# Thi Stat• of Madras and anothu v. V. Srinivcstt Ayyangar Vmkatarama Ayyar]

- **Citation:** [1955] 2 S.C.R. 919
- **Court:** Supreme Court of India
- **Decided:** 1953-09-24
- **Bench:** S. R. DAs, AcnNG C. J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thi-stat-of-madras-and-anothu-v-v-srinivcstt-ayyangar-vmkatarama-ayyar-1269
- **Pages:** 6

## Headnote

VIVIAN
BosE,
]AGANNADHADAS,
JAFF.R
IM.'\M and
CHANDRASEKHARA
AIYAR JJ.]
Ft;ndamental Rights, Enforcement of-Oral sale of fishery rights
for future years by owner of estate before it vested in the State by legislation-Nature of such rights-Profit a prendre, if immovable
property requiring registered imtrument for transfer-Such sale, if creates any right to property-Non-recognition by the
State, if transgresses any fundamental 1·ights-Constitution of India, Arts. 19(1)
(/), 31(1)-0rissa Estates Abolition Act, 1951 (Orissa Act I of 1952)
-Transfer of Property Act (IV of 1882), s. 54.
1955
Thi Stat• of
Madras and
anothu
v.
V. Srinivcstt
Ayyangar
Vmkatarama
Ayyar].
1955
Octob., 2 7.
1955
Ananda Behera
and anathtr
v.
The State of Orissa
and another
920
SUPREME COURT REPORTS
[1955]
The petitioners obtained oral licenses for catching and
appropriating fish fron1 specified sections of the Chilka Lake from its proprietor,
t!~e ]~aja of Parikud, on payn1ent of heavy sums and obtained
receipts in accordance with the prevailing practice. This was before
the passinz of the Orissa Estates Abolition Act of 1951 by which
ownership of the estate vested in the State of Orissa.
The licenses,
however, were in respect of years
subscriuent to such vesting. The
State of Orissa refused to
recognise
them and \Vas seeking to re~
au'.::tion the rights of fishery. The petitioners contended that it had
thereby infringed or was abo~t to infringe their fu0damental rights
under Arts. lY(l)(f) and 31(1) of the Constitution and claimed that
the tronsactions being sales of future goods, namely, the fish, the Act
which
•vas
confined to imtnovable
property had
no application.
Held, that the right
sought to be acquired by the
petitioners by
their several
purchases was not in respect
of any future goods as
claimed by the;n but was a license to enter on the land coupled with
a grant to catch and carry away the fish, in other i;vords, a profit a
prendre \vhich is imn1ovable property
\Vithin the meaning of the
Transfer of Property Act read with s. 3(25) of the General Clauses
Act.
Accordingly s. 54 of the former Act applies.
That as the sale of the profit a prendre in the present case was
valued at n1ore than one hundred rupees
and was effected without
\vriting and registration it contravened s. 54 of the Transfer of Property Act, and so no title or interest therein passed to the petitioners
and consequently, they had no fundamental rights to enforce.
Fir1n Chhotabhai Jethahai Patel & Co. v. The State of Madhya
Pradesh, ( [ 1953 J S.C.R. 476), distinguished and held inapplicable.
That it \~ras not necessary in the present case to decide whether
the contract \vas property \Vithin the 1l1eaning of Arts. 19(1)(£) and
31 ( 1 ), but assuming it to be so,
the State has not taken such pro~
perty away from the petitioners or prevented them from acquiring,
holding or disposing '-of it.
The
State merely refuses to recognise
the contract and refuses to consider itself bound by it.
That may
give a cause of action for a suit on the contract but no fundamental
right arises as the State has
qot
confiscated or acquired or taken
possession of the contract as such by clai1ning any benefits under it.
ORIGINAL JuRISDICTION : Petition No. 286 of 1955.
Under Article 32 of the Constitution for the enforcement of Fundamental Rights.
H. Mahapatra and G. C. Mathur, for the peti-
. tioners.
C K. Daphtary, Solicitor-General for India, (Porus
A. Mehta and P. G. Gokhple, with him), for respondent No. L
·
..
2S.C.R.
SUPREME COURT REPORTS
921
1955.
