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Shrimati Shantabai v State of Bombay & Others - ‘land law’

 Shrimati Shantabai v State of Bombay & Others[1] 

5th Chief Justice of India- Jts. SR Das  

Source:wikimediacommons

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. 

Also read - Salient Features of the Act that Safeguard Landowners from Unreasonable Acquisition by the Government or Industrialist



[1] 1958 AIR 532


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