Case Summary
| Citation | Smt. Shantabai v. State of Bombay AIR 1958 SC 532: (1959) SCR 265 |
| Keywords | sec 3 TPA, sec 2(6) registration act, sec 3(26) General clauses Act, immovable property, trees, benefit arising out of land, standing timber |
| Facts | Husband of petitioner, the owner of a forest, executed an unregistered document styled as a lease in favour of his wife Shantabai, for a consideration of Rs. 26,000, for a period of 12 and a half years. As per the deed, the right was conferred upon her to enter the estate for cutting and taking out bamboo, fuel wood and teak. At the same time, she was prohibited from cutting teak plants that were under the height of one and a half feet. Madhya Pradesh Abolition of Proprietary Rights (Estate, Mahals, Alienated Lands) Act, 1950 was passed, under which all proprietary rights in the land vested in the state and petitioner was stopped from cutting any more trees. The petitioner on this violation of her right claimed compensation from the government as they ousted her from the forest from 1951 to 1955. The claim was also initially given up on the understanding that the petitioner would be allowed to work in the forests for the remaining period. She applied to the Divisional Forest Officer and asked for permission to cut trees in the forests, it was not granted to her. She filed a petition in the court under Art. 32 of the Constitution. |
| Issues | What was the nature of right created in her favour, a right in movable or immovable property? |
| Contentions | Petitioner contended that as the right granted to her was a right in standing timber, she was entitled to compensation. |
| Law Points | Whether the right granted in her favour was a right in movable or immovable property, if the right was in immovable property, then irrespective of the fact of the change in ownership, she would still be entitled to realise the right but provided it was conferred in her favour with the help of a document capable of taking effect in law. Where it was a lease for a period of 12 years it should have been executed in her favour with the help of a written, attested and registered document. If it was a right in movable property, then if the ownership changes hands, then, though the right to take the benefit as per the original contract will come to an end, but the grantee would be entitled to compensation for the rest of the time period for which she was not able to realise the right. Here, petitioner could never have succeeded if the right was in immovable property as the document on which she relied was in writing, but was neither attested nor registered. Thus, she tried to prove that the grant was in standing timber, and therefore in movable property. The court held that a right to enter upon the land of another and carry a part of the produce is an instance of profits prendre, i.e., benefit arising out of land, and therefore a grant in immovable property. Pointing out the distinction between timber trees and standing timber, the court held that the grant here was not merely of standing timber, but the grantee here was empowered to take the benefit of the soil. The execution of document in this case was not a transfer of a right to enjoy immovable property and just a license to enter the land, not for the purpose of enjoying it, but to remove something from it, that is, a portion of the soil yield. The court said: → It is evident that trees that will be fit for cutting 12 years hence will not be fit for felling now. Therefore it is not a mere sale of the trees as wood. It is more. → It is not just a right to cut a tree, but also to derive a profit from the soil itself, in the shape of nourishment in the soil that goes into the tree and make 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 choose to fell it. |
| Judgement | Here the right was spread over a period of 12 years and the intention was not to cut the trees at a reasonably early time period, and as the right was created with the help of an unregistered lease deed, Shantabai could not be granted any remedy. |
| Ratio Decidendi & Case Authority |
Full Case Details
VIVIAN BOSE, J. – 8. The petitioner’s husband, Balirambhau Doye, was the Zamindar of
Pandharpur. On April 26, 1948, he executed an unregistered document, that called itself a lease, in
favour of his wife, the petitioner. The deed gives her the right to enter upon certain areas in the
zamindari in order to cut and take out bamboos, fuel wood and teak. Certain restrictions are put on the
cutting, and the felling of certain trees is prohibited. But in the main, that is the substance of the right.
The term of the deed is from April 26, 1948, to December 26, 1960, and the consideration is Rs
26,000.
9. The petitioner says that she worked the forests till 1950. In that year the Madhya Pradesh
Abolition of Proprietary Rights (Estates, Mahals, and Alienated Lands) Act, 1950, which came into
force on January 26, 1951, was enacted.
