# modification the appeals are dismissed. • • Appeals dismissed . • SHRIMATI SHANTABAI v. STATE OF BOMBAY & OTHERS

- **Citation:** [1959] 1 S.C.R. 265
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** S. R. DAS c. J, Venkatarama Aiyar, s. K. DAS, A. K. Sarkar, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/modification-the-appeals-are-dismissed-appeals-dismissed-shrimati-shantabai-v-1605
- **Pages:** 14

## Headnote

Fundamental Rights, Enforcement of-Unregistered document
conferring right to cut and appropriate wood from forest land-Pro"
prietary interest vested in State by subsequent enactment-Claim
founded on rights accruing from such document, if maintainableConstitution of India, Arts. I9(I)(f), I9(I)(g)-Madhya Pradesh
Abolition of Proprietary Rights (Estates, Mahals, Alienated Larrds)
Act, r950 (No. I of I95I).
By an unregistered document the husband of the petitioner ·
granted her the right fo take and appropriate all kinds of
wood from certain forests in his Zamindary. With the passing
of the Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950, all proprietary rights in
land vested in the State under s. 3 of that Act and the
petitioner could no longer cut any wood. She applied to the
Deputy Commissioner and obtained from him an order under
s. 6(2) of the Act permitting her to work the forest and started
cutting the trees.
The Divisional Forest Officer too.k action
"
against her and passed an order directing that her name might be
cancelled and the cut materials forfeited. She .moved the State
Government against this order but to no effect. Thereafter she
applied to this Court under Art. 32 of the Constitution and contended that t.he order of Rorest Officer infringed her fundamental
fights under Arts. 19(1)(f) and 19(1)(g) :
,
Held (per curiam), that the order in question did not infringe
the ffmdamental rights of the petitioner under Arts. 19(1)(f) and
19(1)(g) and the petition must be dismissed.
n
•
•
Kapur Chand
Pokhrf!lj
v.
The Statt of
Bombay
Subba Rao j.
March 24.
•
•
266
SUPREME COURT REPORnl
.[1959]
Ananda Behera v. The State of Orissa, [r955] 2 S.C.R. 919,
Shrimal~antabai followed .
• v.
Chhotabai ]ethabai Patel and Co. v. The Stats of Madhya
State of Bombay Pradesh, [r953] S.C.R. 476, not followed.
('>' Others
Held (per Das C. J., Venkatarama Aiyar, S. K. Das and
A. K. Sarkar, JJ.), that it was not necessary to examine the document minutely and finally determine its real character for the
purpose of deciding the matter in controversy, for whatever con.-
struction might he put on it, the petition must fail. If the document purported to transfer any proprietary interest in land, it
would he ineffective both for non-registtation un.der the Registration Act and under s. 3 of the Madhya Pradesh Abolition of Proprietary Rights Act which vested such interest in the State. If
it was a profits-a-prendre that was sought to be transferred by it,
then again the document would be compulsorily registrable as a
profits-a-prendre was by its nature immoveable property. If it
was a contract that gave rise to a purely personal right, assuming that a contract was property within the meaning of Art.
19(1)(f) and 31(1) of the Constitution, the petitioner coultl not
complain as the State had not acquired or taken possession of the
contract which remained her property and she was free to dispose
of it in any way she liked. The State not being a party to that
contract would not be bound by it, and even if for some reason or
other it could be, the remedy of the petitioner lay by way of a
suit for enforcement of the contract and compensation for any
possible breach of it and no question of infringement of any
fundamental right could arise.
·
Per Bose J. The document conferred a right on the petitioner to enter on the lands in order to cut down and carry away.
not merely the standing timber, but also other trees that were
not in a fit state to be felled at once. The grant was, therefore,
not merely in respect of moveable property but immoveable
property as well. Being valued at Rs. 26,000, the document was
compulsorily registrable under the Registration Act otherwise no
title or interest could pass; and in absence of such registration
th; petitioner had no fundamental rights that could be enforced,
as held by this court in Ananda Behera's case.
