JUDGMENT Bennet, J.
1. This is a reference under Order 46, Rule 1, Civil P.C., by the learned Small Cause Court Judge, Sahaswan, of the following question:
Whether on a transfer of sir rights in respect of a plot on which a grove stands, the right to the trans-possession of the trees is transferred to the transferee, or the trees also would be subject to the ex-proprietary tenancy rights?
2. The frame of this question is somewhat unfortunate. Section 6, Agra Tenancy Act, Act 3 of 1926, lays down that sir rights are not transferable except in two cases, neither of which arises in the reference. The question is also at fault in referring to "subject to the ex-proprietary rights" where the alternative really is "or the right to the possession of the trees remains with the transferor." The order of reference has set out the question more correctly at an earlier part as follows:
The question, on which there is a dispute between the parties, then resolves itself into whether on the transfer of proprietary rights in sir land on which a grove stands, the right to the possession of the trees and their fruits remains with the transferor or goes to the transferee.
3. The particular case which has arisen is one where on 15th April 1929 defendant 1 and the predecessor of defendants 1 and 2 executed in favour of plaintiffs usufructuary mortgage deed of zamindari property, which included plot No. 373, a sir plot, area 1 bigha 5 biswas grove. The reference is silent as to whether the Collector fixed ex-proprietary rent on the sir land under Section 36, Land Revenue Act, 1901. Learned Counsel produced an agreement between the parties that the mortgagors were to pay Rs. 45 per annum to the mortgagees as rent for this grove, but this document is not yet on the record. The Court below should go into this matter, and presumably this agreement would settle the rights of the parties as to possession of the trees, for which apparently the rent was to be paid. The plaintiffs sue alleging that they are entitled to appropriate the fruits of the grove, and the defendants allege that as ex-proprietary tenants, they are entitled to the fruits of the trees. The learned Counsel also produces the usufructuary mortgage deed of 15th April 1929 and an endorsement on it shows that it was produced before the lower Court. It contains details of the zamindari mortgaged and refers to the number in question as follows : "ek kita bagh tadadi 1 bigha 5 biswas mi darakhtan c arazi zer darakhtan muafi minzabta number 373."
4. Taken with the agreement, it appears that in the present case, the usufructuary mortgage was of the proprietary rights in the sir No. 373 and in the fruit trees on that number, and that the ex-proprietary tenants were to hold possession of the fruit trees and take the fruit, and that this was the use of the number for their ex-proprietary rights, and for which they paid the agreed ex-proprietary rent. It seems that some of the cases cited were decided on the particular terms of the transfers and agreements in those cases. This is correct, because the exproprietary tenancy arises in the land and not in the trees, and therefore it is open to the parties to make whatever agreement they desire about the use of the trees. The question referred by the Court below is a general question, where the rights of the parties are not defined as regards the trees, either by the deed of transfer or by the fixation of exproprietary rent under Section 36, Land Revenue Act, or by agreement. In such a general case the following considerations apply on the transfer of proprietary rights in sir land on which a grove stands. In such a case the Agra Tenancy Act, 1926 Section 14(1) lays down that the landlord "shall become a tenant, with a right of occupancy in his sir." A right of occupancy implies a right to occupy the land. Section 3(2) states that "land' means land which is let or held for agricultural purposes, or as grove-land or for pasturage." Therefore, the exproprietary tenant has a right to occupy the land as grove-land, because that it the nature of the land at the time of transfer, and it is the only use which he can make of the land when his tenancy arises. Grove-land is denned in Section 3(15) as land...having trees planted thereon in such numbers that when fully grown they will preclude the land or any considerable portion thereof being used primarily for any other purpose.
5. To hold that the ex-proprietary tenant would have no right to take the produce of the fruit trees would mean that he would have no enjoyment of his rights as an ex-proprietary tenant, and that the holding would be of no value to him as long as the trees stood on it. There is no provision in the Tenancy Act under which the ex-proprietary tenant could insist on the transferee removing the trees and it would be open to the transferee to keep the trees there until they ceased to exist, and for all that time the exproprietary tenant would be deprived of his enjoyment of his tenancy.
