiff's lease was granted, viz. 24th April 1931 (it was registered about six weeks later), the leaves, as collected by defendant 1 firm, became the property of plaintiff. If this be so, then defendant 1 firm, it is said, have converted the property of plaintiff and are liable in damages; defendant 2 has aided and abetted and is therefore a joint tortfeasor and is also liable in damages and the damage is the market value of the leaves without any allowance for cost of collection. 16. That is how the case is framed according to the pleadings. According to the argument the obvious difficulty in the way of such a case is glozed over by treating the plaintiff as entitled to damages because he has a 'lease' which has priority over defendant 1 firm's registered 'lease'. That defendant 1 firm's registered 'lease', it is said, eliminates the previous unregistered 'lease' because the grant of the registered 'lease', during an unexpired portion of the term created by the unregistered 'lease', operated to effect a surrender of the unregistered 'lease' which ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 1 firm when operating under that unregistered lease were not tort-feasors or trespassers. They were exercising rights they had paid for. That is the position that existed up to the end of the unregistered 'lease'. What is the position thereafter? 18. The position is not easy. To understand the difficulty certain dates are necessary. At the date of the grant to plaintiff (28th April 1931) defendant 1 firm had an unregistered licence under which they had operated and in respect of which they had paid substantial sums. That 'lease' expired on 31st March 1936. On 28th April 1931 a registered 'lease' was given to defendant 1 firm for the period 1st April 1931 to 31st March 1941. The unregistered 'lease' contained a term which we have mentioned above. The plaintiff's 'lease' was for the period 24th April 1931 to 23rd April 1939. Though, in our opinion, it was a breach of contract (with defendant 1 firm) on the part of the zamindar to grant plaintiff a 'lease' before the expiry of defendant 1 firm's 'lease', viz. 31st March 1936, the effect of granting it was to confer on plaintiff a right in the nature of an exclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear by the following illustration. A grants to B exclusive license to gather and remove leaves for one year from 1st January 1936 to 31st December 1936 inclusive. On 1st June 1936 A grants to C in respect of the same area exclusive license to gather and remove the same leaves for one year from 1st June 1936 to 31st May 1937. On 1st July 1936 A grants to B same license over same area for the period 1st July 1936 to 30th June 1937. In our view after the first grant, A is divested of the power to make any such grant to G for the period 1st June 1936 to 31st December 1936. But A can make a grant to O in 1936 to commence on 1st January 1937. He has the power to make such a grant. B, seeing that he has only got half of what he thought he was getting, could, of course, repudiate the grant or he could affirm and take under it for the period 1st January 1937 to 31st May 1937 claiming from A compensation for the loss of half of what was granted to him. A having divested himself of his grant to C of any power to grant an exclusive licence to anybody until after 31st May 1937, could grant a license on 1st July 1936 to B but not for any period before 31st May 1937. It would be inoperative un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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