Although standing timber is not immoveable property under
the Tran

## Text

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S.C.R.
~UPREME COURT REPORTS
.265
the appellant to rigorous imprisonment. Be it as it
may, as the High Court had no power to impose a sentence of rigorous imprisonment we change the sentence
from rigorous imprisonment to simple impriso.nment
for a period of one month in each case. 'Vith this
modification the appeals are dismissed.
•
•
Appeals dismissed .
•
SHRIMATI SHANTABAI
v.
STATE OF BOMBAY & OTHERS
(S. R. DAS c. J., VENKATARAMA AIYAR, s. K. DAS,
A. K. SARKAR and VIVIAN BosE JJ.)
Fundamental Rights, Enforcement of-Unregistered document
conferring right to cut and appropriate wood from forest land-Pro"
prietary interest vested in State by subsequent enactment-Claim
founded on rights accruing from such document, if maintainableConstitution of India, Arts. I9(I)(f), I9(I)(g)-Madhya Pradesh
Abolition of Proprietary Rights (Estates, Mahals, Alienated Larrds)
Act, r950 (No. I of I95I).
By an unregistered document the husband of the petitioner ·
granted her the right fo take and appropriate all kinds of
wood from certain forests in his Zamindary. With the passing
of the Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950, all proprietary rights in
land vested in the State under s. 3 of that Act and the
petitioner could no longer cut any wood. She applied to the
Deputy Commissioner and obtained from him an order under
s. 6(2) of the Act permitting her to work the forest and started
cutting the trees.
The Divisional Forest Officer too.k action
"
against her and passed an order directing that her name might be
cancelled and the cut materials forfeited. She .moved the State
Government against this order but to no effect. Thereafter she
applied to this Court under Art. 32 of the Constitution and contended that t.he order of Rorest Officer infringed her fundamental
fights under Arts. 19(1)(f) and 19(1)(g) :
,
Held (per curiam), that the order in question did not infringe
the ffmdamental rights of the petitioner under Arts. 19(1)(f) and
19(1)(g) and the petition must be dismissed.
n
•
•
Kapur Chand
Pokhrf!lj
v.
The Statt of
Bombay
Subba Rao j.
March 24.
•
•
266
SUPREME COURT REPORnl
.[1959]
Ananda Behera v. The State of Orissa, [r955] 2 S.C.R. 919,
Shrimal~antabai followed .
• v.
Chhotabai ]ethabai Patel and Co. v. The Stats of Madhya
State of Bombay Pradesh, [r953] S.C.R. 476, not followed.
('>' Others
Held (per Das C. J., Venkatarama Aiyar, S. K. Das and
A. K. Sarkar, JJ.), that it was not necessary to examine the document minutely and finally determine its real character for the
purpose of deciding the matter in controversy, for whatever con.-
struction might he put on it, the petition must fail. If the document purported to transfer any proprietary interest in land, it
would he ineffective both for non-registtation un.der the Registration Act and under s. 3 of the Madhya Pradesh Abolition of Proprietary Rights Act which vested such interest in the State. If
it was a profits-a-prendre that was sought to be transferred by it,
then again the document would be compulsorily registrable as a
profits-a-prendre was by its nature immoveable property. If it
was a contract that gave rise to a purely personal right, assuming that a contract was property within the meaning of Art.
19(1)(f) and 31(1) of the Constitution, the petitioner coultl not
complain as the State had not acquired or taken possession of the
contract which remained her property and she was free to dispose
of it in any way she liked. The State not being a party to that
contract would not be bound by it, and even if for some reason or
other it could be, the remedy of the petitioner lay by way of a
suit for enforcement of the contract and compensation for any
possible breach of it and no question of infringement of any
fundamental right could arise.
·
Per Bose J. The document conferred a right on the petitioner to enter on the lands in order to cut down and carry away.
not merely the standing timber, but also other trees that were
not in a fit state to be felled at once. The grant was, therefore,
not merely in respect of moveable property but immoveable
property as well. Being valued at Rs. 26,000, the document was
compulsorily registrable under the Registration Act otherwise no
title or interest could pass; and in absence of such registration
th; petitioner had no fundamental rights that could be enforced,
as held by this court in Ananda Behera's case.
