George Jacob v. M.S. Viswambharan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945** **AS NO. 460 OF 1999** **AGAINST THE DECREE AND JUDGMENT DATED 30.01.1999 IN OS** **NO.113 OF 1993 OF SUB COURT, THODUPUZHA** **APPELLANT/PLAINTIFF:** **GEORGE JACOB AGED 34 YEARS, S/O.JACOB, THEKKEMURIYIL HOUSE, ANAKKALLU KARA, ANAKKALLU PO., KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK. BY ADV SRI.T.I.ABDUL SALAM ADV.C.K. VIDYASAGAR** ## **RESPONDENTS/DEFENDANTS:** - **1 M.S.VISWAMBHARAN (DIED) AGED ABOUT 55 YEARS, S/O.SANKARAN,** - **MATHANATHU HOUSE, BAPUJI NAGAR, PONGUMMOOD, TRIVANDRUM.** - **2 S.BALAN MANAGER, MATHANATHU TEA ESTATE, CHELICKAL, ELAPPALLY PO., MOOLAMATTOM.** - **3 ADDL.R3 - K.JANAKI SANKARAN(DIED) METHANATHU HOUSE, BAPUJI NAGAR, PONGUMMOOD, THIRUVANANTHAPURAM.** - **4 ADDL.R4 – B.RAJI VISWABHARAN, W/O.VISWAMBHARAN, METHANATHU HOUSE, BAPUJI NAGAR, PONGUMMOOD, THIRUVANANTHAPURAM.** - **5 ADDL.R5 – M.V.GANESH,** - **S/O.VISWABHARAN, METHANATHU HOUSE, BAPUJI NAGAR, PONGUMMOOD, THIRUVANANTHAPURAM.** - **6 ADDL.R6 - RAKHI D/O.VISWABHARAN, METHANATHU HOUSE, BAPUJI NAGAR, PONGUMMOOD, THIRUVANANTHAPURAM.** A.S.Nos.460 and 352 of 1999 -: 2 :- - **7 ADDL.R7 - REKHA D/O.VISWABHARAN, METHANATHU HOUSE, BAPUJI NAGAR, PONGUMMOOD, THIRUVANANTHAPURAM. LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 7 VIDE ORDER DATED 21.10.15 IN CMP 4149/00** - **8 ADDL.R8 - LEELA SWAMINATHAN, D/O JANAKI SANKARAN, JIA, JASMIN, ROYAL GARDENS, OPP. MILMA PARLOUR, TRIPUNITHURA, ERNAKULAM, PIN – 682 301.** - **9 ADDL.R9 - SUSHEELA D/O JANAKI SANKARAN, TAGORE GARDENS, KUMARAPURAM, TRIVANDRUM, PIN – 695 011. LEGAL HEIRS OF DECEASED R3 ARE IMPLEADED AS ADDITIONAL R8 AND R9 VIDE ORDER DATED 02.08.2023 IN I.A.NO.1 OF 2023. BY ADVS. AJEESH K.SASI SRI.MATHEW JOHN K SRI.BABY THOMAS** **THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 12.03.2024, ALONG WITH AS.352/1999, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** A.S.Nos.460 and 352 of 1999 -: 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA,** ## **1945** **AS NO. 352 OF 1999** **AGAINST THE DECREE AND JUDGMENT DATED 30.01.1999 IN OS** **NO.113 OF 1993 OF SUB COURT, THODUPUZHA** ## **APPELLANTS/DEFENDANTS:** - **1 M.S.VISWAMBARAN(DIED) S/O.SANKARAN, METHANATHU HOUSE, BAPUJI NAGAR, PONGUMMOOD, TRIVANDRUM** - **2 S.BALAN** - **MANAGER, METHANATHU TEA ESTATE, CHELICKAL, ELAPPALLY P.O. MOOLAMATTOM.** - **3 ADDL.A3 - M.V.GANESH, AGED 58 YEARS, S/O.LATE M.S.VISWAMBHARAN, HINDU, RESIDING AT MATHANATH HOUSE, BAPUJI NAGAR, PONGUMMOOD, TRIVANDRUM** - **4 ADDL.A4 - JANAKI SANKARAN(DIED) M/O.LATE M.S.VISWAMBHARAN, HINDU, RESIDING AT MATHANATH HOUSE, BAPUJI NAGAR, PONGUMMOOD, TRIVANDRUM** - **5 ADDL.A5 - RAJI VISWAMBHARAN, W/O.LATE M.S.VISWAMBHARAN, HINDU, RESIDING AT MATHANATH HOUSE, BAPUJI NAGAR, PONGUMMOOD, TRIVANDRUM** - **6 ADDL.A6 - RAKHI VISWAMBHARAN, D/O.LATE M.S.VISWAMBHARAN, HINDU, RESIDING AT MATHANATH HOUSE, BAPUJI NAGAR, PONGUMMOOD, TRIVANDRUM** A.S.Nos.460 and 352 of 1999 -: 4 :- - **7 ADDL.A7 - REKHA VISWAMBHARAN D/O.LATE M.S.VISWAMBHARAN, HINDU, RESIDING AT MATHANATH HOUSE, BAPUJI NAGAR, PONGUMMOOD, TRIVANDRUM** **LEGAL HEIRS OF DECEASED A1 ARE IMPLEADED AS ADDITIONAL APPELLANTS A3 TO A7 VIDE ORDER DATED 6.12.18 IN IA 3/18** - **8 ADDL.A8 - LEELA SWAMINATHAN D/O.SANKARAN,J 1 A, JASMIN, ROYAL GARDENS, OPP.MILMA PARLOUR, TRIPUNITHURA, ERNAKULAM – 682 301.** - **9 SUSHEELA JAYACHANDRAN D/O.SANKARAN, UTHARAYAN,42 TAGORE GARDENS, KUMARAPURAM, THIRUVANANTHAPURAM – 695 011. LEGAL HEIRS OF DECEASED A4 ARE IMPLEADED AS ADDITIONAL A8 AND A9 VIDE ORDER DATED 31.7.2023 IN IA NO.1/2023.