6. Under the Land Revenue Act, Section 36, when the right of occupancy is created under Section 14, Agra Tenancy Act, 1926, the Collector shall...pass an order specifying the land in which such occupancy right has been created, and fixing the rent payable therefor.
7. Now under the Agra Tenancy Act, 1926, Section 3(3) "'rent' means whatever is to be paid...by a tenant for land held by him." The rent is payable by the tenant for the land held as grove-land and therefore the tenant has a right to take the produce of the grove. It is pointed out that in such a case the transferee of the proprietary rights does not receive a right to take the fruit, and the question is asked what benefit does he receive? The answer is that the transferee receives the right to take the exproprietary rent fixed on the grove-land by the Collector, and there is no distinction in this case between sir which is grove-land and sir which is agricultural land.
8. It is to be noted that the Tenancy Act draws a distinction in Section 14 between sir which is grove-land and khudkasht which is grove-land and no exproprietary rights arise in the latter' class of land, as Section 14(8) provides "for the purposes of Sub-section (1) the use of land as grove-land shall not be deemed cultivation." Sub-section (1) allows exproprietary rights "in land which he has cultivated continuously for ten years at the date of transfer" and where a grove is standing on that land at the date of transfer, the land does not count as cultivated, and therefore no exproprietary rights arise in it as khudkasht. But the rights do arise if the grove-land is sir, as the sir right does not depend on cultivation at the date of transfer. Now as the Tenancy Act of 1926 draws this distinction between grove-land which is sir and grove-land which is khudkasht, creating an exproprietary tenancy in the sir and none in the khudkasht, it follows that the Act must intend that the exproprietary tenant will receive some benefit from his tenancy, otherwise there would be no point in making the distinction. The benefit which he will receive must be the use and usufruct of the grove-land, that is the right to take the fruit of the grove.
9. The above view of the law has been taken by me in Desa v. Dhum Singh reported in 1935 A.L.J. 1289 and in (1935) 22 A.I.R. All. 453. In that case there was an auction sale of a zamindari share, and there was a plot of sir in the share on which stood a grove of the zamindar. After the auction sale rent was assessed on the plot as the exproprietary tenancy. There was no deed of transfer by which any right to hold the trees was specified, as the transfer of the zamindari share was by auction sale; and the purchaser was presumably a party to the proceeding under Section 36, Land Revenue Act, by which exproprietary rent was fixed on the plot. As regards transfers of property under Section 5, T.P. Act, by conveyance from the owner, Section 8 provides that:
Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof.
10. And that land includes all things attached to the earth. Section 3 lays down that trees and shrubs coma under the words "attached to the earth," Therefore the title to trees and shrubs passes with the transfer of proprietary rights in the land. This view has been laid down by a learned member of this Bench in Yakub Ali v. Tajammul Husain (1932) 19 A.I.R. All. 653. That case was about; the right of the exproprietary tenant to appropriate the fruits of a grove on land of his exproprietary tenancy. Unfortunately, the argument put forward for the tenant was that exproprietary rights must have also arisen in the trees of the grove, and this argument was not accepted by the learned Judge. I agree with this view that such rights do not arise in the trees. But the point that the exproprietary tenant has a right to the use of the trees so long as the trees stand on his tenancy is a different one, and his right arises from his right to occupy the holding and therefore to take its produce, whether from agriculture, grove or pasturage. This point was not argued before the learned Judge and is not mentioned in the ruling.
11. Some rulings of the Board of Revenue have been mentioned. In Safi-ul-Hasnain v. Mt. Chandra Devi (1933) 17 R.D. Rev. 900 "a grove which was sir was sold with the trees and though it was clear that the vendor had paid the price of the trees but the vendor claims exproprietary rights." The claim was disallowed. In Murtaza Begum v. Hoshiar Singh (1935) R.D. Rev. 477 the value of property for auction sale had been increased at the instance of the judgment-debtor by a large amount to in. elude the value of the groves, and following the previous ruling it was held that there was nothing loft in which exproprietary rights could arise. It is to be noted that both these rulings arose out of proceedings for the assessment of rent on an exproprietary holding under Section 36, Land Revenue Act, and the Board held that no such rent can be assessed where the conditions of sale are such that the right to appropriate the produce of the trees has passed to the purchaser.