Although standing timber is not immoveable property under
the Transfer of Property Act or the Registration Act, trees attached ..,
to the earth which are immoveable property under s. 3(26) of the
General Clauses !\ct, as also•· 2(6) of the Registration Act, must
be so under the Transfer of Property Act as well.
ORiGINAL JURISDICTION: Petition No. 104 of 1957.
Petition under Article 32 of the Constitution for the
enforcement of fundamental rights.
'
R. V. S. Mani, for the petitioner.
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S.C.R ..
&UPREME COURT REPORTS
267
H. N.' Sanyal, Additional Solicitor-General of India,
i95s
R. Ganapathy Iy· er and R. H. . Dhebar, for respondents "'h .
1. ''h
1 b .
l\.T
.
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v
rima i
...., an u a~
.PWS. 1-3. " ·
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y .
. N. N. Keshwani, for I. N. Shroff, for respondent State of BQmbay
N.
4
· · · · ·
·
6' Others
o. .
.
i958. March 24.
The Judginent of Das . C. J.
, Yenkatarama Aiyar, S. K: Das and Sarkar JJ. was
deliyered by Das C. J. Bose J. deUvered a separate
Judgment..
·
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DAS C. J.~ We ·have had the advantage of perusDas c. J.
ing the judgment prepared by our learned Brother
Bose J. which he will presently read. While we
agree with him that this applicat~on must be dismissed,
we would prefer to base our decision on reasons slightly
different from those adopted by our learned Brother.
The• relevant ·facts will be found fully set out by him
in his judgment.
,
The petitioner has come up before us on an application under Art. 32 of the Constitution praying ·for
setting aside the 6rder made by the respondent No. 3
on March· 19, 1956, directing the'.petitioner to stop the
cutting of forest wood and for a writ; order or direction
to the respondents •not to interfere in any .manner
whatever with the rights of the petitioner to enter the
forests, appoint her ·agents, obtain renewal passes,
manufacture charcoal and to exercise other .. rights
mentioned in the petition.
·
·
Since the application is under Art. 32 of the Constitution, the petitioner must make out that there has been
an infringement of some fundamental right claimed by
her. ·The petitioner's grievance is that the offending
order has infringed her fundamental right under
,
Art. 19(l)(f) and 19(1)(g).
She claims to. have derived
the fundamental rights, which are alleged to have been
infringed, from a document dated April 26, 1948,
whereby her husband Shri · Balirambhau Doye, the
proprietor of certain torests in eight several Tehsils,
granted to her the right to take and appropriate ;all
kinc\s of wood-building wood, .fuel wood and. bam.
boos, etc.-from the said forests for a: period from the
,. L ' I
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268
SUPREME COURT REPORT~
[1959]
'958
date of the document up to December 26, 1960. The
S.h .
,-:--Sh
1 b . terms of the document have been sufficiently set out
rima 1
au a a1 •
,
v.
m the Judgment to be presently delivered by Bose J.
•
s1ate'<Jf Bombay and need not be set out here. The petitioner has .paid
& Others
Rs. 26,000 as consideration for the rights granted to
her. The genuineness of this document and the good
Da' c. J.
faith of the parties thereto have not been questioned.
The document, however, has not been registered under.
the Indian Registration Act.
The nature of the rights claimed by the petitioner
has to be ascertained on a proper interpretation of the
aforesaid document. We do not consider it necessary
to examine or analyse the document minutely or to
finally determine what we may regard as the true
meaning and effect thereof, for, as will be presently
seen, whatever construction be put on this document,
the petitioner cannot complain of the breach of a~ of
her fundamental rights.