** **BY ADVS. MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE** ## **RESPONDENT/S:** **GEORGE JACOB S/O.JACOB, THEKKEMURIYIL HOUSE, ANAKKALLU KARA AND POST KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK.** **BY ADVS. SRI.T.I.ABDUL SALAM SRI.C.K.VIDYASAGAR** **THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 12.03.2024, ALONG WITH AS.460/1999, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = A.S.Nos.460 and 352 of 1999 = = = = = = = = = = = = = = = = = = Dated this the 12[th] day of March, 2024** ## **JUDGMENT** The suit for declaration of title over the timber logs scheduled to the plaint, and for damages, was decreed in part. Challenging the respective part of the decree which are against the plaintiff and the defendant, they are in appeal. A.S.Nos.460 of 1999 is by the plaintiff and 352 of 1999 is by the defendant. 2. The plaintiff is stated to be a saw mill owner and dealer in timber. The 1[st] defendant is the owner of a tea estate. The 2[nd] defendant is its manager. On 13.07.1992, Ext.A1 agreement was entered into between the plaintiff and the 1[st] defendant with regard to sale of 180 numbers of Aanjili trees, 20 numbers of soft wood trees and 35 numbers of rosewood trees, for a total consideration of Rs.18,00,000/-. Though the defendant A.S.Nos.460 and 352 of 1999 -: 2 :- had represented that he had cutting permits for 24 numbers of rosewood trees, permit was available for only 16 numbers. The plaintiff cut and removed 13 numbers of rosewood trees. There arose a claim from the Revenue Department that some of the trees are standing in Government puramboke. The plaintiff was unable to cut and remove the softwood trees. The plaintiff made a total payment of Rs.14,50,000/- on various dates as under; |r;||| |---|---|---| |**Date**|**Amount**|**Mode ofpayment**| |13.07.1992|Rs.1,00,000/-|Endorsed on Ext.A1| |31.08.1992|Rs.1,50,000/-|Demand Draft| |03.09.1992|Rs.5,50,000/-|Ext.A2 letter| |02.11.1992|Rs.2,00,000/-|Demand Draft| |26.11.1992|Rs.2,50,000/-|Demand Draft| |10.12.1992|Rs.2,00,000/-|Demand Draft| There is a further claim that the plaintiff has supplied firewood to the defendant worth Rs.40,000/- and the same is also to be considered as payment. Alleging that the A.S.Nos.460 and 352 of 1999 -: 3 :- defendant is not permitting the plaintiff to remove the trees, the suit has been filed. 3. The defendant denied the alleged payment of Rs.5,50,000/- on 03.09.1992. It was contended that, Ext.A2 receipt only acknowledged that an amount of Rs.5,50,000/- was received by the defendant till that date from the plaintiff. It was contended that the softwood, as was agreed, was cut and removed by the plaintiff. The alleged sale of firewood worth Rs.40,000/- was also denied. 4. The trial court accepted the claim of the plaintiff with regard to the payment of Rs.5,50,000/under Ext.A2. It was held that the plaintiff had removed the softwood trees. The claim of the plaintiff with regard to the sale of firewood was negatived. 5. I have heard Shri.C.K. Vidyasagar, the learned counsel on behalf of the plaintiff-appellant in A.S.Nos.460 and 352 of 1999 -: 4 :- A.S.No.460 of 1999 and Shri.Mathew John, the learned counsel on behalf of the appellant-defendant in A.S.No.352 of 1999. 6. The points that arise for determination are; _i) Is the finding of the trial court that an amount of Rs.5,50,000/- was paid by the plaintiff to the defendant under Ext.A2, sustainable in law?