10. Under Section 3 of that Act, all proprietary rights in the land vest in the State on and from the
date fixed in a notification issued under sub-section (1). The date fixed for the vesting in this area was
March 31, 1951. After that, the petitioner was stopped from cutting any more trees. She therefore
applied to the Deputy Commissioner, Bhandara, under Section 6(2) of the Act for validating the lease.
The Deputy Commissioner held, on August 16, 1955, that the section did not apply because it only
applied to transfers made after March 16, 1950, whereas the petitioner’s transfer was made on April
26, 1948. But, despite that, he went on to hold that the Act did not apply to transfers made before
March 16, 1950, and so leases before that could not be questioned. He also held that the lease was
genuine and ordered that the petitioner be allowed to work the forests subject to the conditions set out
in her lease and to the Rules framed under Section 218(A) of the C.P. Land Revenue Act.
11. It seems that the petitioner claimed compensation from Government for being ousted from the
forests from 1951 to 1955 but gave up the claim on the understanding that she would be allowed to
work the forests for the remaining period of the term in accordance with the Deputy Commissioner’s
order dated August 16, 1955.
12. She thereupon went to the Divisional Forest Officer at Bhandara and asked for permission to
work the forests in accordance with the above order. She applied twice and, as all the comfort she got
was a letter saying that her claim was being examined, she seems to have taken the law into her own
hands, entered the forests and started cutting the trees; or so the Divisional Forest Officer says.
13. The Divisional Forest Officer thereupon took action against her for unlawful cutting and
directed that her name be cancelled and that the cut materials be forfeited. This was on March 19,
1956. Because of this, the petitioner went up to the Government of Madhya Pradesh and made an
application dated September 27, 1956, asking that the Divisional Forest Officer be directed to give the
petitioner immediate possession and not to interfere with her rights. Then, as nothing tangible
happened, she made a petition to this Court under Article 32 of the Constitution on August 26, 1957.
14. The foundation of the petitioner’s rights is the deed of April 26, 1948. The exact nature of this
document was much canvassed before us in the arguments by both sides. It was said at various times
by one side or the other to be a contract conferring contractual rights, a transfer, a licence coupled
with a grant, that it related to movable property and that, contra, it related to immovable property. It
will be necessary, therefore, to ascertain its true nature before I proceed further.
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15. As I have said, the document calls itself a “lease deed”, but that is not conclusive because the
true nature of a document cannot be disguised by labelling it something else.
16. Clause (1) of the deed runs –
“We executed this lease deed … and which by this deed have been leased out to you in
consideration of Rs 26,000 for taking out timber, fuel and bamboos etc.”
At the end of clause (2), there is the following para:
“You No. 1 are the principal lessee, while Nos. 2 and 3 are the sub-lessees.”
Clause (3) contains a reservation in favour of the proprietor. A certain portion of the cutting was
reserved for the proprietor and the petitioner was only given rights in the remainder. The relevant
passage runs:
“Pasas 16, 17, 18 are already leased out to you in your lease. The cutting of its wood be
made by the estate itself. Thereafter, whatever stock shall remain standing; it shall be part of
your lease. Of this stock, so cut, you shall have no claim whatsoever.”
Clause (5) runs –
“Besides the above pasas the whole forest is leased out to you. Only the lease of the forest
woods is given to you.”
Clause (7) states –
“The proprietorship of the estate and yourself are (in a way) co-related and you are
managing the same and therefore in the lease itself and concerning it, you should conduct
yourself only as a lease holder explicitly…. Only in the absence of the Malik, you should look
after the estate as a Malik and only to that extent you should hold charge as such and conduct
yourself as such with respect to sub-lessees.”
