Transfer of Property Act, 1882: Standing Timber and Timber (Shantabai v State of Bombay)

 Shantabai v State of Bombay

Fact:

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. At the same time, she was prohibited from cutting teak plants that were under the height of one and a half feet, but the moment the teak trees reached that girth, they could be felled by her, but within 12 years. 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) Act, 1950, which came into force on January 26, 1951, was enacted. Under Section 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-section (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, who stated, that the act is enforceable after 31^st March, hence, not applicable on her. 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 her lease. The petitioner claimed compensation from Divisional Forest Officer for being ousted from the forests from 1951 to 1955 who stalled her, therefore, she acted on her own and started working in the allotted forest again. 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. She filed a petition in the court under Article 32 of the Constitution. She contended that as the right granted to her was a right in standing timber, she was entitled to compensation.

Issue: 

Whether the lease issued by Husband in favour of wife holds good being an unregistered deed?

What was the nature of right created in her favour, a right in movable or immovable property?

 Ratio Decidendi: 

The relevance of this question as to whether the right granted in her favour was a right in movable or immovable property was that if the right was in immovable property, then irrespective of the fact of the change in ownership, she would still be entitled to realise the right but provided it was conferred in her favour with the help of a document capable of taking effect in law, i.e., where it was a lease for a period of 12 years it should have been executed in her favour with the help of a written, attested and registered document. If it is not, then it will not pass the right or title in her favour with respect to the property for 12 years. Secondly, if it was a right in movable property, then if the ownership changes hands, then, though the right to take the benefit as per the original contract will come to an end, but the grantee would be entitled to compensation for the rest of the time period for which she was not able to realise the right. Here, petitioner could never have succeeded in pleading that the right was in immovable property as the document on which she relied was in writing, but was neither attested nor registered. Thus, she tried to prove that the grant was in standing timber (movable property), and therefore, in movable property.

The court held that a right to enter upon the land of another and carry a part of the produce is an instance of profits prendre, i.e., benefit arising out of land, and therefore a grant in immovable property. Pointing out the distinction between timber trees and standing timber, the court held that the grant here was not merely of standing timber, but the grantee here was empowered to take the benefit of the soil. The court said: …the duration of the grant is 12 years. It is evident that trees that will be fit for cutting 12 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 nourishment in the soil that goes into the tree and make 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 choose to fell it.

The right created in her favour, the court held was a right in immovable property as it was spread over a period of 12 years and the intention was not to cut the trees at a reasonably early time period. As the right was in immovable property but was created with the help of an unregistered lease deed, petitoner could not be granted any remedy.

Judgement: 

The court dismissed her appeal because claim for movable property could not be proved. 

Reference: Court Order