12. The decisions of the Board of Revenue are entitled to respect in the High Court, and where possible difference should be avoided. But it seems that the point was not argued before the Board that the sales in question could not give the purchaser the right to appropriate the produce of the groves because this would be contrary to Section 15, Tenancy Act, as this would have the effect of the surrender or relinquishment of exproprietary rights. That this result arose is shown by the findings of the Board that no exproprietary rights arose and there was nothing on which exproprietary rent could be assessed. The arrangement would therefore have to be made in accordance with the provisions of S, 15, such as by sanction of the Assistant Collector in charge of sub-division under Sections 15(2) or (3), or of the Appellate Court under Section 15(4). As the sanction can be given if reasonable grounds exist, it does not appear that the provision imposes any hardship on the parties. Presumably the fact that the vendee had paid the price of the trees - that is the price which would cover the use of the trees - in the first case, and the fact that the judgment-debtor in the second case had asked for the value of the property for auction sale to be increased by a large amount to include the value of the groves - from the same point of view - would constitute "reasonable grounds" under Section 15.
13. It may also be noted that Section 15 does not affect any agreement to relinquish exproprietary rights which is not within six months of a transfer of proprietary rights, and the last paragraph allows a usufructuary mortgage wholly of a specific area of sir, with a simultaneous agreement in writing waiving exproprietary rights. As regards the sale of proprietary rights and an agreement between the parties that the transferee may cut down the trees in a grove on sir land as timber, such an agreement would not be contrary to Section 15, because on the cutting down of the trees, the vendor would be able to exercise his exproprietary rights in the land as agricultural land. The agreement would have to be that the trees would be cut down within a reasonable time, otherwise it would interfere with the exproprietary rights. My answer to the question referred is as follows. On the transfer of proprietary rights in sir land on which a grove stands, the right to the possession of the trees and their fruit remains with the transferor, unless he relinquishes this portion of his exproprietary rights, or the whole of his exproprietary rights in accordance with Section 15, Agra Tenancy Act, 1926.
Iqbal Ahmad, J.
14. The questions of law that arise for consideration in the present reference are : (1) whether, on the transfer of proprietary rights in a plot of land and of the grove existing on the same, exproprietary rights in the plot accrue in favour of the transferor, if the plot was his sir and (2) whether the transferor or the transferee is entitled to the possession of the trees and to appropriate the fruits. The first question to my mind presents no difficulty. The existence of exproprietary tenures in the province of Agra (Northwestern Provinces) dates back to the year 1873 when for the first time by Section 7 of Act 18 of 1873, it was enacted that:
Every person who may hereafter lose or part with Ms proprietary rights in any mahal shall have a right of occupancy in the land held by him as sir in such mahal at the date of such loss or parting, at a rent which shall be four annas in the rupee less than the prevailing rate payable by tenants-at-will for land of similar quality and with similar advantages.
15. "Sir land" was also defined by Section 3(4) of the said Act as meaning:
(a) Land recorded as sir at the last settlement of the district in which it is situate, and continuously so recorded since; (b) land continuously cultivated for 12 years by the proprietor himself with his own stock or by his servants, or by hired labour; (c) land recognized by village-custom as the special holding of a co-sharer, and treated as such in the distribution of profits or charges -among the co-sharers.
16. The Act of 1873 was repealed by Act 12 of 1881, but in the latter Act provisions identical to those contained in Section 3(4) and Section 7 of the former Act were enacted (vide Section 3(4) and Section 7 of the Act of 1881). The provisions of Section 7 of the two Acts were mandatory and, on transfer of proprietary rights, exproprietary rights accrued in sir land irrespective of the fact whether the sir land was covered with grove or was used for agricultural purposes in the ordinary sense of the term. There was nothing in either of the two Acts to exempt from the operation of Section 7 sir land covered with grove. It is, therefore, manifest that on the transfer of sir land covered with grove, exproprietary rights accrued in favour of the transferor in accordance with the provisions of the Acts mentioned above. Act 12 of 1881 was repealed by the N.W.P. Tenancy Act (Act 2 of 1901) and by Section 10 of the last mentioned Act provisions similar to those contained in Section 7 of the former Acts were re-enacted. The definition of sir as contained in the Acts of 1873 and 1881 was omitted in Act 2 of 1901, but the same definition with slight modification was in corporated in the Land Revenue Act (Act 3 of 1901). The provisions of Section 10 of the Tenancy Act were also mandatory and gave rise to exproprietary rights in sir land on the transfer of the same even though a grove may have existed on the sir land at the time of the transfer, and this was the view consistently taken by this Court and by the Board of Revenue : vide Shiam Lal v. Anant Ram (1912) 17 I.C. 302, Har Saran Daa v. Harbans Singh (1930) 17 A.I.R. All. 655, Lachmi Narain v. Jai Kishan (1918) 3 U.D. 159 and Abdul Latif v. Ahmad Hasan (1930) 12 U.D. 214.