If the document is construed as conveying to her any
part or share in the proprietary right of the grantor,
then, not being registered under the Indian Registra.
tion Act, the document does not affect the immoveable
property or give her any right to any share or interest
in the immoveable property. Assuming that she had
acquired a share or interest in the proprietary right in
spite of the· document not having been registered, even
then that right has vested in the State under s. 3 of the
Madhya Pradesh Abolition of Proprietary Rights
(Estates, Mahals, Alienated Lands) Act, 1950, and she
may in that case only claim compensation if any is
payable to her under the Act. If the document is
con.strued as purely a license granted to her to enter
upon the land, then that license must be taken to have
become extinguished as soon ·as the grantor's proprie.
tary rights in the land vested in the State under s. 3
of the Act. If.the document is construed as a license
coupled with a grant, then the right acquired by her
would be either in the nature of s11me profits-a-prendre
which, being an inter(;)st in land, is immoveable property or a purely personal right under a ' contract.. If
the document is construed as having given her a profits-a-prendre which is an interest in la;id, then also
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S.C.R.
~UPREME COURT REPORTS
269
the document will not affect the immoveable property
I958
and will not operate to transmit to the petitioner any Shrimati Shantabai
such profits-a-preridre. which is in the nature of
v.
immoveable property, as the document has not been State of Bombay
registered under the Indian Registration Act, as has
& Others
been held in Ananda Behera v. The State of Orissa (1).
If it is a purely personal right, then such right will
nave no higher efficacy than a right acquired under a
contract. If, therefore, the document is construed as
a matter of contra~t, then assuming but without
deciding that a contract is a property within Arts.
19(l)(f) or 31(1) of the Constitution, she cannot complain, for the State has not acquired or taken possession
of her contract in any way. The State is not a party
to the contract and claims no benefit under it. The
petitioner is still the owner and is still in possession of
tha11 contract, regarded as her property, and she can
hold it or dispose of it as she likes and if she can find
a purchaser. The petitioner. is free to sue the grantor
upon that contract and recover damages by way of
compensation. The State is not a party to the contract
and is not bound by the contract and accordingly
acknowledges no ·liability under the contract which
being purely personal does not ruri with the land. .If
the petitioner maintains that, by some process not
quite apparent, the State is also bound by that contract,
even then she, as the owner of that contract, can only
seek to enforce the contract in the ordinary way and
sue the State if she be so advised, as to which we say
nothing, and claim whatever damages or compensation
she may be entitled to for the alleged breach of it.
This aspect of the matter does not appear to have been
brought to the notice· of this Court when it decided the
case of Ohhotabai Jethabai Patel and Co. v. The State of
Madhya Pradesh (2) and had it been so done, we have
no doubt that case would not have beelf decided in the
way it was done.
·
For the reasons stated above, whatever rights, if
any, may have accrued to the petitioner under that
document on any of the several interpretations noted
above, she cannot complain of the infringement by the
(i) (1955] 2 S.C,,R. 919,
(2) [1953] S.C.R. 476.
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Das C. ].
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270
SUPREME COURT REPORTS
[1959]
zgsS
State of any fundamental right for the enforcement of
--
. which alone a petition under Art. 32 is maintainable.
Shrimati .~hantabai We, therefore, agree that this petition should be disState :J" Bombay missed with costs.
& Others
BosE J.-This is a writ petition under Art. 32 of
Bose ].
the Constitution in which the petitioner claims that
her fundamental right to cut and collect timber in the
forests in question has been infringed.
•
The petitioner's husband, Balirambhau Doye, was
the Zamindar of Pandharpur. cfn April 26, 1948, he
executed an unregistered document, that calkid 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 prohibit;ed.
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.
The petitioner says that she worked the forests till
1950.
In that year the Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals, Alienated Lands)
Ac!, 1950, which came into force on January 26, 1951,
was enacted.
Under s. 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-s. (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 Commi~sioner, Bhandara, under s. 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 ap~ly 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 conditi?ns set out in
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S.C.R.
~UPREME COURT REPORTS
271
her lease and to the rules framed under s. 218(A) of
the C. P. Land Revenue Act.