The rest of this clause is –
“Without the signatures of the Malik, nothing would be held valid and acceptable,
including even your own pasas transactions….The lease under reference shall not be alterable
or alienable by anybody.” The only other clause to which reference need be made is
clause (8). It runs –
“You should not be permitted to recut the wood in the area which was once subject to the
operation of cutting, otherwise the area concerned will revert to the estate. The cutting of the
forests should be right at the land surface and there should not be left any deep furrows or
holes.”
17. I will examine the seventh clause first. The question is whether it confers any proprietary
rights or interest on the petitioner. I do not think it does. It is clumsily worded but I think that the real
meaning is this. The petitioner is the proprietor’s wife and it seems that she was accustomed to do
certain acts of management in his absence. The purpose of clause (7) is to ensure that when she acts in
that capacity she is not to have the right to make any alteration in the deed. There are no words of
transfer or conveyance and I do not think any part of the proprietary rights, or any interest in them, are
conveyed by this clause. It does not even confer rights of management. It only recites the existing
state of affairs and either curtails or clarifies powers as manager that are assumed to exist when the
proprietor is away.
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18. Although the document repeatedly calls itself a lease, it confers no rights of enjoyment in the
land. Clause (5) makes that clear, because it says –
“Only the lease of the forest woods is given to you.”
In my opinion, the document only confers a right to enter on the lands in order to cut down certain
kinds of trees and carry away the wood. To that extent the matter is covered by the decision in
Chhotabhai Jethabhai Patel & Co. v. State of Madhya Pradesh [AIR 1953 SC 108 at 110] and by
the later decision in Ananda Behera v. State of Orissa [AIR 1956 SC 17, 18 and 19] where it was
held that a transaction of this kind amounts to a licence to enter on the land coupled with a grant to cut
certain trees on it and carry away the wood. In England it is a profit a prendre because it is a grant of
the produce of the soil “like grass, or turves or trees”. See 12 Halsbury’s Laws of England (Simonds
Edn.) page 522. It is not a “transfer of a right to enjoy the immoveable property” itself (Section 105 of
the Transfer of Property Act), but a grant of a right to enter upon the land and take away a part of the
produce of the soil from it. In a lease, one enjoys the property but has no right to take it away. In a
profit a prendre one has a licence to enter on the land, not for the purpose of enjoying it, but for
removing something from it, namely, a part of the produce of the soil.
19. Much of the discussion before us centred round the Madhya Pradesh Abolition of Proprietary
Rights (Estates, Mahals, Alienated Lands) Act of 1950. But I need not consider that because this,
being a writ petition under Article 32, the petitioner must establish a fundamental right. For the
reasons given in Ananda Behera case, I would hold that she has none. This runs counter to
Chhotebhai Jethabai Patel case, but, as that was a decision of three Judges and the other five, I feel
that we are bound to follow the later case, that is to say, Ananda Behera case, especially as I think it
lays down the law aright.
20. The learned counsel for the petitioner contended that his client’s rights flowed out of a
contract and so, relying on Chhotebhai Jethabai Patel case, he contended that he was entitled to a
writ. As a matter of fact, the rights in the earlier case were held to flow from a licence and not from a
contract simpliciter but it is true that the learned Judges held that a writ petition lay.
21. Insofar as the petitioner rests her claim in contract simpliciter, I think she has no case because
of the reasons given in Ananda Behera case:
“If the petitioners’ rights are no more than the right to obtain future goods under the Sale
of Goods Act, then that is a purely personal right arising out of a contract to which the State
of Orissa is not a party and in any event a refusal to perform the contract that gives rise to that
right may amount to a breach of contract but cannot be regarded as a breach of any
fundamental right.”
To bring the claim under Article 19(1)(f) or Article 31(1) something more must be disclosed, namely,
a right to property of which one is the owner or in which one has an interest apart from a purely
contractual right. Therefore, the claim founded in contract simpliciter disappears. But, insofar as it is
founded either on the licence, or on the grant, the question turns on whether this is a grant of movable
or immoveable property. Following the decision in Ananda Behera case, I would hold that a right to
enter on land for the purpose of cutting and carrying away timber standing on it is a benefit that arises
out of land. There is no difference there between the English and the Indian law. The English law will
be found in 12 Halsbury’s Laws of England (Simonds Edn.) pp. 620-621. But that still leaves the
question whether this is movable or immovable property.