_ _ii) Is the finding of the trial court that the softwood, as agreed in Ext.A1 agreement, was removed by the plaintiff, based on evidence?_ _iii) Was the trial court right in having negatived the claim of the plaintiff with regard to the sale of firewood?_ _iv) Was the trial court right in having granted a decree for declaration of title of the plaintiff over the timber?_ _v) Does the decree and judgment of the trial court warrant any interference?_ 7. While considering point No.1, it is appropriate to refer to the contents of Ext.A2, which reads thus; A.S.Nos.460 and 352 of 1999 -: 5 :- _Date: 3.9.92_ _To_ _George Jacob, St. Mary's Saw Mill, Arattupuzha._ _I have received a sum of Rs.Five Lakhs Fifty Thousand [5,50,000] from the above addressee, towards the advance of the wooden item from the Methanath Tea Estate._ _Yours faithfully,_ **==> picture [23 x 11] intentionally omitted <==** _M.S. Viswambaran_ It is claimed by the defendant that, on the date of Ext.A2 ie:03.09.1992, only an amount of Rs.3,00,000/was paid by the plaintiff. On the date of Ext.A1 agreement, an amount of Rs.1,00,000/- was received. This was followed by payment of an amount of Rs.1,50,000/- on 31.08.1992. Thus, the total amount received as on 03.09.1992 was Rs.5,50,000/-. Ext.A2 letter only acknowledged the receipt of the said amounts, is the A.S.Nos.460 and 352 of 1999 -: 6 :- contention. The defendant was unable to produce any evidence regarding the receipt of Rs.3,00,000/- on 03.09.1992. The contents of Ext.A2 letter indicates that, on 03.09.1992 the defendant received Rs.5,50,000/- from the plaintiff. The contents cannot be read to understand that it merely acknowledged certain earlier payments. In the absence of any evidence to the contrary, the trial court was justified in relying on the contents of Ext.A2 to find the payment of Rs.5,50,000/- on 03.09.1992. The said finding warrants no interference. 8. The plaintiff would contend that he was unable to cut and remove the softwood trees. He had postponed its removal towards the latter part of the execution of the contract since the wood would decay immediately after it is severed, and hence it had to be removed immediately. The learned counsel for the plaintiff would A.S.Nos.460 and 352 of 1999 -: 7 :- contend that, the finding of the trial court that the plaintiff had removed softwood trees is without any basis and overlooking Ext.C1 Commissioner's report and also the evidence of PW4 – Commissioner. 9. The Commission was an _ex parte_ one taken along with the suit. The total extent of the property, as seen scheduled to the plaint, is 136.10 Acres, from which the trees were to be cut and removed. It is nobody's case that the said extent of land contains only the limited numbers of trees in respect of which Ext.A1 agreement was entered into. Therefore, the mere report of the Commissioner that he could not notice that any softwood trees were cut and removed recently, by itself is not determinative. As per the terms of Ext.A1 agreement, out of the total consideration of Rs.18,00,000/-, an amount of Rs.7,00,000/- is towards cost of rosewood and the remaining Rs.11,00,000/- is towards the cost of Aanjili A.S.Nos.460 and 352 of 1999 -: 8 :- and softwood trees. The agreement specifies that, on or before 15.09.1992 the Aanjili and softwood trees are to be severed and that, on payment of a further amount of Rs.6,00,000/- on or before 15.11.1992, the said timber can be removed. The remaining payments relate to the cutting and removal of rosewood trees on future dates. Therefore, going by the agreement, it is the Aanjili and softwood trees, which were to be cut and removed first on payment of its cost. The plaintiff as PW1, in his chief examination stated that, on payment of Rs.5,00,000/-, he started to cut and remove Aanjili and softwood trees. The relevant portion of his deposition reads thus; “Advance ഒര� ലക� ര�പ ക��ട�ത�. ബ�ക� 5½ ലക� cash . 