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Under s. 3 (26) of the General Clauses Act, it would be regarded as " immovable property " because it is a benefit that arises out of the land and also because trees are attached to the earth. On the other hand, the Transfer of Property Act says in s. 3 that standing timber is not immoveable property for the purposes of that Act and so does s. 2 (6) of the Registration Act. The question is which of these two definitions is to prevail.

Now it will be observed that " trees " are regarded as immoveable property because they are attached to or rooted in the earth. Section 2(6) of the Registration Act expressly says so and, though the Transfer of Pro party Act does not define immoveable property beyond saying that it does not include " standing timber, growing crops or grass ", trees attached to earth (except standing timber), are immovable property, even under the Transfer of Property Act, because of s. 3 (26) of the General Clauses Act. In the absence of a special definition, the general definition must prevail. Therefore, trees (except standing timber) are immoveable property.

Now, what is the difference between standing timber and a tree ? It is clear that there must be a distinction because the Transfer of Property Act draws one in the definitions of " immoveable property " and (1) [1955] 2 S.C.R. 919.

" attached to the earth " ; and it seems to me that the distinction must lie in the difference between a tree and timber. It is to be noted that the exclusion is only of standing timber " and not of " timber trees".

Timber is well enough known to be-

" wood suitable for building houses, bridges, ships etc., whether on the tree or cut and seasoned. (Webster's Collegiate Dictionary).

Therefore, " standing timber " must be a tree that is in a state fit for these purposes and, further, a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still standing. I? not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil.

-from the soil itself, in the shape of the nourishment in the soil that goes into the tree and maker, it grow till it is of a size and age fit for felling as timber; and, if already of that size, in order to enable it to continue to live till the petitioner chooses to fell it. This aspect is emphasised in clause (5) of the deed where the cutting of teak trees under 1/2 feet is prohibited. But, as soon as they reach that girth within the twelve years, they can be felled. And clause (4) speaks of a first cutting and a second cutting and a third cutting. As regards trees that could be cut at once, there is no obligation to do so. They can be left standing till such time as the petitioner chooses to fell them. That means that they are not to be converted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil; in other words, they are to be regarded as trees and not as timber that is standing and is about to be cut and used for the purposes for which timber is meant. It follows that the grant is not only of standing timber but also of trees that are not in a fit state to be felled at once but which are to be felled gradually as they attain the required girth in the course of the twelve years;. and further, of trees that the petitioner is not required to fell and convert into timber at once even though they are of the required age and growth. Such trees cannot be regarded as timber that happens to be standing because timber, as such, does not draw nourishment from the soil. If, therefore, they can be left for an appreciable length of time, they must be regarded as trees and not as timber. The difference lies there.