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Similarly, a timber tree does not cease to be a timber tree, because its owner has no present intention of cutting or felling it. Whether a tree is a timber tree or not does not depend upon whether there exists an intention in some body to cut it or not. It cannot be said that a timber tree comes into existence only when an intention to cut it sooner or later is formed and that there is no timber tree in existence prior to the formation of such an intention. That a timber tree must be cut down in order that it fulfils its object is no justification for saying that a timber tree is a tree in respect of which there exists an intention that it should be cut down. A tree is either a timber tree or a fruit tree; a tree that is not a fruit tree must be a timber tree and a tree cannot be a fruit tree so long as there is no intention to cut it down and cannot become a timber tree as soon as such an intention is formed. I have no doubt that whether a tree is a timber tree or not depends upon its nature and the use to which it is generally put and not upon whether there is a present intention in the mind of its owner of cutting it sooner or later. In other words, the test is an objective test and not a subjective test.

8. Ramman Lal v. Rani Gopal, AIR 1916 Oudh 211, Pirthi Din v. Ram Lal, 91 Ind Cas 512 : (AIR 1926 Oudh 136), Ashloke Singh v. Bodha. Ganderi, AIR 1926 Pat 125 and District Board, Banaras v. Churhu Rai, 1956 All WR 343 : (AIR 1958 All 680) are all distinguishable, because they deal with mango trees. Mango trees would be standing timber only if they were intended to be cut down; if they were not, or could not be, intended to be cut down, they would remain fruit trees. In the first case there was a mortgage of fruit trees. If they were fruit trees, they could not be timber trees, and there was no question of any intention in regard to their being cut down. Even if they were expected to be cut down they would not be timber trees. Fruit trees are immoveable property; they are attached to the earth and are not standing timber, growing crops or grass. All discussion in the judgment about the right of a mortgagee was, I say with great respect, not strictly relevant to the question whether the trees were standing timber or not. It would seem to be rather anomalous that whether a tree is standing timber or not depends upon whether the deed transferring it is a sale deed or a mortgage deed. A tree cannot be an immoveable property if mortgaged and moveable property, if sold.

The learned Judges stressed the existence of intention to cut sooner or later, but this intention was itself derived from the nature of the trees. As I pointed out, the intention in respect of the cutting or leaving standing that is decisive is the intention not to be inferred from the nature of the trees, but the intention found to exist in respect of the trees which may be used as fruit trees or as timber trees depending upon the intention of the owner. In Pirthi Din's case, 91 Ind Cas 512 : (AIR 1926 Oudh 136) Neaves, A. J. C. followed the case of Ramman Lal, AIR 1916 Oudh 211. In the case of Ashloke the sale of a mango tree, which was not to be cut down and used as timber, and which had continued to be standing and to yield fruits for eight years at least, was held to be a sale of immoveable property. Ross, J. in the case relied upon Marshall v. Green, (1875) 1 CPD 35 in which a contract for the sale of trees which were to be cut away as soon as possible was held to be a contract for sale of chattels and not interest in land. That case is no authority for the proposition that a sale of a tree, ordinarily to be used for timber, is not a sale of chattels, just because the sale deed does not provide for the cutting of the tree. In the last case of District Board, Benaras, 1956 All WR (HC) 343: (AIR 1956 All 680), Brij Mohan Lall, J. and my brother Beg observed at page 346 (of All WR): (at p. 683 of AIR), "the nature of the tree is not the criterion to determine as to whether it is a standing timber or not. A fruit bearing tree e.g. a mango tree, will not come within the definition of timber if purchased by a person with the intention of maintaining it, allowing it to grow and using its fruits in future. But the same tree may become timber and, therefore, moveable property, if the intention of the purchaser is to cut and remove it and to use its wood for making planks or to put it to any other use for building purposes."

Kindersley, J., agreed with the same view.

43. In the case of Ram Ghulam v. Mohan Das, 1887 All WN 59 the question arose as to whether the trees were to be treated as immovable property under Schedule II, No. 132 of the Indian Limitation Act (Act V of 1877). It was held by Edge, C. J., that under Section 2(5) of the General Clauses Act (Act I of 1868) standing trees would be included in the description of immovable property as including things attached to the earth."

44. In Krishnarao v. Babaji, ILR 24 Bom 31 it was held that by the word "timber" is meant properly such trees only as are fit to be used in building and repairing houses. A mango tree, which is primarily a fruit tree, might not always come within the term. In that case it was held that the mango tree, though a fruit-bearing tree, is to be classed as a timber tree because of the local custom prevailing in that part of the country (Ratnagiri), where its wood was often used for building houses. It may be mentioned that there is hardly any discussion of law in this case. The learned Judges only confirmed the finding of fact arrived at by the lower Court based on the special custom prevailing in the local area.