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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.

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."

'' (6) 'timber' includes trees when they have fallen or have been felled, and all wood whether cut up or fashioned or hollowed out for any purpose or not; and (7) 'tree' includes palms, bamboos, stumps, brush-wood and canes."

28. The above references would indicate that the word "timber" applies to the wood not only when it stands in the form of a tree but also after the tree is cut and felled down. Once, however, the tree is cut, the fallen tree is not a standing tree. It becomes movable property and there can be no dispute about it. The doubt only arises if the tree continues to stand. The term "stand", therefore, appears to have been used as opposed to the term "fallen". The above reference would further indicate that the term "timber" embraces within itself two ideas. The first is that all trees, the wood of which can be used for building or for other purposes, do not become timber until they have attained a certain age. Even a tree the wood of which is primarily used for building does not become timber until it has attained a certain age and standard so as to make its wood fit for the purposes for which timber is vised. In the present case, it is argued that mm and shisham trees are primarily trees the wood of which is used for building purposes. In order, however, that even these trees should be called timber, they should have attained a certain age and standard.

29. The second aspect of the matter is that the term "timber'' connotes such trees only the wood of which is meant to be cut and used for certain particular purposes. But the intentions appear to be necessary. Mere intention to cut the tree immediately or reasonably early is not enough. If, for example, the intention is to cut the tree and to convert it into charcoal or to use it as fire wood or to convert it into saw dust, then also the tree is not being dealt with as timber. Thus, while the first aspect indicates a negative intention on the part of the transferee, namely, an intention not to keep the tree attached to the earth, the second aspect indicates a positive intention, namely, to use the wood of the tree for certain Specified purposes for which timber is used, after its detachment from the earth. Thus, for example, if a nim or shisham tree, which has attained such an age and standard as to be called a timber tree, is sold in order that its wood might be burnt or it might be converted into charcoal or saw dust, it is not being dealt with as timber.