Shrimati Shantabai v State of Bombay & Others[1]
5th Chief Justice of India- Jts. SR Das
Bench:
Hon’ble Jts. Sudhi Ranjan Das (CJI), T.L. Venkatarama Aiyyar, S.K. Das, A.K.
Sarkar and Vivian Bose
Q) Is tree a movable or immovable property, what is the difference between
timber tree and standing timber, what is simpliciter suit and what is profit a prendre?
Facts
of the case
The
petitioner filed an application under Article 32 of the Constitution. She
prayed that the court should set aside the order of the respondent, which was
directing her to stop cutting of forest wood. She claimed her right under Article
19 (1)(f) and 19 (1)(g). she claimed that her husband was the proprietor of
certain forest area (8 tehsils) and granted her the right to take all kinds of
woods from the said forest from time to time. The petitioner has unregistered
document executed in 1948 by her husband, granting her the right to enter upon
the certain land and she had paid R. 26,000 for it, till 1960 (for a period of
12 years). The right granted was to enter the forest land and to cut down trees
above 12 feet height (means fully grown trees, ready to be used as timber) and
you should not touch those trees which are of shorter height.
As
per the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals,
Alienated Lands) Act 1950, she was barred from cutting the forest trees u/s 3
of it but can only claim compensation if any, because all such property came to
the state itself. She made an application to the deputy commissioner in 1955
for her right to, who gave the order that because the transfer of land took
place before 1950, hence she is not barred by section 3 of the act. But when
she went to the Divisional Forest Officer, they said that her claim will be
examined. She in the meanwhile started cutting trees and took the law in her
hand. In reaction to which authorities took action against her for unlawful
cutting of trees, cancelled her name and also forfeited the timber she cut.
What
is Simpliciter suit?
The
petitioner filed for the simpliciter suit. Simpliciter suit is filed when a
person was enjoying the peaceful possession over the property, whether in joint
ownership or as a sole proprietor and that peaceful possession is disturbed or
threatened by the defendant, then to reclaim the possession simpliciter suit is
filed.
Where
the title is not disputed of the plaintiff, but he is not in the possession,
then in order to claim simpliciter injunction, he has to mandatory file in
addition suit for possession as well.
And
where the title to the property of the plaintiff is disputed, then the
plaintiff has to file for declaration of title and consequential relief of
injunction. And where the plaintiff is not in possession or not be able to
establish possession, then he has to necessarily sue for declaration of
possession and injunction.
The
issue before the court
The
issue before the court was whether a tree is a movable property. Because as per
the definition of ‘immovable property’ under section 3 of the Transfer of Property
Act 1882 clearly says that standing timber is not immovable property. Whereas,
under the general Clauses Act 1897 it would be regarded as immovable property
because trees are a benefit that arises out of the land and also trees are
attached to the land. The document is a lease or license with the grant.
Is
the right of Shantabai is in movable or in immovable property of the forest
land?
Judgement
pronounced
The
Supreme Court held that trees (not the standing timber) will be regarded as the
immovable property. Because it is attached to the land and is a benefit that
arises out of the land. Standing timber or crops would not be considered as
immovable property because in that case, we will look into the intention behind
growing that crop or timber, i.e. to ultimately cut down or harvest at the
right time. Which is not the case with trees, they are grown not with the
intention to cut down for the commercial purpose. Therefore, the court will
always have to look behind the intention of growing anything on the land.
Trees
are attached to the land and hence are immovable property even under Transfer
of Property Act. And trees which are meant to be converted into timber be
looked upon as timber for all practical purposes even though it is still
standing.
Timber
trees are different from that of standing timber. In the Transfer of Property
Act standing timber is called as movable property. Timber tress will be
considered as immovable property. Those trees which are fit to be fell down are
known as standing timber. Fruit-bearing
trees like mango trees are considered as timber tree as we have no intention to
cut it down and derive fruits out of it. Level of nourishment is also one of
the criteria but not sole criteria, in order to consider whether a tree is a
movable or immovable property.
The
sapling planted will start taking nourishment from the soil and become a fully
grown tree, but no person has not contended that it should be cut in the
reasonable frame of time. It will be treated as immovable property, as we are
considering as timber tree and not a standing timber. And if you have developed
an intention within a reasonable short period of time to cut it down and the
tree itself has fully grown and ready for the timber purpose. Then the court
will consider that timber tree as standing timber, and fall under the ambit of
movable property.
It
is evident the trees which are not fit for cutting today for timber purpose,
might be fit after a period of 12 years but it is not a mere sale of trees as
good, but rather it is more. The whole document has to be read together. It is
not just a right to cut the tree but also to derive profit from the soil
itself. The trees below the height of 12 feet will in the next 12 years derive
the nourishment from the soil to grow. In the shape of nourishment in the soil,
goes to the tree. And hence an interest or benefit is being derived out of the
land itself. This benefit arising out of the land is mention in the General
Clauses Act, in the definition of immovable property. On this very logic, the
court is saying that the right is in the immovable property. (we are not
looking at the tree itself but at the right, is it over the movable or immovable
property).
Whereas the trees which are fully grown and fit to be cut shall also be considered as movable property, but still Shantabai will not have the right to cut them because the court has granted her the right only in immovable property and not in the movable property (court cannot go on to grant right in both- movable as well as immovable property). State of Orissa v Titagarh Paper Mills (1985 AIR 1293), state of Orissa levied sales tax on cutting and selling of trees. Which was challenged in the court because the sales tax is levied only on the goods and trees are not movable property as per the Transfer of Property Act. The trees are profit a prendre and hence they are the right in immovable property as per the court. Therefore the document needs to be registered.
The
petitioner has no fundamental right to enforce because being unregistered deed
for lease, it passes no good title or interest to her. Right to enter upon the
land and cut trees and enjoy her right in immovable property is a benefit
arising out of the land. The court said that the lease was not a transfer of
right to enjoy immovable property itself (u/s 105 of the Transfer of Property
Act). One cannot take away the property but merely enjoy the property. Therefore,
the registration of the document becomes of prime importance for the right to
enjoy for immovable property. The court said because the document was not
registered therefore in the eyes of law the right was never given to her to
enjoy the immovable property. The court didn’t answer whether the document was
lease or license because in either view the petitioner must fail.
What
is profit’s a prendre
The profits gained from the immovable property (like land) is called as profits a prendre. For example, rent that is received from a house is termed as profit a prendre. In profit, a prendre one has the right to not only enter the property but to also to remove something from it, namely a part of the produce of the soil.
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