Civil Appeal No 1563 Appeal from the judgment and decree dated December 23
1960 of the Madhya Pradesh High Court in First Appeals Nos 67 and 70 of 1957
Naunit Lal and Sharat Chandra Chaturvedi for the appellant
N Shroff for respondent No 1
The Judgment of the Court was delivered by Shah J
Thakur Randhirshah Jagirdar or Sonpur Jagir executed a deed dated August 5 1949 in favour of Ram Narain Mahto hereinafter called the plaintiff relating to sale of timber for Rs 51501 and received Rs 15000 in part payment
On February 19 1951 the Forest Officer of the State of Madhya Pradesh prevented the plaintiff and the Jagirdar from cutting the trees
On March 31 1951 the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1950 No 1 of 1951 was brought into force and by virtue of that Act the interest of the Jagirdar in the estate vested in the State
On June 14 1954 the plaintiff instituted an action in the Court of the Aditional District Judge Chhindwara for a decree for Rs 150000 for breach of the contract of sale against the State of Madhya Pradesh and against the Jagirdar
There were four heads of the claim for compensation i Rs 21375  being the value of 4275 logs of timber which were cut but which the plaintiff could not remove ii Rs 30000  for 6000 logs of timber which though cut were not found on the spot and some of which were either burnt or stolen iii Rs 30000 on account of 6000 logs of timber from the standing timber of four villages which had not been cut and iv Rs 75000 for 15000 logs of timber which the plaintiff could not cut from the remaining villages
447 The plaintiff claimed compensation for the logs of timber at the rate of Rs 5 per log in the aggregate
The State of Madhya Pradesh contended that the Jagirdar had started illegal cutting for which proceedings were taken against him and that he was prevented from cutting any timber that sometime thereafter the logs of timber lying in the forest were hammermarked and the Jagirdar was permitted to remove the logs till March 31 1953 subject to certain conditions eg obtaining malguzari passes for the transit and submitting weekly statement of the removal that the agreement dated August 5 1949 being unregistered was inadmissible in evidence and created no title mat in any event the deed could not be enforced against the State because of the vesting of the Jagir under the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1950 in the State that the contract created a mere personal liability enforceable against the Jagirdar and that the State was not the successor in interest of the Jagirdar but claimed a right to the Jagir under a statute
The Trial Court held that the plaintiff was entitled to value of the logs of timber described under the four heads of his claim at the rate of Rs 18 per log
Accordingly the trial Court determined the compensation payable to the plaintiff at Rs 46912 and after giving credit for Rs 36000 payable by the plaintiff to the Jagirdar and to which the State became entitled passed a decree for the balance of Rs 10912 and interest thereon
The plaintiff and the State appealed to the High Court
The High Court agreed with the Trial Court that the rate per log could not exceed Rs 18 
The High Court disallowed the claim of the plaintiff for items ii iii and iv and for item i the High Court allowed Rs 3712 being the value of 2475 logs of timber which had not been removed
The High Court held that out of the amount awarded nothing was liable to be deducted towards the alleged arrears due to the Jagirdar
The plaintiff appeals to this Court with certificate granted by the High Court
Counsel for the plaintiff urged that the Courts below were in error in holding  1  that the rate per log of timber was Rs 18  2 that the High Court erred in disallowing compensation for 6000 logs of timber which were cut and appropriated by the plaintiff but which were on account of negligence of the servants of the State either burnt or stolen 3 that the High Court erred in disallowing compensation for items iii and iv being the value of logs of timber which the plaintiff was entitled to but could not cut because of the restrictions imposed by the State
On the first plea not much need be said
The Trial Court as well as the High Court on a consideration of the evidence held 448 that the value of a log of timber did not exceed Rs 18 
That is a concurrent finding of fact and this Court will nor interfere with that finding unless it  is shown to be based on no evidence or is grossly erroneous or perverse
No such attempt is made before us
On the second plea also the plaintiff s claim must  fail
The evidence led by the plaintiff relating to the cutting of 6000 logs of timber and appropriation thereof is vague and is not supported by reliable evidence
The books of account and the registers maintained by the Jagirdar were not tendered in evidence
It was said that they were burnt
The High Court has disbelieved the story that the books of account and registers were burnt and we see no reason to disagree with that finding
The plaintiff himself had no personal knowledge about the destination of the logs of timber he merely repeated what the Jagirdar s men had told him
He admitted that out of the logs of timber which were cut 4500 logs were hammer marked by the Forest Department and he was asked to remove them by the end of March 1953
