SHANTA BAI CASE

Property law case (Difference between tree & Standing Timber)

1. 2. The petitioner husband granted her the right to take and appropriate all kinds of wood from
certain forests in his Zamindary (document being unregistered). 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
permitting her to work in 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(1)(f) and 19(1)(g). 2 (c)

2. 3. Facts  The petitioners husband Balirambhau doye was a zamindar of Pandharpur . On 26th
April 1948 he executed an unregistered document that called itself a lease in favor of his wife . 
The deed gives the petitioner the right to enter upon certain areas in the zamindari in order to
cut and take out the bamboos, fuel wood and teak .  The term of the deed is from 26th April
1948, to 26th December 1960 , and its consideration is Rs. 26000. 3 (c)

3. 4. Facts (Cont’d)  The Petitioner applied to the Deputy Commissioner and obtained from him
an order of permitting her to work in 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.  The Petitioner then moved the State Government
against this order but there was no effect. 4 (c)

4. 5. Issues  Whether the petitioners fundamental right is been infringed by the state with respect
to an un registered document and whether the document is leased or profit a prendre? 
Questioning of the construction of the deed under section 8 of the TP Act 1882. 5 (c)

5. 6. Issues (Cont’d)  What is the distinction between a lease document and profit a prendre?  Is
tree a immovable property and what is the distinction between the tree and standing timber?
6(c)

6. 7. Law Statutes: Constitution.  The Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950. Cases: Ananda Behra v. State of Orissa1955 SCR 919.
Chotabhai Jethabhai Patel and Co.V State of Madhya Pradesh, AIR 1953 SC 108. 7 (c)

7. 8. Analysis of the Law  Firstly, the petitioner has filed for the infringement of her fundamental
rights (Art. 19 1 (f) and (g) of the Constitution) on the basis of a document which is titled as
“lease deed” with it’s own clauses, terms and conditions.  The Judges state that the document
is just a license granted to her ,thus in this case the right acquired by her would be either in the
nature of some profit or purely personal right under a contract.{Held by justice Das} . 
According to Justice Bose , the document was not a lease but amounted to a license ,which
stated that to cut the certain trees and then carry away the wood ,in other words is a profit
 appendre, he also says the deed required registration under the act , and thus did not pass any
title or interest for which the petitioner cannot enforce any fundamental right. 8 (c)

8. 9. Analysis of the Law (Cont’d)  Secondly, the true nature of the document cannot be disguised
by labeling it something else according to “the deed construction” mention in section 8 of the TP
Act 1882 according to Justice Bose.  Thirdly ,the difference between lease and profit appendre
as per Easements Act 1882 sec. 52 and TP Act sec. 105 is being discussed were by in a lease a
person enjoys the property ,but in appendre a person can also make some changes ,apart from
enjoying it . 9 (c)

9. 10. Analysis of the Laws (Cont’d)  Fourthly, trees are immovable property because they are
attached or rooted to the earth, except standing timber ,crops and grass. Here as standing
timber it must be in a state such if cut it could be used as timber ,the legal basis of rule is that
trees that are not cut continue to draw nourishment from soil and that benefit of this goes to
the grante. 10 (c)

10. 11. Conclusion The Judgment The petition filled under Article 32 of the Constitution seeking
protection for the rights infringed of the Part III (Fundamental Rights) same constitution is being
“dismissed “by the honorable Supreme Court with costs. Reason: There has been no such
violation of any of the fundamental rights of the petitioner as submitted before the honorable
Supreme Court. 11(c)

11. 1. Anand Behera v. State of Orissa[i]

12. FACTS: The petitioner had obtained a license to catch and appropriate all fish in specific sections
of the Chilka lake from its proprietor (Raja of Parikud). With the passing of the Orissa Estates
Abolition Act, 1951 ownership of the estate vested in the State of Orissa. State of Orissa refused
to recognize the license of petitioner. Petitioner contended that their fundamental rights under
Art 19(1)(f) and Art 31(1) is being infringed and they also contended that ‘catching and
appropriating fish’ is a transaction relating to sale of future goods (which is the fish) and hence
the Act which is applicable only to immovable property would not be applicable on him.

13.

14. LEGAL PRINCIPLE UPHELD: The court held that the lake is an immovable property and therefore
the petitioner’s right to enter in that estate (which he did not own) and carry away fish from the
lake is a ‘profit a prendre’ and in India it is regarded as a benefit that arises out of the land and
as such is immovable property.

15.

16. REASONING BEHIND JUDGEMENT: The SC while holding that right to catch and carry away fish
from specific sections of the lake over a specified future period is a license to enter on the land
 coupled with a grant to catch and carry away the fish and this grant is a profit-a-prendre, said
that:

17.

18. “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 of 1952 is not
attracted as that Act is confined to immoveable property. If this is the basis of their right, then
their petition under Article 32 is misconceived because until any fish is actually caught the
petitioners would not acquire any property in it.”

19.

20. “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.”

21.

22. Thus, as the sale of grant to petitioner was oral. However, a right related tangible immovable
property (in this case, the fish), if it is more than Rs 100 needs to be registered (Sec 54 TPA). As
there was no registration in this case therefore no title or interest was passed to the petitioner.

23.

24. 2. Shantabai v. State of Bombay[ii]

25. FACTS: Shantabai’s husband had granted her the right to take and appropriate all kinds of wood
from certain forests in his Zamindary through an unregistered document. 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 U/S 3 of this Act and the petitioner could
no longer cut any wood. She obtained an order U/S 6(2) of the Act from the Deputy
Commissioner and started cutting 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).

26.

27. LEGAL PRINCIPLE UPHELD: This case basically relates as to what constitutes ‘standing timber’.
However, the SC has in its judgement also talked about the phrase ‘benefit arising out of land’
and held that right to enter upon land and cut trees is a benefit arising out of land. The SC has
based its decision on this point on the Anand Behera case.

28.

29. REASONING BEHIND JUDGEMENT:

 30.

31. “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.”

32.

33. “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.”

34.

35. “Following the decision in Ananda Behera’s 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.”

SMT. Shantabai vs state of Bombay (AIR 1958 SC 532)

The court held that right to enter the land, cut and carry away wood over a
period of 12 years is benefit arising out of land and hence immovable
property.

Facts: By an unregistered document the husband of the petitioner granted her

the right to take and appropriate all kinds of wood from undisturbed 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 her name might be the cut materials forfeited. She moved the State
Government against this order but to no effect.

Issues:

1. Whether A right to enter on land to cut and carrying away timber

standing on it is a benefit arising out of land?
 2. Whether it will be regarded as immovable property according to section
3(26) of general clauses Act?
3. What is the difference between standing timber and tree
Held: It is needed to be taken into consideration that the period of grant for
cutting of trees is 12 years. Hence the trees which will be perfect for cutting
after 12 years are not fit to cut right now. Thus it is not the mere sale of trees
as wood but much more than that. Therefore it means that they are not to be
converted into the timber on an early date and the intention is that they
should continue to live and derive nourishment and benefit from the soil.