5 ആയ� ക��ട�ത� ലക� ര�പ ക��ട�ത� . 6 ആഞ�ല�യ�� പ�വ�� പ�ഴ� മരവ�� കവട�ൻ ത�ടങ� .” ലക� ര�പ ക��ട�ത� തട� ന�ക� ക യ"� A.S.Nos.460 and 352 of 1999 -: 9 :- Therefore, this fortifies the case of the defendant that the plaintiff had cut and removed the softwood trees. The mere existence of softwood trees in the vast extent of property, cannot be taken advantage of by the plaintiff to contend that there still exists such trees in the property and he had not cut and removed the same. The learned counsel for the plaintiff would argue that, the Commissioner has reported that he is not able to find out the stumps of any softwood trees; it indicates that such trees were not cut and removed by the plaintiff. Here, it is to be noticed that, though admittedly the plaintiff had cut and removed Aanjili trees, the Commissioner as PW4, has deposed that he could not find the stumps of any trees, except rosewood trees. The relevant deposition reads thus; " .” ഈട� ഒഴ�ക� ഒര� മരത�ന�ക$യ�� ��റ��ൾ �ണ�ല A.S.Nos.460 and 352 of 1999 -: 10 :- When the Commissioner was unable to find out the stumps of Aanjili trees, which were admittedly cut and removed, the mere fact that he did not report about the stumps of the softwood trees, is of no significance. Though not elaborately discussed, it is on the above material that the trial court has arrived at the conclusion that the plaintiff had cut and removed the softwood trees. The said finding warrants no interference. 10. Now coming to the contention with regard to the sale of firewood by the plaintiff to the defendant, there is total lack of evidence. When the parties were careful enough to enter into a written contract (Ext.A1) with regard to the sale of timber, they would have in all probabilities entered into some written agreement with regard to the purchase of firewood also. In the absence of any evidence, the trial court was right in having declined such claim of the plaintiff. A.S.Nos.460 and 352 of 1999 -: 11 :- 11. With regard to the prayer for declaration of title over the 13 numbers of rosewood trees, it is not in dispute that, though Ext.A4 cutting permit was in respect of 16 trees, only 13 trees were cut down. The court has taken the average value at Rs.20,000/- and calculated the total value of 13 trees at Rs.2,60,000/-. It is not in dispute that the trees are of different growth; therefore a uniform price could not have been adopted, contends the learned counsel for the defendant. While it is true that the size of the timber might vary, the number of trees were specified and the total value was fixed. The mode adopted by the court could only be held to be reasonable. 12. The court found that the plaintiff had paid total amount of Rs.14,50,000/- to the defendant. As was noticed earlier, the total cost of Aanjili and softwood trees is Rs.11,00,000/-. The plaintiff has paid, in A.S.Nos.460 and 352 of 1999 -: 12 :- addition to the said Rs.11,00,000/-, a further amount of Rs.3,50,000/-. It can only be towards the value of rosewood trees. The value of 13 rosewood trees is calculated at Rs.2,60,000/-. Therefore, the plaintiff had already paid for its value. It is accordingly that the court granted declaration as sought for. 13. On the question as to when the title over the timber passes to the plaintiff, the answer is found in the judgment of the Apex Court in _**R. N. Mahato v. State of M.P. (1970) 1 SCC 25**_ . The Apex Court held, _**“10.