The testimony of witnesses Badrinarayan PW 4 Ramlal PW 5 and Ramkesh PW 7 was found by the High Court to be unreliable
We have been taken through the record of the evidence by counsel for the plaintiff and we see no reason to disagree with the view which appealed to the High Court
The second claim must also fail
Then remain the claims for items iii and iv in the plaint
The logs of timber under these claim were admittedly not cut
There were standing trees
The relevant terms of the deed dated August 5 1949 may to appreciate the claim of the plaintiff be read Deed of agreement in respect of selling of timber of jungles of Sonpur Jagir
Deed of agreement executed by Shri Thakur Randhirshah Jagirdar of Sonpur  in favour of Bhai Ram Narayanji Mahto contractor of timber to the following effect  I the executant have already taken Rs 15000  from the person in whose favour the deed I have of agreement has been executed of entered into a contract in respect of selling timber after getting logs 2
feet or more than that in girth cut from my below mentioned 9 villages for Rs 51501 
and have Sold the same subject to the following conditions  449 9 villages timber of which has been sold by me are as follows  then follow the names of nine villages In respect of cutting 1 the executant shall cut wood at my expenses and the same will be supplied to you m the jungle
In respect of cutting wood 1 the executant shall be cutting wood from the below mentioned jungles in this way  1 I shall supply wood from the jungles of Bambani Kosami and Rajola Khapadhanna in first two years ie from August 1949 to July 1951
2 I shall supply wood from Gotikhere and Harai from August 1951 to July 1952
3 I shall supply wood from Dulhadeo Baratmari and Budena from August 1952 to July 1953
4 I shall supply wood from Sejwara Khalan from August 1953 to 1954
In respect of transport if there is any delay in transporting contractor s wood during that period the executant shall extend the time up to 6 months so as to complete the transportation
Then follows the manner in which amount of Rs 36501 was to be paid Wood sold does not include the trees on the bank of the river or padao or any such place which are prohibited to be cut according to law
The wood of those places has not been sold
Under the deed all trees standing in the forests in the nine villages were not agreed to be sold it was provided that trees with logs of 2 feet or more in girth were to be cut and the logs were to be supplied in four different periods set out in the deed
The 1 deed created by its own force no rights in the standing trees for the Jagirdar was to cut the trees at his expense and to supply the logs
450 By section 3 of the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1950 1 of 1951 msolar as it is relevant
it is provided 1 Save as otherwise provided in this Act on and from a date to be specified by a notification by the State Government in this behalf all proprietary rights in an estate mahal alienated village or alienated land as the case may be in the area specified in the notification vesting in a proprietor of such estate mahal alienated village alienated land or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor or such other person to and vest in the State for the purpose of the State free of all encumbrances
Section 4 provides insofar as it is material 1 When the notification under Sec 3 in respect of any area has been published in the gazette then notwithstanding anything contained in any contract grant or document or in any other law for the time being in force and save as otherwise provided in this Act the consequences as hereinafter set forth shall from the beginning of the date specified in such notification  ensue namely  a all rights title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land cultivable or barren grass land scrub jungle forest trees 
shall cease and be vested in the State for  purposes of the State free of all encumbrances The relevant provisions of the may also be noticed
Section 27 of the 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 with a girth not less than 2  were to 451 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 vs Hicksan1   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 severance of the thing from the land
This is clearly the effect of section 18 of the 
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 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 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
Granting that the contract was for sale of specific goods that is it was a contract for Sale of logs out of trees in the forest with a girth of two feet or more the timber had to be cut and had to be put in a deliverable state
The Jagirdar did not by the deed sell the trees of his forests
The plaintiff had no right even to cut the trees
The logs of timber agreed to be supplied had no existence as individual chattel until the trees were cut and severed from the land and logs of the specifications were separated
But before the trees were cut and the logs appropriated to the contract the estate of the Jagirdar vested in the State of Madhya Pradesh
It is true that the provisions of the  1 at p 421 452 especially sections 18 to 44 are rules of construction of contracts for determining the interest of the parties
If there be a contract that the property is to pass even before the property is put into a deliverable state the property may pass