· Shrimati Shantabai
. It seems that the petitioner claimed compensation
"·
from Government for being ousted from the forests Stat• 0! Bombay
from 1951 to 1955 but gave up the claim on the under-
& Others
standing that she would be allowed to work the forests
Base 1 .
for the remaining period of the term in accord-
•ance with the Deputy Commissioner's order \dated
August 16, 1955.
She thereupon wel!t to the. Divisional Forest Officer
at Bhandara and asked for p<M"mission 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 Divi- ·
sional ]'orestOfficer says.
The Divisional Forest Officer thereupon took action
against her for unlawful cutting and directed that her
name be cancelled and that the c.ut 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 Art. 32 of the Constitution on August 26, 1957.
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 moveable property and that, contra, it
related toimmoveable property. It will be necessary
therefore, to ascertain its true nature before I proceed
further.
. , .. ·" ·
As I have said, the document calls itself a "lease
deed", but that is not conclusive because the true
~ature of.a document cannot be disguised by labelling
it somethmg else.
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272
SUPREME COURT REPORTS
[1959]
1958
Clause ( 1) of the deed runs--
'h,imat;-;,,antabai
"We executed this lease deed ... and which by this
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deed have been leased out to you in consideration of
State of Bombay Rs. 26,000 for taking out timber, fuel and bamboos
b Others
etc."
Bose J.
At the end-of clause (2), there is the following paragraph:
"You No. 1 are the principal lessee, while Nos. !!
and 3 are the sub-lessees."
Clause (3) contains a reservatton 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 bj 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 for est 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 .
orrly to that extent you should hold charge as such
and conduct yourself as such with respect to sublessees."
The rest of this clause is-
" Withoue 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 any.
body."
The only other clause to which reference need be
made is cla,use (8). It runs-
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S.O.R.
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273
"You should not be permitted to re cut the >vood
z958
in the area which was once subject to the operation of5h . ~ b .
.
h
.
h
d
.11 ·
rimali S11awa ai
cuttmg, ot erw1se t e area concerne
w1 . rev.ert to ·
v.
•
the estate. The cutting of tl:i.e forests should be right State of Bombay
at the land surface and there should not be left any
& Others
deep furrows or holes."
I will examfoe the seventh clause first.
The quesBw J. ·
ti.on 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 1 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.
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 doctiment 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
JethabhaiPatel &: Co. v. The State of Madhya Pradesh (1 ),
and by the later decision in Ananda Behera v. The
, State of Orissa (2), 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 thtl soil
" like grass, or turves or trees ".· See 12 Halsbury's
Law~ of England (Simonds Edition) page 522, Note (m).
(1) [1<)'53] S.C.R. 476, 483.
(2) [1955] 2.S.C.R. 919, 922, 923.
35
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SUPREME COURT REPORTS
[1959)
r958
It is not a " transfer of a right to enjoy the immove-
. -. -
. able property" itself (s. 105 of the Transfer of ProShnm~t• Shantabai perty Act), but a grant of a right to enter upon the
v.
·
land and take away a part of the produce of the soil
Slate of Bo1nba.y
&- others
from it. In a lease, one enjoys the property but has
Bost].
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.
Much of the discussion before \ls centred round the
Madhyjl' 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 Art. 32, the petitioner must establish a
fundamental right. For the reasons given in Ananda
Behera's case (1), I would hold that she has none. This
runs counter to Chhotebhai Jethabhai Patel's case(2);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's case (1), especially as I
think it lays down the law aright.
The learned counsel for the petitioner contended
that his client's rights flowed out of a contract and so,
reiying on Chhotebhai J ethabhai Patel's 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
(see page 483) but it is true that the learned Judges
,~
held that a writ petition lay.
. ·•
In so far as the petitioner rests her claim in contract
siip.pliciter, I think she has no -case because of the
reasons given in Ananda Behera's case (1):
"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 Art. 19(l)(f) or Art. 31(1)
(1) [1955] 2 S.C.R. 919.
(2) [1955] S.C.R. 476 .
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S.C.R.