17. The Tenancy Act of 1901 was repealed and replaced by the Agra Tenancy Act (Act 3 of 1926) which is now in force Section 4 of the present Tenancy Act defines "sir." This definition is partly old and partly new and as compared with the definition of 'sir' contained in the previous enactments considerably enlarges the extent to which sir can be acquired. This however is immaterial so far as the question under consideration is concerned. By Section 14 of the present Act ex-proprietary rights are declared to accrue in sir on the transfer of proprietary rights of the sir holder. In the present Act also there is nothing to suggest that exproprietary rights are not to accrue in a sir plot which was covered with a grove. This conclusion becomes irresistible when one turns to the definition of "land" in Section 3(2) of the Act. "Land" is defined as meaning "land which is let or held for agricultural purposes, or as grove-land or for pasturage." In the Act of 1901 the words "or as grove-land or for pasturage" did not find a place in the definition of "land". The addition of these words in the definition of "land" in present Act demonstrates that the mere existence of grove on a sir plot could not affect the character of the plot and the plot would continue to be the sir of the proprietor. There is therefore no escape from the conclusion that even under the present Act exproprietary rights accrue in a sir plot covered with grove when the plot along with the grove is transferred and this view has prevailed in this Court : vide Yakub Ali v. Tajammul Husain (1932) 19 A.I.R. All. 653 and (1935) 22 A.I.R. All. 453.
18. The Board of Revenue has however taken the contrary view. It has held that if a grove, which is sir, is sold with the trees, the proprietor loses his sir rights by sale of the land and his grove rights by sale of the trees and he cannot claim exproprietary rights with regard to the trees or to the land so long as the grove exists in such a condition as to preclude cultivation : vide Safi-ul-Hasnain v. Mt. Chandra Devi (1933) 17 R.D. Rev. 900, Murtaza Begum v. Hoshiar Singh (1935) R.D. Rev. 477 and Bishambhar Sahai v. Rati Ram (1936) A.W.R. 1098. I regret I am unable to agree with these decisions. As I have already observed in none of the enactments declaring the accrual of exproprietary rights there is any provision to justify the assumption that exproprietary rights are not to accrue on the transfer of a sir plot covered with grove. It is the fact of trans, far of sir plot that gives rise to exproprietary rights irrespective of the fact whether the plot is used for agricultural purposes or is covered with a grove. I would therefore answer the first question formulated at the inception of this judgment in the affirmative. On the second question I, with all respect, am unable to share the view taken by my learned brethren as I am unable to discover any provision of law justifying the conclusion that the transferee is not entitled to the possession of the trees constituting the grove and its fruits.
