SHRIMATI SHANTABAI versus STATE OF BOMBAY & OTHERS

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.

p. 270

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.

p. 270

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.

p. 270

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 her lease and to the rules framed under s. 218(A) of the C. 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 accord- •ance with the Deputy Commissioner's order \dated August 16, 1955.

pp. 270–271

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 Divisional ]'orestOfficer says.

p. 271

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.

p. 271

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. . , .. ·" ·

p. 271

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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Clause ( 1) of the deed runs--

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"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."

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At the end-of clause (2), there is the following paragraph:

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"You No. 1 are the principal lessee, while Nos. !! and 3 are the sub-lessees."

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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: ·

p. 272

" 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."

p. 272

Clause (5) runs--

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"Besides the above pasas the whole forest is leased out to you. Only the lease of the for est woods is given to you."

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°Clause (7) states-

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" 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-

p. 272

" 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."

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The only other clause to which reference need be made is cla,use (8). It runs- • •

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"You should not be permitted to re cut the >vood in the area which was once subject to the operation of

p. 273

. h . h d . · cuttmg, ot erw1se t e area concerne w1 . rev.ert to · the estate. The cutting of tl:i.e forests should be right at the land surface and there should not be left any deep furrows or holes."

p. 273

I will examfoe the seventh clause first. The questi.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.

p. 273

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-

p. 273

" 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 ( and by the later decision in Ananda Behera v. The State of Orissa ( 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).

p. 273

It is not a " transfer of a right to enjoy the immove- . able 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.

p. 274

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 ( 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 ( especially as I think it lays down the law aright.

p. 274

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.

p. 274

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 (

p. 274

"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) something more must be disclosed, namely, a right to Property of which one is the owner or in which one

pp. 274–275

l . h has an mterest apart from a purely contractua rig t. 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 ( 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.

p. 275

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.

p. 275

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.

p. 275

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 "attached to the earth"; and it seems to me that the distinction must lie in the difference between a tree and timber. It to be noted that the exclusion is only of standing timber " and not of" timber trees". Timber is well enough known to be-

pp. 275–276

" 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. If not, it is still a tree because, unlike timber, it will continue to draw sustenance from the soil.

p. 276

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.

p. 276

'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

p. 276

21. At page 16, the learned author says-

p. 276

" 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-

p. 276

" 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 includes theright 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- . ·

pp. 276–277

"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."

p. 277

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. · •

p. 277

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.

p. 277

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 • • third cutting. As regards trees that could be cut at once, there is no obligation to do so. They can be left standmg till such time as the :pet1t10ner 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 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.

pp. 277–278

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 the petitioner has no fundamental right which she can enforce.

p. 278

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.

p. 278

Petition dismissed.' • •

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