October
27.
The

## Text

2S.C.R.
SUPREME COURT REPORTS
919
Act that the tenants became entitled to occupancy
rights, the inamdars would, on notification, be free to
eject tenants. and settll:'. their own terms with them.
\Ne cannot accede to a contention which results not
merely in the frustration of the object of the Act but
further produces
consequences,
the
reverse
of
what
were intended. On the other hand, the contention of
the appellant that minor inams fall outside section 20
and would vest straightaway in the State under section 3 (b) will have the effect of extinguishing the
rights of the inamdars, and enabling the State to issue
ryotwari
pattas
to
the tenants
in oceupation. We
prefer to accept this contention, as it fully effectuates
the intention of the legislature. In the result, we must
hold that the one-sixteenth
portion of the village
of
Karuppur forming a darmila inam will vest in the
Government under section 3 (b) of the Act, and that
the only right of the inamdars is to share in the compensation under the terms of the Act. The petition
of the respondent in so far as it relates to this inam
must be dismissed.
This appeal is accordingly allowed, and in accordance
wit~1 the terms of the
certificate
granting leave,
the appellant will pay the costs of the respondent in
this Court. The parties will be:.ir their own costs in
the court below.
ANANDA BEHERA AND ANOTHER
v.
THE STATE OF ORISSA AND ANOTHER
[S. R. DAs, AcnNG C. J.,
VIVIAN
BosE,
]AGANNADHADAS,
JAFF.R
IM.'\M and
CHANDRASEKHARA
AIYAR JJ.]
Ft;ndamental Rights, Enforcement of-Oral sale of fishery rights
for future years by owner of estate before it vested in the State by legislation-Nature of such rights-Profit a prendre, if immovable
property requiring registered imtrument for transfer-Such sale, if creates any right to property-Non-recognition by the
State, if transgresses any fundamental 1·ights-Constitution of India, Arts. 19(1)
(/), 31(1)-0rissa Estates Abolition Act, 1951 (Orissa Act I of 1952)
-Transfer of Property Act (IV of 1882), s. 54.
1955
Thi Stat• of
Madras and
anothu
v.
V. Srinivcstt
Ayyangar
Vmkatarama
Ayyar].
1955
Octob., 2 7.
1955
Ananda Behera
and anathtr
v.
The State of Orissa
and another
920
SUPREME COURT REPORTS
[1955]
The petitioners obtained oral licenses for catching and
appropriating fish fron1 specified sections of the Chilka Lake from its proprietor,
t!~e ]~aja of Parikud, on payn1ent of heavy sums and obtained
receipts in accordance with the prevailing practice. This was before
the passinz of the Orissa Estates Abolition Act of 1951 by which
ownership of the estate vested in the State of Orissa.
The licenses,
however, were in respect of years
subscriuent to such vesting. The
State of Orissa refused to
recognise
them and \Vas seeking to re~
au'.::tion the rights of fishery. The petitioners contended that it had
thereby infringed or was abo~t to infringe their fu0damental rights
under Arts. lY(l)(f) and 31(1) of the Constitution and claimed that
the tronsactions being sales of future goods, namely, the fish, the Act
which
•vas
confined to imtnovable
property had
no application.
Held, that the right
sought to be acquired by the
petitioners by
their several
purchases was not in respect
of any future goods as
claimed by the;n but was a license to enter on the land coupled with
a grant to catch and carry away the fish, in other i;vords, a profit a
prendre \vhich is imn1ovable property
\Vithin the meaning of the
Transfer of Property Act read with s. 3(25) of the General Clauses
Act.
Accordingly s. 54 of the former Act applies.
That as the sale of the profit a prendre in the present case was
valued at n1ore than one hundred rupees
and was effected without
\vriting and registration it contravened s. 54 of the Transfer of Property Act, and so no title or interest therein passed to the petitioners
and consequently, they had no fundamental rights to enforce.
Fir1n Chhotabhai Jethahai Patel & Co. v. The State of Madhya
Pradesh, ( [ 1953 J S.C.R. 476), distinguished and held inapplicable.
