JUDGMENT Kaul, J. - This second appeal arises out of a suit which was instituted so far back as the 17th of December, 1934. The material facts require to be stated at some length. 2. One Jia Lal had two sons, Raghunath and Sheo Nath. Raghunath had a son Lal Behari. Sheo Nath had two sons, Avadh Behari and Sharnbhu. Avadh Behari had two sons, Ram Kumar and Sheo Kumar. On the 23rd of September, 1909, Jia Lal's sons, Raghunath and Sheo Nath, who owned a 2 annas 8 pies share in village Magrair in Unao district mortgaged it with possession with Ram Piarey and Parbhu Dayal. It was a natant n mortgage to be redeemed after 35 years This (2 annas 8 pies share of Magrair) has since been formed into a 16 anna mohal known as Mohed Sheo Nath. On the 28th of July, 1919, the old trananction of 1909 was renewed and these deeds of possessory mortgage were executed. One by Lal Behari who was entitled to an 8 annas share of Mohal Sheo Nath for a consideration of Rs. 9,500 and the other two by Avadh Behari and Shambhu, each mortgaging separately his four annas of the mohal for a consideration of Rs. 5,250. These mortgages were given for a period of 25 years. There was to be no accounting between the mortgagors and the mortgagees. No rate of interest was specified in the deed, but it was stipulated that if after the lapse of a period of 20 years from the date of these mortgages any of the mortgagors paid anything towards the debt he would be entitled to interest on such amount from the mortgagees at the rate -4-6 per cent per mensem. 3. The mortgaged property contained a forest of babul trees. In November, 1924, the mortgagees sold the babul forest to one Chandra Bali for a consideration of Rs. 4,500. The suit out of which this appeal arises was instituted by Avadh Behari, Sharnbhu and Lal Behari, the three mortgagors, for a perpetual injunction prohibiting the Defendants (that is the mortgagees and their vendee Chandra Bali) from cutting down the babul trees. They contended that under the law as well as under the terms of their mortgages the mortgagees were not entitled to cut the trees. 4. They contended that under the law as well as under the terms of their mortgages the mortgagees were not entitled to cut the trees. 4. Ram Piarey one of the original mortgagees, Sidh Nath, Chhabnath and Bishambhar, sons of the other mortgagee Parbhu and the Vendee Chandra Bali were impleaded as Defendants in this suit. The Munsif of Purwa in whose Court the suit was brought decreed the claim on the 9th of April 1935. An appeal against the decision was preferred by Krishna Gopal, son of Ram Piarey (who it appears died since the decree was passed) Sidh Nath and Bishambhar. The Respondents to this appeal were Ram Kumar and Sheo Kumar, sons of Avadh Behari (who appears to have died since) Shambhu son of Sheo Nath, Lal Behari and Chandra Bali, who was a Defendant in the trial Court. By a decree dated the 1st of May, 1940, the Additional Civil Judge of Undo, before whom the appeal came up for hearing, allowed the appeal and dismissed the suit with costs. The present appeal has been preferred against that decision by Ram Kumar, Sheo Kumar, Shambhu, son of Sheo Nath, and Lal Behari. 5. It may be mentioned that during the pendency of the appeal before the Civil Judge Lal Behari and Avadh Behari made two separate applications u/s 4 of the Encumbered Estates Act. The mortgagees who were impleaded as creditors in these applications obtained decrees u/s 14 of the Encumbered Estates Act in respect of their debts against the two landlords. The result, therefore, was that on the passing of those decrees the relationship of mortgagors and mortgagees ceased to exist between the applicant landlords and the creditors. This fact will have to be kept in view in the decision of the present appeal. 6. It was contended on behalf of the Appellants that babul trees are timber trees and a mortgagee u/s 76(e) of the Transfer of Property Act is not entitled to cut them. Cutting them, it was argued, would be an act of waste. u/s 76 of the Transfer of Property Act a mortgagee is placed under an obligation to manage the property as a person of ordinary prudence would manage it if it were his own and is expressly prohibited from any act which is destructive or permanently injurious to the property,-see Clauses (a) and (e). u/s 76 of the Transfer of Property Act a mortgagee is placed under an obligation to manage the property as a person of ordinary prudence would manage it if it were his own and is expressly prohibited from any act which is destructive or permanently injurious to the property,-see Clauses (a) and (e). Cutting of timber even though the timber be ripe for cutting and may deteriorate if left standing, is an act of waste. - See Transfer of Property by B.B. Mitra, paragraph 399, where reliance is placed on Harber v. Aplin (1886) 54 L.T. 483. It was held in Gur Prasad Singh v. Mehdi Husain 1942 O.A. 294 : A.W.R. (C.C.) 266 : O.W.N 435 by a Bench of this Court that a lessee is not entitled to cut babul trees if no such authority is given to him under his lease. It will be noticed that the language used in Section 108, which deals with the case of a lessor and a lessee,-"the lessee may use the property and its product (if any) as a person of ordinary prudence would use them if they were his own"-and that of Section 76(a) is strikingly similar. It follows therefore, that the principle applicable to the case of a lessor and a lessee would, so far as this matter is concerned, apply with equal force to the case of a mortgagor and a mortgagee. 