19. The owner of a plot of land which is his sir has two distinct rights in the plot. Firstly, he has proprietary interest in the plot which by law is transferable and secondly, he has cultivatory right which is non-transferable except to the limited extent provided by Section 6 of the present Tenancy Act. On the transfer of proprietary right the cultivatory right remains vested in the transferor and is termed exproprietary right. Exproprietary rights however arise only in the land and not in the trees constituting the grove and the reason for this is that cultivatory rights exist in the land and not in the trees. In the grove existing on the plot the owner has only proprietary rights which by law are transferable. It is an axiomatic truth that on transfer the rights transferred pass from the transferor to the transferee who is entitled to the enjoyment of the same. That being so, it follows that a vendee or a usufructuary mortgagee of a move on a sir land is entitled to the possession and enjoyment of the same. To hold otherwise would in effect be tantamount to holding that the proprietor of a grove existing on his sir land is not entitled to transfer the same. Such a view would lead to anomalous and startling results. The position of a groveholder as defined by Section 196 of the present Tenancy Act is, in view of the provisions of Section 197(a) of the Act, ordinarily that of a non-occupancy tenant so far as the land covered with the grove is concerned, but notwithstanding this fact his interest as a groveholder is, in the absence of a custom or contract to the contrary, transferable [vide Section 197(b) of the Act]. Surely the position of the owner of a grove existing on his sir plot cannot be worse than that of a "grove-holder" so far as the right to transfer the grove is concerned. If the transferee of a "groveholder" is entitled to the possession of the grove the transferee of the grove on the sir plots must necessarily be entitled to the possession of the same. "Land" as defined by Section 3(2) of the present Tenancy Act, no doubt includes a grove-land, but the Act draws a sharp distinction between "grove-land" and "grove". By Section 3(15) it is provided that, "grove-land" means any specific piece of land in a mahal having trees planted thereon in such numbers so that when full grown they will preclude the land or any considerable portion thereof being used primarily for any other purpose, and the trees on such land constitute a grove.
20. It follows from this provision that; "grove" is distinct from "groveland" and it this was the view taken by Sulaiman, C.J. in Baqridi Mian v. Bhagwan Din (1935) 22 A.I.R. All. 608. His Lordship held that grove-land means the land on which the trees stand and which would according to the definition of holding in Section 3(8) be a holding, whereas the grove, namely, the trees which stand on it, would not be a holding and the groveholder, who planted the trees, would have proprietary interest in the trees.
21. The contrary view was however in the said case taken by my learned brother who has presided over the present Full Bench. The view expressed by me in Yakub Ali v. Tajammul Husain (1932) 19 A.I.R. All. 653, is identical with the view taken by Sulaiman, C.J. and I still adhere to that view. A sir plot on which a grove exists must, in view of the definition of "grove-land" in the Act, be regarded as "grove-land". But on the transfer of that plot along with the grove, exproprietary rights that accrue in the land cannot, in my judgment, adversely affect the right of the transferee to the possession of the grove] transferred to him. In arriving at this conclusion, I have not overlooked the provisions of Section 14 of the present Tenancy Act and of Section 36, Land Revenue Act. Section 14 provides that on the transfer of his proprietary rights every landlord "shall become a tenant with a right of occupancy in his sir land..." and Section 36, Land Revenue Act enjoins on the Collector to "pass an order specifying the land in which such occupancy right has been created, and fixing the rent payable therefor." A reasonable inter, pretation has to be put on these sections and, in my judgment, so long as the grove exists and the exproprietary tenant is not in a position to derive any benefit from the land in which exproprietary rights have accrued, no rent can be assessed on the plot. In the case under consideration, the Collector, while proceeding under Section 36, Land Revenue Act, cannot ignore the right of the transferee to the possession of the grove, and, as such, he will have to take into consideration the fact that so long as the grove exists the exproprietary tenant cannot have the beneficial enjoyment of the plot. The Collector will of necessity have to hold that no rent is to be payable by the exproprietary tenant so long as the grove exists and the plot is not fit for cultivatory occupation by the exproprietary tenant. It is in this view of the matter that the Board of Revenue has in the cases referred to in the judgment of my learned brother consistently held that during the existence of the grove no rent can be assessed on the plot and with this view of the Board, I am in full agreement.
22. I may observe in passing that a view contrary to the view taken by the Board would be of mere academical interest and of no practical utility for the simple reason that the Collectors are bound by the decisions of the Board and not by the decisions of this Court and therefore the Collectors cannot, contrary to the view expressed by the Board, proceed to assess rent on sir plots covered with groves when the same has been transferred. It follows that on the transfer of a sir plot along with the grove standing on the same the Revenue Court will not, so long as the grove exists, assess rent on the plot. The question of an exproprietary tenant being called upon to pay rent while not being allowed to put the plot in which exproprietary rights have accrued to beneficial enjoyment cannot therefore arise in actual practice. Grove, land and grove were not defined in the previous Tenancy Acts that preceded the present Tenancy Act, and, as such, the judicial decisions prior to the passing of the present Act are now of no assistance.