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22. Under Section 3(26) of the General Clauses Act, it would be regarded as “immoveable
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 Section 3 that standing timber is not
immovable property for the purposes of that Act and so does Section 2(6) of the Registration Act. The
question is which of these two definitions is to prevail.
23. 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 Property 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
immoveable property, even under the Transfer of Property Act, because of Section 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.
24. 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 “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 go shortly that it can already be looked upon as timber for all
practical purposes even though it is still standing. If not, it is still a tree because, unlike timber, it will
continue to draw sustenance from the soil.
25. Now, of course, a tree will continue to draw sustenance from the soil so long as it continues to
stand and live; and that physical fact of life cannot be altered by giving it another name and calling it
“standing timber”. But the amount of nourishment it takes, if it is felled at a reasonably early date, is
so negligible that it can be ignored for all practical purposes and though, theoretically, there is no
distinction between one class of tree and another, if the drawing of nourishment from the soil is the
basis of the Rule, as I hold it to be, the law is grounded, not so much on logical abstractions as on
sound and practical common-sense. It grew empiracally from instance to instance and decision to
decision until a recognisable and workable pattern emerged; and here, this is the shape it has taken.
26. The distinction, set out above, has been made in a series of Indian cases that are collected in
Mulla’s Transfer of Property Act, 4th Edn. at pp. 16 and 21. At p. 16, the learned author says —
“Standing timber are trees fit for use for building or repairing houses. This is an
exception to the general Rule that growing trees are immoveable property.”
At p. 21 he says –
“Trees and shrubs may be sold apart from the land, to be cut and removed as wood, and
in that case they are moveable property. But if the transfer includes the right to fell the trees
for a term of years, so that the transferee derives a benefit from further growth, the transfer is
treated as one of immoveable property.”
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The learned author also refers to the English law and says at page 21 –
“In English law an unconditional sale of growing trees to be cut by the purchaser, has
been held to be a sale of an interest in land; but not so if it is stipulated that they are to be
removed as soon as possible.”
27. In my opinion, the distinction is sound. Before a tree can be regarded as “standing timber” it
must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut
reasonably early. The Rule is probably grounded on generations of experience in forestry and
commerce and this part of the law may have grown out of that. It is easy to see that the tree might
otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the
growth of younger wood and spoil the forest and eventually the timber market. But however that may
be, the legal basis for the Rule is that trees that are not cut continue to draw nourishment from the soil
and that the benefit of this goes to the grantee.
28. Now how does the document in question regard this? In the first place, the duration of the
grant is twelve years. It is evident that trees that will be fit for cutting twelve years hence will not be
fit for felling now. Therefore, it is not a mere sale of the trees as wood. It is more. It is not just a right
to cut a tree but also to derive a profit from the soil itself, in the shape of the nourishment in the soil
that goes into the tree and makes 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.
29. This aspect is emphasised in clause (5) of the deed where the cutting of teak trees under 1½
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.
30. The result is that, though such trees as can be regarded as standing timber at the date of the
document, both because of their size and girth and also because of the intention to fell at an early date,
would be moveable property for the purposes of the Transfer of Property and Registration Acts, the
remaining trees that are also covered by the grant will be immoveable property, and as the total value
is Rs 26,000, the deed requires registration. Being unregistered, it passes no title or interest and,
therefore, as in Ananda Behera case the petitioner has no fundamental right which she can enforce.
31. My lord the Chief Justice and my learned Brothers prefer to leave the question whether the
deed here is a lease or a licence coupled with a grant, open because, on either view the petitioner must
fail. But we are all agreed that the petition be dismissed with costs.