7. Babul trees, it was contended by the Learned Counsel for the Respondents, are generally of spontaneous growth, and he tried to persuade me to hold that they do not constitute "timber". I am unable to accept this contention. 7. Babul trees, it was contended by the Learned Counsel for the Respondents, are generally of spontaneous growth, and he tried to persuade me to hold that they do not constitute "timber". I am unable to accept this contention. The term "timber" as used in commerce refers generally only to large sticks of wood, squared or capable of being squared for building houses or vessels and certain trees only having been formerly used for such purposes namely, the oak, the ash and elm, they alone were in England recognised as "timber trees"; but the numerous uses to which wood has come to be applied and the general employment of all kinds of trees for some valuable purpose has wrought a change in the general acceptation of terms in connection therewith, and, as denned by Webstor "timber", is that sort of wood which is proper for buildings, or for tools, utensils, furniture, carriages, fences, ships and the like, (See The Law Lexicon by P. Ramanath Lyer, page 1281. Referring to Fallon's New Hindustani English Dictionary we, find the following: Babul: "Acacia arabica, the wood of which is much used in making cart wheels, agricultural implements etc. and the bark is used in tanning leather, and in making wine." It is clear therefore that having regard to the uses to which it is put in this country, babul trees would come within the scope of the expression "timber". 8. Learned Counsel for the Respondents did not support the judgment of the lower appellate Court on the grounds mentioned in that decision, and I am of opinion that he was well advised in adopting that course. He based his argument on the ground that u/s 76(a) a mortgagee was entitled to manage the property as a person of ordinary prudence would manage it if it were his own, and according to him it was in the interest of the mortgagors as well as of the mortgagees that the babul trees should be cut down so that fresh trees of spontaneous growth might grow on the open land. I am unable to accept this argument. Babul is different from dhak, and babul once cut down does not grow again from the same trunk. This is not the case with dhak. 1 am satisfied that babul is "timber" and cutting it by a lessee or mortgagee amounts to an act of waste. I am unable to accept this argument. Babul is different from dhak, and babul once cut down does not grow again from the same trunk. This is not the case with dhak. 1 am satisfied that babul is "timber" and cutting it by a lessee or mortgagee amounts to an act of waste. In view of the conclusions arrived at above the appeal must be allowed. 9. In determining, however, what decree should be passed we must take notice of some facts which have happened since the decision of the appellate Court was given. It has already been stated that Avadh Behari and Lal Behari, two of the mortgagors, had applied u/s 4 of the Encumbered Estates Act and decrees in respect of the mortgage debts due by them had been passed u/s 14 of the Act. The mortgage executed by them, therefore, ceased to subsist and the relation of mortgagor and mortgagee, which was the foundation of the suit that gave rise to this appeal- no longer holds. 10. The decree of the appellate Court is, therefore, set aside and that of the trial Court restored so far as the intrest of Shambhu (Plaintiff No. 2 in the trial Court) is concerned. So far as Avadh Behari (whose interest is now represented by Ram Kumar and Sheo Kumar) and Lal Behari are concerned, as the relationship of mortgagor and mortgagee no longer subsists between them and the Respondents the claim stands dismissed. As, however, it was brought to my notice that some settlement was arrived at between Ram Kumar and Sheo Kumar on the one side, and the mortgagees on the other, the decision in this suit will not affect that settlement It was further brought to my notice by Mr Wasim that Lal Behari had also made an application to the Collector in connection with certain maters outstanding between him and the mortgagees relating to the proceedings under the Encumbered Estates Act. An appeal or revision relating to that application is still pending before the Board of Revenue. The decision in appeal will in no way affect any decision that might be given by the Board of Revenue in that matter. 12. Shambhu Appellant No. 3 shall get his costs from Respondents 1 to 3 in all the Courts. The other parties, shall bear their own costs.