That it \~ras not necessary in the present case to decide whether
the contract \vas property \Vithin the 1l1eaning of Arts. 19(1)(£) and
31 ( 1 ), but assuming it to be so,
the State has not taken such pro~
perty away from the petitioners or prevented them from acquiring,
holding or disposing '-of it.
The
State merely refuses to recognise
the contract and refuses to consider itself bound by it.
That may
give a cause of action for a suit on the contract but no fundamental
right arises as the State has
qot
confiscated or acquired or taken
possession of the contract as such by clai1ning any benefits under it.
ORIGINAL JuRISDICTION : Petition No. 286 of 1955.
Under Article 32 of the Constitution for the enforcement of Fundamental Rights.
H. Mahapatra and G. C. Mathur, for the peti-
. tioners.
C K. Daphtary, Solicitor-General for India, (Porus
A. Mehta and P. G. Gokhple, with him), for respondent No. L
·
..
2S.C.R.
SUPREME COURT REPORTS
921
1955.
October
27.
The
Judgment
of the Court
was delivered hy
BosE J.-This jurlgment will also govern Petitions
Nos. 287, 288, 289 and 304 of 1955.
We will set
out
the facts
in Petition No. 286 of 1955. The others
follow the same pattern.
The dispute is about fishery rights in the Chilka
lake which is situate
in what was once the estate of
the · Raia of Parikud. This estate vested in the State
of Orissa under the Orissa Estates Abolition Act, 1951
(Orissa Act I of 1952) on 24-9-1953 and has now ceased
to exist in its original form.
The Act came into force
on 9-2-1952.
The further facts are set out in paragraphs 2 and
3 of the petition in the following terms :
"That the
petitioners carry
on the business
of
i:atching and selling fish
particularly from fisheries
within the said lake.
That long before
the
vesting of the estate
the
petitioners had entered into contracts with the exproprietor and had obtained from the latter, on payment of heavy sums, licences
for catching and appropriating all the fish from the fisheries detailed in the
schedule given in the
accompanying affidavit and had
obtained receipts on payment in accordance with the
prevailing practice".
The lake is divided into sections and this petition
is concerned with four of them. The licenses relating
to them were purchased as follows :
1. On 30-7-50 for rights in Gerasar
Prawn for
1955-56
2. On 2-8-50 for rights in Jayamal
Prawn for
1955-56
3. On 18-9-51 for rights in Solakudi
Prawn for
1955-56
4. On 6-5-52 for rights m Jayamal
Chungudi for
(1956-57
(1957-58
(1958-59
It will be seen that though the licenses were acquired
before the estate vested in the State of Orissa they
1955
Ananda Behera
and another
v.
The Stale of Orissa
and another
1955
A.nanda Behtra
tutd anothlr
v.
The Stat• of Orissa
ad another
Bost].
922
SUPREME COURT REPORTS
[1955]
were for future years, all after the date of vesting.
The State of Orissa
refused to recognise
these
licenses and were about to re-auction the rights when
the petitioners filed the present petition seeking writs
under article 32 on the ground that their fundamental
rigius under articles 19(1)(f) and 31(1) were, or were
about to be, infringed.
The first question that we have to determine is
whether the petitioners acquired any rights or interests in "property"
by
their
several
"purchases", as
articles 19(1) (f) and 31(1) are dependent on that.
In their
petition the
petitioners
claim
that the
transactions were sales of future goods, namely of the
fish
in these
sections
of the lake, and that as fish is
moveable property Orissa Act I of 1952 is not attracted as that Act is confined to immoveable property.
We agree with the learned Solicitor-General that if
this
is
the basis of their right, then
their petition
under article 32
is mis.conceived because until any fish
is
actually
caught the petitioners
would not acquire
any property in it.
There can be no doubt that the lake is immoveable
property and that it formed part of the Raja's
estate.
As such it vested in the State of Orissa when the
notification
was
issued
under
the Act and
with it
vested the right that all owners of land have, to bar
access to their land and the right
to regu1.ate, control
and sell the fisheries
on it:
If the
petitioners'
rights
are no 1no··e t1"m the right to obtain future goods
under the Sale of Gooch Act, then that is a purely
personJ.1i-1gl1t
::irising out of ~ contract
to \vhich the
State of Orissa is not a party and in any event a
re!~usal to perfor1n the
co~1tract tl1at gives rise to that
right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right.