But in the contract executed by the Jagirdar no such intention appears
It is not necessary to refer to the large number of cases cited at the Bar except a few
In Kutsell vs Timber Operators and Contractors Ltd 1 under a contract the vendors agreed to Sell and the purchasers agreed to purchase all the merchantable timber growing in a forest in the Republic of Latvia
Merchantable timber was therein defined to be all trunks and branches of trees but not seedlings and young trees of less than six inches in diameter at a height of four feet from the ground
Timber was to be  cut subject to certain conditions
After the contract was entered into the Latvian Assembly passed a law by which the forest became the property of the Latvian State and the contract stood annulled and all property and rights of vendors and purchasers in the forest were confiscated
It was held by the Court of Appeal that the contract was not a contract for the Sale of specific goods in a deliverable state within the meaning of section 18 r 1 of the Sale of Goods Act 1893 that the goods in question were neither identified nor agreed upon that it was not every tree in the forest which passed but only those complying with certain measurements not then made that the timber was not in a deliverable state until the purchasers had severed it and that they could not under the definition in the rule be bound to take delivery of an undetermined part of a tree not yet identified and accordingly the property in the timber had not passed under section 18 r 1
Several cases have arisen in  this Court in which the breach of claim to a fundamental right of the purchaser who had entered into a contract for purchasing standing trees before the enactment of the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1950 was set up
These cases may be briefly noticed
In Chhotabhai Jethabhai Patel  Company vs The State of Madhya Pradesh2 this Court held that the rights conferred upon the contractors under agreements with the proprietors of the estates before the date on which the estates vested in the State under which they were entitled to _pluck collect and carry away tender leaves to cultivate culture and acquire lam and to cut and carry away teak and timber and other species of trees were merely rights of licence and that the contractors were not proprietors nor persons having any interest in the proprietary rights through the proprietors within the meaning of the Act
The rights of the contractors were also held not to be encumbrances within the meaning of the expression free from encumbrances in section 31 1 2  453 of the Act
The contractors were held entitled to a writ against the State prohibiting the State from interfering with the rights of the contractors under the cointracts which they had entered into with the proprietors
In that case the Court held that the estate vested in the State by virtue of sections 3 and 4 of the Madhya Pradesh Act and the right to the trees also vested in the State but the State had no right to obstruct the contractors in exercise of the rights under the contracts and on that ground a writ of prohibition was issued
It was held that the contractors had no proprietary rights nor did they possess any interest in the proprietary rights through the proprietors to the trees and the leaves and on that account the rights of the contractors did not vest in the State
It was assumed without indicating the ground on which it was so assumed that the contractual obligations which were undertaken by the Jagirdars were enforceable against the State after the estate vested in it
It was observed at p 483 The petitioners are neither proprietors within the meaning of the Act nor persons having any interest in the proprietary right through the proprietors
There is no provision in the Act which extinguishes their rights in favour of the State
 But this case was dissented from in a later decision of this Court in Shrimati Shantibai vs State of Bombay  Ors1
In that case under an unregistered instrument a contractor was granted a right to take and appropriate all kinds of wood from certain forests in the Zamindari After the enactment of the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1950 all proprietary rights in land vested in the State and the contractor could no longer cut any wood
The petitioner applied to the Deputy Commissioner and obtained from him an order under section 62 of the Act permitting her to work the forest and start cutting the trees
The Divisional Forest Officer later passed an order directing that her name may be cancelled and materials cut by her forfeited
A petition for a writ was then moved in this Court
This Court held that the contractor had no right in the forest or the trees
The Court observed that if it was a right in immovable property it could not be enforced because there was no registered instrument if it was claimed that a profess prenatal was transferred by it was still unenforceable because the instrument granting the right was unregistered if it was a contract giving rise to a purely personal right assuming that the contract was property within the meaning of article 191f and article 311 of the Constitution the State had not acquired or taken possession of that property
The Court declined to follow the earlier judgment of this Court in Chhotabhai Jethabhai Patel  Company s case2
