Shrimati Shantabai Vs. State of Bombay
& Ors  INSC 25 (24 March 1958)
DAS, SUDHI RANJAN (CJ) AIYYAR, T.L.
VENKATARAMA DAS, S.K.
CITATION: 1958 AIR 532 1959 SCR 265
Fundamental Rights, Enforcement of
Unregistered document conferring right to cut and appropriate wood from forest
land-Proprietary interest vested in State by subsequent enactment-Claim founded
on rights accruing from such document, if maintainable -Constitution of India,
Arts. 19(1)(f), 19(1)(g)-Madhya Pradesh Abolition of Proprietary Rights
(Estates, Mahals, Alienated Lands) Act, 1950 (No. 1 of 1951).
By an unregistered document the husband of
the petitioner granted her the right to 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 took 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 the order of Forest Officer infringed her
fundamental rights under Arts. 19(i)(f) and 19(1)(g) :
Held (per curiam), that the order in question
did not infringe the fundamental rights of the petitioner under Arts. 19(1)(f)
and 19(i)(g) and the petition must be dismissed.
34 266 Ananda Behera v. The State of Orissa,
 2 S.C.R. gig, followed.
Chhotabai jethabai Patel and Co. v. The State
of Madhya Pradesh,  S.C.R. 476, not followed.
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 construction might be put on it, the
petition must fail. If the document purported to transfer any proprietary
interest in land, it would be ineffective both for nonregistration under 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-aprendre
that was sought to be transferred by it, then again the document would be
compulsorily registrable as a profitsa-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(i)(f) and 31(1) Of the Constitution, the
petitioner could 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,ooo,
the document was compulsorily registrable under the Registration Act otherwise
no title or interest could pass ; and in absence of such registration the
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 Actor the Registration Act, trees
attacked to the earth which are immoveable property under s.
3(26) of the General Clauses Act, as also S.
2(6) of the Registration Act, must be so under the Transfer of Property Act as
ORIGINAL JURISDICTION: Petition No. 104 of
Petition under Article 32 of the Constitution
for the enforcement of fundamental rights.
R. V. S. Mani, for the petitioner.
267 H. N. Sanyal, Additional
Solicitor-General of India, R. Ganapathy Iyer and R. H. Dhebar for respondents,
N.N. Keshwani, for I. N. Shroff, for
respondent No. 4.
1958. March 24. The Judgment of Das C. J.
Venkatarama Aiyar, S. K. Das and Sarkar JJ. was delivered by Das C. J.
Bose J. delivered a separate Judgment.
DAS C. J.We have had the advantage of
perusing the judgment prepared by our learned Brother Bose J. which he will
presently read. While we agree with him that this application 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
order 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(1)(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 forests in eight
several Tehsils, granted to her the right to take and appropriate all kinds of
wood-Building wood, fuel wood and bamboos, etc.-from the said forests for a period
from the 268 date of the document up to December 26, 1960. The terms of the
document have been sufficiently set out in the judgment to be presently
delivered by Bose J. and need not be set out here. The petitioner has paid Rs.
26,000 as consideration for the rights granted to her. The genuineness of this
document and the good faith of the parties thereto have not been questioned.
The document, however, has not been registered under the Indian Registration
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 any 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 Registration 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 construed 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 proprietary 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 some profits-a-prendre which, being an interest 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 land, then also 269 the document will not affect the immoveable
property and will not operate to transmit to the petitioner any such
profits-a-prendre which is in the nature of' immoveable property, as the
document has not been registered under the Indian Registration Act, as has been
held in Ananda Behera v. The State of Orissa (1). If it is a purely personal
right, then such right will have no higher efficacy than a right acquired under
a contract. If, therefore, the document is construed as a matter of contract,
then assuming but without deciding that a contract is a property within Arts.
19(1)(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 that 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 run 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 Chhotabai 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 been 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, the cannot complain of the
infringement by the (1)  2 S.C.R. 919, (2)  S.C.R. 476.
270 State of any fundamental right for the
enforcement of which alone a petition under Art. 32 is maintainable. We,
therefore, agree that this petition should be dismissed with costs.
BOSE J.-This is a writ petition under Art. 32
of 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. 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.
The petitioner says that she worked the
forests till 1950.
In that year the Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 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 Commissioner, 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 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 271 her lease and to the rules framed under s. 218(A) of
P. Land Revenue Act.
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.
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.
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 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 move able
property and that, contra, it related to immoveable 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 nature of
a document cannot be disguised by labelling it something else.
272 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 paragraph:
" 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 pasasthe 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 isWithout 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 clause (8). It runs273 "You should not be
permitted to re-cut 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." 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
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.
Although the document repeatedly calls itself
a lease, it confers no rights of enjoyment in the land. Clause (5) makes that
clear, because it saysOnly 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. 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 out 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 Edition) page 522, Note (m).
(2)  2 S.C.R. 919, 922, 923.
35 274 It is not a " transfer of a right
to enjoy the immoveable property " itself (s. 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.
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 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 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, relying on
Chhotebhai Jethabhai Patel's case(2), 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 simpliciter, 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(1)(f)
or Art. 31(1) (1) 2 S.C.R. 919.
(2)  S.C.R. 476.
275 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, in so far as it is founded either on 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
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
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)  2 S.C.R. 919.
276 " 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.
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 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
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 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 that growing trees are immoveable property."
At page 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 277 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." 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." 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.
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 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 278 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.
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'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 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.
(I)  2 S.C.R. 919.