But though that is how the matter is put in the petition, we do not think that is
a proper approach to
this case.
The facts disclosed in paragraph 3 of the petition
make it clear that what was sold was the right to
catch and carry away fish in specific sections of the
lake over a specified future period.
That amounts to
2S.C.R.
SUPREME COURT REPORTS
923
a license to enter on the land coupled with a grant to
catch and ,carry away the fish, that is to say, it is a
profit a prendre : see 11 Halsbury's Laws
of England,
(Hailsham Edition), pages 382 and 383. In England
this is regarded as an interest in land ( 11 Halsbury's
Laws of England, page 387) because it is a right to
take some profit of the soil for the use of the owner
of the right (page 382). In India it is regarded as a
benefit that arises out of the land and as such is immoveable property.
Section 3(26) of the General Clauses Act defines
"immoveable
property"
as
including
benefits
that
arise out of the land. The Transfer of Property Act
does not define the term except to say that immoveable property does not include standing timber, growing crops or grass. As fish do not come under that
category
the definition in the General Clauses Act
applies and as a profit a prendre is regarded as a benefit arising out of land it follows that it is immoveable
property within the meaning of the Transfer of Property Act.
Now a "sale" is defined as a transfer of ownership
in exchange for a price paid or promised. As a profit
a prendre is immoveable property and as in this case
it was purchased for a price that was paid it requires
writing and registration because of section 54 of the
Transfer of Property Act. If a profit a prendre is regarded
as
tangible
immoveable
property, then
the
"property" in this
case was over Rs. 100 in value. If
it is intangible, then a registered instrument would be
necessary
whatever the
value. The "sales"
in
this
case were oral : there was neither writing nor registration.
That being the
case,
the
transactions
passed
no title or interest and accordingly the petitioners
have no fundamental right that they can enforce.
It is necessary to advert to Firm Chhotabhai Jethabai Patel & Co. v. The State of Madhya Pradesh(1) and
explain it because it was held there that a right to
"pluck, collect and carry away" tendu leaves does not
give the owner of the right any proprietary interest
in the land and so that sort of right was not an "en-
(!) [1953) S.C.R. 476.
4-85 S. C. India/59
1955
Ananda B11ur11
am/ anolhlr
v.
Thi Stall of Oriss11
and anolh1r
BoSI].
1955
.Atwula Bllrno
aNl anotlllr
v.
Thi Stou of Ori.rsa
ad an""6r
Bou].
924
SUPREME COURT REPORTS
[1955]
i:umbrance" within the meaning of the Madhya Pradesh Abolition of Proprietary Rights Act. But the
contract there was to "pluck, collect and carry away"
the leaves. The only kind of leaves that can be
"plucked" are those that are growing on trees and it is
evident that there must be a fresh crop of leaves at
periodic
intervals. That would make it a growing
crop and a growing crop is expressly exempted from
the definition of "immoveable property" in the Transfer of Property Act. That case is distinguishable and
does not apply here.
It was then
argued that a contract is "property''
within the meaning of articles 19(1)(f) and 31(1).
Again, we need not decide this bacause even if it be
assumed that it is that kind of property the State of
Orissa has not taken the petitioners' contract away
from them or prevented them from "acquiring, holding or disposing" of it. They are free to· sue on
it or to assign it if they want. The State merely says,
as any other person might say : "I was not a party to
that contract.
Neither
its
rights nor its
liabilities
have devolved on me and I refuse to recognise it or
to assume the obligations of either contracting party".
If the State
is wrong in its attitude that may give
rise
to a suit against it for damages for breach of
contract or possibly, (though we do not say it would),
. to a right to sue for specific performance ; but no
question under articles
19(1) (f) and 31(1) can arise
because the State has not ccnfis.cated or acquired or
taken possession of the contract as such. If it had it
would have claimed the benefits under it. It would
have taken the money that the petitioners paid to the
Raja
from the Raja or demanded it over again from
the petitioners. But it is not doing that. It simply
refuses to recognise the existence of the contract.
The petition fails and is dismissed with costs.