23. There is yet another consideration that has led me to take the view expressed above. It cannot be disputed that the owner of a grove standing on his sir plot is entitled to sell or mortgage with possession the grove alone without transferring his proprietary right in the plot. In such a case no exproprietary rights will accrue in the plot for the simple reason that the plot was not transferred and the vendee or the mortgagee with possession will undoubtedly be entitled to the possession and enjoyment of the grove. Why should then the additional transfer of the proprietary interest in the plot deprive the transferee of the right to the possession of the grove, passes my comprehension. It may be said that because the exproprietary tenant is liable to pay rent the transferee has no right to the possession of the grove. But complete answer to this suggestion is furnished by the fact that in cases where the grove alone is transferred and not the proprietary right in the plot the proprietor of the plot remains liable to pay the Government revenue of the plot even though the possession of the grove remains with the transferee. Law does not allow a person to derogate from his own grant and a landlord who has transferred his proprietary interest in his sir plot along with the grove existing on the same cannot be allowed to turn round and say that as he acquired exproprietary right in the plot, he is at liberty to ignore the transfer of the grove made by him and to retain its possession. Even if it be assumed for the purposes of argument that the right of the transferee to the possession of the grove is inconsistent with the right of occupancy created in the exproprietary tenant, the right of the latter must yield to the right of the former.
24. Again, take another case which, in my judgment, clinches the matter. A, the owner of a sir plot on which a grove exists, sells or usufructuarily mortgages the grove alone to B and a year after sells or mortgages with possession his proprietary interest in the plot to C. On the transfer of the proprietary interest in the plot exproprietary rights would accrue in the plot in favour of A and he would acquire a right of occupancy in the plot. Could A then, because of the accrual of exproprietary rights, claim possession of the grove from B? It is impossible to answer this question in the affirmative. The right of B to the possession of the grove could not be adversely affected in consequence of a transfer by A in favour of G even if the Revenue Court were to assess rent on the plot, for the simple reason that the rent assessed on the plot would be payable to C and not to B as B did not acquire any proprietary interest in the plot by virtue of the transfer in his favour. It is manifest from this illustration that in fixing rent with respect to exproprietary right the Revenue Court cannot take into consideration the profit accruing from the grove on the plot. It follows that so long as the grove exists and the plot cannot be put to beneficial enjoyment by the exproprietary tenant no rent can be assessed on the same. For the reasons given above, my answer to the second question is that the transferee land not the transferor is entitled to the possession of the grove and its fruits.
Allsop, J.
25. I had the advantage of seeing the judgment of my brother Bennet and expressed my concurrence with it, but as my brother Iqbal Ahmad has taken a contrary view I should like to add a few words. It is not necessary for me to restate the question which has been referred to this Court. The answer depends I think upon a recognition of the fact that there are two transfers, namely a transfer of proprietary rights by the act of the parties and immediately afterwards a re-transfer of the land by the new proprietor to the old proprietor as a tenancy by operation of law. As (soon as the old proprietor becomes the exproprietary tenant, he is in the same position as ho would have been if the land had been let to him as grove-land or in other words as he would have been if the now proprietor had created a lease of the land in his favour. Now, under the provisions of Section 8, T.P. Act, unless a different intention is expressed or necessarily implied, a transfer of land passes to the transferee not only the land but all things attached to the earth and under Section 3 of the Act things attached to the earth mean, among others, things rooted in the earth as in the case of trees. In the absence of a special covenant therefore, the new proprietor becomes the proprietor of the land and of the trees and the old proprietor becomes the tenant of the land with a right to use the trees as long as they stand upon the land. It is quite unnecessary for the old proprietor when he makes a transfer of the land to mention the trees at all. If he does not mention them, they pass under the provisions of the Transfer of Property Act to the new proprietor. If the trees are mentioned therefore the only effect of mentioning that they are to be transferred can be to restrict the right of the old proprietor in his capacity of tenant to use the trees. If the law did not set any limits upon the rights of the parties to contract, the old proprietor could of course agree that he would not as tenant of the land take the produce of the trees, but the law does provide such limits in Section 15, Agra Tenancy Act:
Except as provided in Sub-sections 2, 3 and 4 of that Section no sale of sir or agreement, relinquishment or other transaction having the effect of a surrender or relinquishment of exproprietary rights executed or carried out within six months immediately preceding or succeeding a transfer of proprietary rights shall affect or detract from the rights created by Section 14, i.e. the rights of the exproprietary tenant.