** The relevant provisions of the Sale of Goods Act may also be noticed. Section 2(7) of the Sale of Goods Act defines “goods” as meaning “every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale”. Trees from which logs of timber were agreed to be cut and sold are things attached to or forming part of the land. The trees were agreed to be severed under the contract of sale. A contract for sale of logs is doubtless a contract for sale of goods. But in view of the terms of the deed the contract was not for sale of ascertained goods. Only logs_ A.S.Nos.460 and 352 of 1999 -: 13 :- _with a girth not less than 2 feet were to be supplied after the trees were cut by the Jagirdar. This is not a contract under which the trees of the entire forest in a particular village were agreed to be sold. Goods to be sold were, therefore, unascertained, and it is well settled that a contract for unascertained goods is not a complete sale, but only a promise to sell: Badische Anilin Fabrik v. Hickson [(1906) AC 419 at p. 421] it was said in that case:_ _“Where the goods are not ascertained or may not exist at the time of the contract, from the nature of the transaction, no property in the goods can pass to the purchaser by virtue of the contract itself; but where certain goods have been selected and appropriated by the seller, and have been approved and assented to by the buyer, then the case stands as to the vesting of the property very much in the same position as upon a contract for the sale of goods which are ascertained at the time of the bargain.”_ _Where a thing is attached to, or forms part of, land at the time of the contract and which is to be severed by the buyer, the property in the thing passes in the absence of a contract to the contrary to the buyer on the severence of the thing from the land. This is clearly the effect of Section 18 of the Sale of Goods Act. For property to pass, the identity of the thing intended to be delivered must be ascertained, and unless the parties are agreed as to what goods are to pass under the terms of the contract, the property will not pass. It is essential_ A.S.Nos.460 and 352 of 1999 -: 14 :- _that the thing should be specific and ascertained in the manner binding upon the parties unless that be so, the contract cannot be construed as a contract for sale of movable property. Again under Section 21 of the Sale of Goods Act, even if there be a contract for the sale of specific goods, but the seller is obliged under the terms of the contract to do something to the goods for the purpose of putting them into a deliverable state, the property passes only when the thing agreed to be done is done and the buyer is informed thereof.”_ Here it is not in dispute that the 13 timber were cut down. The said 13 trees being the subject matter of Ext.A1 agreement, the same having been cut down, and the price for the same having been paid by the plaintiff, the defendant cannot have any further claim over the same. The trial court was right in having declared the title of the plaintiff over the same. 14. On the above discussions, it can only be found that the decree and judgment of the trial court are based on the evidence on record and warrants no interference. A.S.Nos.460 and 352 of 1999 -: 15 :- Resultantly, the appeals fail and are dismissed. No costs. Sd/- **SATHISH NINAN, JUDGE** yd