Arumugha Vettian vs Angamuthu Nattar

Srinivasan, J.—The Plaintiff sued for declaration and possession as also for damages. He claimed to be lessee of a coconut thope from one

Muthukaruppa Pillai. The Defendants trespassed, out and removed three hundred coconuts. They contended that they were lessees of the trees in

question deriving title from one Velayudam Pillai and denied the Plaintiff�s title Both the trial and appellate Courts found in favour of the Plaintiff

on the question of title. It was established by the evidence that the property originally belonged to three brothers one of whom was Velayudham

Pillai. Velayudham Pillai sold his share to his brother Natesan Pillai and this latter person had settled the property on the two minor sons of

Velayudam Pillai. It is also not disputed that Muthukaruppa Pillai, from whom the Plaintiff claimed to derive title as lessee, was the guardian of

these two minors. It was established, therefore, that, on the date when Velayudam Pillai granted the alleged oral lease to the first Defendant, he had

no title whatsoever. There was no written document in support of this transaction. It was further found that Velayudham Pillai himself had attested

the lease deed executed by Muthukaruppa Pillai in favour of the Plaintiff. On these facts, it followed that the tenancy set up by the first Defendant

was untrue.

The trial Court accordingly granted decree in favour of the Plaintiff and awarded damages of rupees ninety as well.

Before the lower Appellate Court the Plaintiff�s title on the basis of lease granted to him by Muthukaruppa Pillai was not disputed. The

argument that was advanced at that stage was that this document styled as lease-deed is in law only licence, and that therefore, the Plaintiff is not

entitled to maintain the suit. It was also urged that the trial Court should not have awarded damages without an issue having been joined on that

head and without examining the evidence in that regard. The lower appellate Court, however, concluded that the transaction was in the nature of

lease and repelled the contention of the Appellants.

In this second appeal by the Defendants, Mr. Chandramouli, learned Counsel for the Appellants, reiterated the contention that the transaction is

not a lease but only a licence. He argued that what was granted was only the right to cut and remove coconuts, that the Plaintiff did not, therefore,

have any interest in the land or in any immovable property, and that, therefore, the transaction would not come within the scope of a lease as

defined in Section 105 of the Transfer of Property Act. This argument, though it has the appearance of some substance, does not really meet the

situation-In a decision of this Court in P. Venugopala Pillai Vs. V. Thirunavukkarasu and Others, a similar question arose. That was a case where a

certain number of coconut trees had been leased out for the purpose of tapping, and a question arose whether this transaction amounted to a lease.

While it was found by the learned Judges that there was no lease of the gardens as such, and that, in so far as the land was concerned, he could

only be a licensee and his right to enter upon the land and use it existed only so long as he had right to enjoy the toddy yield from the trees, the right

to tap the coconut trees and obtain toddy therefrom was in the nature of leasehold right. In coming to this conclusion reliance was placed upon the

principle laid down in Marshall v. Green ILR (1875) C.P.D. 35. The proposition settled by this decision was that if at the time of the contract it is

contemplated that the purchaser should derive a benefit from the further growth of the thing sold, from further vegetation and from the nutriment to

be afforded by the land, the contract is to be considered as for an interest in land; but, where the process of vegetation is over, or the parties agree

that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the

contract is for goods. The distinction between a lease and licence is clearly brought about in the above decision. If it was a case where the Plaintiff

was to remove the goods immediately upon the grant, then this right of entry upon the land would be in the nature of licence; but where he was

entitled to usufruct from the trees spread over a period of time during which period the usufruct did grow out of the soil, then the right to collect the

usufruct is in the nature of immovable property and would accordingly amount to a lease. In another decision cited by learned Counsel for the

Appellants Govindaswami v. Mdkalakshmi Ammal (1963) 2 M.L.J. 137 the question whether a lessee of that description would be a cultivating

tenant arose. This question does not directly deal with the point in issue in the present case, I am accordingly satisfied that the contention that the

Plaintiff being only licensee cannot maintain the suit in his own name, must fail.

On the question of damages, there was a specific claim put forward by the Plaintiff and the charge that the Defendants cut and removed the

coconuts was not disputed by them. On that basis the claim was rightly allowed. The appeal fails and is dismissed with costs. No leave.