1  2  L2 Supe
CI70 17 454 In Mahadec vs The State of Bombay 1 again a similar question was raised by a contractor who had purchased the right to reove forest produce mainly tendu leaves from the forests included in the Zamindari belonging to the proprietors prior to the enactment of the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1950
The Court in that case held that the contracts were unenforceable because they were not registered and that in any event the agreements did not amount to grant of any proprietary right by the proprietors to the contractors and their remedy was not against the State because the State had not taken of such contracts or licenses
In State of Madhya Pradesh vs Yakunuddin2 the contractors  right derived from the Jagirdar prior to the enactment of the Madhya Pradesh Abolition of Proprietary Rights Estates Maltais Alienated Lands Act 1950 to cut and remove the trees was held not enforceable against the State
In all these cases there had been a partial examination of the problem in the light of a claim to an existing and enforceable fundamontal right vested in the contractor
In the first case Chhotabhai Jethabhai Patel  Company s case3 the Court held without disclosing the ground for so holding that the fundamental right of the contractor was enforceable against the State
In Shrimati Shantabai s case4 and Mahadeo s case1 the Court held that there was no infringement of any fundamental right and in Yakinuddin s case2 which reached this Court in appeal from an order held that the rights were not enforceable against the State
The present case arises
out of a suit instituted for recovery of compensation by a contractor who was prevented from enforcing his claim in respect of the forest trees under the terms of the contract entered into with the Jagirdar
The contract was one relating to sale of future goods but it was not a contract for sale of specific property in a deliverable state
Title to the logs which the plaintiff had agreed to purchase did not vest in him at the date on which the estate vested in the State of Madhya Pradesh
On that ground the plaintiff s claim to cut standing trees in the forests of Sonpur Jagir after they vested in the State was rightly negatived
The appeal fails and is dismissed with costs
RKPS Appeal dismissed
1 1959 Supp
2 S CR 339


Summary:
A Jagirdar executed a deed on August 5 1949 in favour of the appellant for the sale of logs of a specified girth to be obtained from cutting the trees in his forests
On February 19 1951 the Forest Officer of the  respondent State prevented the appellant and the Jagirdar from cutting the trees
On the coming into force of the Madhya Pradesh Act 1 of 1951 the interest of the Jagirdar in his estate vested in the respondent State
The appellant instituted a suit in June 1954 against the respondent Stateand the Jagirdar for breach of contract and claimed compensation i for logs which were cut but which he could not remove ii for logs which were cut but were stated to have been lost due to the negligence of the respondent and iii logs from the standing timber which had not been cut or could not be cut by the appellant from the jagirdar s villages
The  respondent State contested the suit on the ground inter alia that the deed could not be enforced against it because of the vesting of the Jagir under the Act in the State and that the contract created a mere personal liability against the Jagirdar
The Trial Court granted the appellant a decree for compensation under all the heads claimed at a rate per log determined by the Court
The High Court in appeal disallowed the appellant s claim under items ii and iii
In appeal to this Court by certificate it was contended on behalf of the appellant that the rate of compensation determined was inadequate that the High Court erred in disallowing compensation four the logs which were cut but were lost and that it had wrongly disallowed the claim for value of logs of timber which the appellant was entitled to but could not cut because of the restrictions imposed by the  State
HELD Dismissing the appeal i On the evidence the High Court had rightly disallowed the claim in respect of logs cut but which were stated to have been lost
ii 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 under section 18 of the the property in the thing passes in the absence of a contract to the contrary to the buyer on the severance of the thing from the land
Again under section 21 of the 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
453 D In the present case the contract by its terms was for the sale of logs out of trees in the forest with a girth of two feet or more but the timber had to be cut and had to be put in a deliverable state
Before the trees
446 were cut and the logs appropriated to the contract the estate of the Jagirdar vested in the State of Madhya Pradesh
The appellant s claim to cut standing trees in the forests of the Jagir after they vested in the State was therefore rightly negatived
456 F G Badische Anilin Fabrik vs Hickson at p 421 KurseH vs Timber Operators and Contractors Ltd  Chhotabhai Jethabhai Patel  Company vs The State of Madhya Pradesh   Shrimati Shantabat vs State of Bombay  Ors
11959 SCR 265 Mahadeo vs The State of Bombay 1959 Supp
2 SCR 339 State of Madhya Pradesh vs Yakunuddin 1963 SCR 13 referred tO