26. In every case therefore it is necessary to examine the agreement between the parties to see whether the old proprietor has covenanted to surrender any part of the ordinary exproprietary rights which he would have under Section 14 and to see further whether such a covenant is valid under the provisions of Section 15. If it appears from the agreement that the old proprietor has not covenanted to give up the right to take the fruit of the trees, then nothing further is to be done. If on the other hand it appears that he has given up the right to take the fruit of the trees it has further to be seen whether that covenant can be enforced. Under Sub-section 2 and 3 of Section 15, Agra Tenancy Act the Assistant Collector in charge of the sub-division may sanction a relinquishment of exproprietary rights and if the Assistant Collector has sanctioned the covenant, there is nothing further to be said. Under the proviso to Section 15 there is no restriction upon the right of the old proprietor to relinquish his exproprietary rights if he has mortgaged only a specific area of sir. If the old proprietor has transferred only a specific area of sir and if it is found that he has covenanted to relinquish his right to the fruit of the trees growing on the sir, then the new proprietor is entitled to take the fruit. On the other hand, if the old proprietor has sold his sir or has mortgaged something more than a specific area of sir, and has not obtained the sanction of the Assistant Collector to a covenant to give up his right in the fruit of the trees, that covenant is not enforceable by law because it amounts to a relinquishment which affects or detracts from the rights created by Section 14. In the absence of any special covenant the exproprietary tenant would be entitled to the fruit of the trees as long as they stood on the land and it is obvious that an agreement to give up the fruit would detract from his rights as a tenant. On the other hand, if it appears from the covenant that the parties have agreed that the trees shall be cut down and removed I do not think that a covenant of this nature would affect or detract from the rights of the tenant. In the normal way, when land with trees growing upon it is transferred by means of a lease, the proprietor cannot remove the trees because they are not in his immediate possession and the immediate right to them vests in the tenant as such. On the other hand, the tenant cannot remove the trees because he is not the proprietor of them and under the provisions of Section 108(c), T.P. Act, he may not fell timber or commit any other act which is destructive or permanently injurious to the property leased to him. There is however nothing to prevent the lessor and the lessee i.e. the proprietor and the tenant from agreeing that trees shall be felled and if there is such an agreement, I do not think that it would detract from or affect the rights of the ex-proprietary tenant in an ordinary case because he would still have the use of the land and would be able to enjoy the produce thereof.
27. It may be that the terms "grove" and "grove-land" are separately defined in the Agra Tenancy Act and are used in different senses in that Act, but there is nothing which suggests that the provisions of the Transfer of Property Act do not apply and that the grove being attached to the grove-land does not pass with that land under the terms of any transfer of property including a lease or something which by operation of law amounts to a lease. If the provisions of Section 15, Agra Tenancy Act, restrict the right of the tenant in any way to transfer the rights which have accrued in the grove, then the law must be enforced.
28. My learned brothers have mentioned the rulings of the Board of Revenue which may give rise to some practical difficulties, but those rulings are not binding upon us in any way and we cannot be held responsible for any practical difficulties which may arise. I may mention that the aspect of the matter which has been considered by my brother Bennet and myself has apparently never been placed before the Board of Revenue and it is possible that they may modify their view on consideration of that aspect. My brother Iqbal Ahmad has also drawn attention to an anomaly which may arise if the proprietor first transfers his right in the trees alone without any transfer of the land to which they are attached and then at a later date, transfers the land. It is possible that there may be such an anomaly but I do not feel that the possible existence of it entitles us to ignore the clear provisions of the law. Whether it would be possible for a proprietor of trees growing upon land to transfer the standing trees without the land upon which they are growing is a matter which I do not think it is necessary in this case to consider. I do not think that this is an ordinary form of transfer. For the reasons which I have given I concur with the decision of my brother Bennet and agree with the answers which he would give upon the question referred to us.