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275
something more must be disclosed, namely, a right to
Ig58
Property of which one is the owner or in which one 5 , .
~S-h
b .
.
l . h
1irnnati
anta at
has an mterest apart from a purely contractua rig t.
v.
Therefore, the claim founded in contract simpliciter 'state of Bombay
disappears.
But, in so far as it is founded either on
& Others
the· licence, or on the grant, the question turns on
whether this is a grant of moveable or immovable property.
Following the decision in Ananda Behera's
case (1 ), 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 Edition) pages 620 and 621.
But that still leaves the question whether this is
moveable or immoveable property.
U~der 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 sa,ys 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
Property Act does not define immoveable property
beyond saying that it does not include " standing timber, growing crops or grass", trees attached to eai'th
(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 £imber
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.
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SUPREME COURT REPORTS
[1959]
'958
"attached to the earth"; and it seems to me that the
"'h .
t. Sh
t b . distinction must lie in the difference between a tree and
~ rima t
an a at ,
.
.
.
, v.
timber. It 18 to be noted that the exclusion is only of
State of Bombay " standing timber " and not of" timber trees".
& Others
Timber is well enough known to be-
" wood suitable for building houses, bridges, ships
Bose J.
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. If not, it is
still a tree because, unlike timber, it will continue to
draw sustenance from the soil.
Now, of course, a tree will continue to draw sustenance from the soil so long as it continues to S'tand
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 pur-
' poses and though, theoretfoally, 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 commonsense. It grew empirically from instance to instance
and decision to decision until a recognisable and workable pattern emerged; and here, this is the shape it
has taken.
'rhe distinction, set out above, has been made in a
series of Indian cases that are collected in Mulla's
Transfer of Property Act, 4th edition, at pages 16 and
21.
At page 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 tJ:iat growing trees are immoveable property."
At page 21 he says-
" Trees and shrubs may be sold apart frbrn the
land, to be cut and removed as wood, and in tha.t case
they are moveable property.
But ,if the ttansfer
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S.C.R. ·
~UPREME COURT REPORTS
277
includes theright to fell the trees for a term of years,
r95a
so that the transferee derives a benefit from further Sh .
,-:--Sh
1 b •
.
rima i
an a a1
growth, the transfer is treated as one of immoveable
v.
property."
State of Pombay
The learned author also refers to the English law and
~ Others
says at page 21-
.
·
"In English law1an 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 4f)moved as soon as possible."
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 event,ually thetimber 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.
·
•
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 itsclf, in
the shape of the nourishment in the soil thatjgoes into
the tree and makes it grow till it is of a size and age
fit for felling as timber; an~ if already of that size, in
order to enable it to continue to live ~ill the petitioner
chooses to fell it.
This aspect is elllphasised in clause (5) of the deed
where the cutting of teak trees under 1 ! 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
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Bo~t J.
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278
SUPitEME COURT REPORT~
[1959]
r958
third cutting. As regards trees that could be cut at
S '· .
1-:--Sh
t b . once, there is no obligation to do so.
They can be left
, .. nma i
an a ai
.
.
.
. .
· v.
- standmg till such time as the :pet1t10ner chooses to fell
State •! Bombay them. That means that they/ are not to be converted
<>- Others
into timber at a reasonably early date and that the
Bose J.
,
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 me~t. It follows that
the grant is not only of standing t~mber 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 eveIJ( though they
are of the required age and growth. Such trees canflot
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.
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 Itegistration Acts, the remaining trees
that are also covered by the grant will be immoveable
property J and as the total value is Rs. 26,000, the deed
requires tegistration. Being unregistered, it passes no
title ~r interest and, therefore, as in Ananda Behera's
case (1) the petitioner has no fundamental right which
she can enforce.
My lord the Chief Justice and my learned brothers
prefer to leave too question whether the deed here is a
lease or a licence coupled with a grant, open because,
on either view the petitioner must fitil.
But we are all
agreed that the petition be dismissed with costs.
Petition dismissed.'
(r) [1955] 2 S.C.R. 919 .
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