Shrimati Shantabai vs State of Bombay and Others
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Petition No. 104 of 1957
Decision Date: 24 March 1958
Coram: S.K. Das, A.K. Sarkar, Venkatarama Aiyar, Bose J.
In the matter of Shrimati Shantabai versus the State of Bombay and others, the Supreme Court delivered its judgment on 24 March 1958. The case was reported in 1958 AIR 532 and 1959 SCR 265. The bench was composed of Chief Justice Sudhi Ranjan Das and judges Ayyar, T. L., Venkatarama Das, S. K. Sarkar, A. K. Bose and Vivian. The petition was filed by Shrimati Shantabai, who sought relief against the State of Bombay and other respondents. The principal issue concerned the enforcement of fundamental rights under Articles 19(1)(f) and 19(1)(g) of the Constitution in connection with an unregistered document that purported to give the petitioner the right to cut and appropriate timber from forest land. The document was said to confer a proprietary interest, which later statutes had vested in the State. The relevant statutory framework included the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, particularly section 3, which transferred all proprietary rights in land to the State. The petitioner’s claim was that the rights accrued from the unregistered document were maintainable under the Constitution.
The Court observed that the husband of the petitioner had, by an unregistered instrument, granted his wife the authority to take all kinds of wood from certain forests within his Zamindari. After the passage of the Madhya Pradesh Abolition of Proprietary Rights Act, the State acquired the proprietary interest in the land, and consequently the petitioner could no longer lawfully harvest timber. She subsequently applied to the Deputy Commissioner and obtained an order under section 6(2) of the Act permitting her to work the forest; following that order she began to cut trees. The Divisional Forest Officer later issued an order directing that the petitioner’s name be removed from the list of permitted cutters and that the timber already cut be forfeited. The petitioner challenged this order before the State Government but obtained no relief. She then filed a petition under Article 32 of the Constitution, contending that the Forest Officer’s order infringed her fundamental rights under Articles 19(1)(f) and 19(1)(g). The Court, speaking per curiam, held that the order did not infringe the petitioner’s constitutional rights and dismissed the petition. In reaching this conclusion, the Court followed the precedent set in Ananda Behera v. State of Orissa (1955 2 S.C.R.), and declined to follow Chhotabai Jethabai Patel & Co. v. State of Madhya Pradesh (1953 S.C.R. 476). The Court explained that a detailed examination of the document’s character was unnecessary for deciding the case. If the document attempted to transfer any proprietary interest in land, it would be ineffective because it was not registered as required by the Registration Act and because section 3 of the Madhya Pradesh Act vested such interest in the State. If the document sought to convey a profit‑à‑prendre, it would likewise be compulsorily registrable, as a profit‑à‑prendre is immovable property. If the instrument created only a personal contract, the petitioner could not claim infringement of fundamental rights; her remedy would be a civil suit for enforcement of the contract and compensation for breach, not a constitutional challenge.
The Court observed that the document in question did not constitute “property” within the meaning of Article 19(1)(f) and Article 31(1) of the Constitution, and therefore the petitioner could not claim an infringement of a fundamental right. The State had neither acquired nor taken possession of the contract, which continued to remain the petitioner’s own property, and she was at liberty to dispose of it as she saw fit. Because the State was not a party to the contract, it was not bound by its terms; even assuming that the State could somehow be bound, the appropriate remedy for the petitioner would be a suit for specific performance of the contract and an award of compensation for any breach, not a claim of constitutional violation.
According to Bose, J., the document granted the petitioner the right to enter the specified lands and to cut and remove not only standing timber but also other trees that were not yet ready for felling. This grant therefore covered both movable and immovable property. The document was valued at Rs 26,ooo and, under the Registration Act, was required to be compulsorily registered; without such registration no title or interest could pass. In the absence of registration, the petitioner could not invoke any fundamental right, as held by this Court in the Ananda Behera case. Although standing timber is not regarded as immovable property under the Transfer of Property Act, trees that are attached to the earth are immovable property under section 3(26) of the General Clauses Act and also under section 2(6) of the Registration Act, and consequently they must be treated as immovable property under the Transfer of Property Act as well.
The judgment proceeded to note that the petition, numbered 104 of 1957, was filed under Article 32 of the Constitution for the enforcement of fundamental rights. Counsel for the petitioner was R V S Mani, while the respondents were represented by H N Sanyal, Additional Solicitor‑General of India, together with R Ganapathy Iyer and R H Dhebar for respondents 1‑3, and N N Keshwani for I N Shroff, respondent 4. The judgment dated 24 March 1958 recorded that the opinions of Das C J, Venkatarama Aiyar, S K Das and A K Sarkar were delivered by Das C J, and that Bose J delivered a separate judgment. Das C J remarked that he had examined the judgment prepared by his learned brother Bose J, and while he agreed with the conclusion that the petition must be dismissed, he wished to base his decision on reasoning that differed slightly from that of his brother. The relevant facts were said to be fully detailed in Bose J’s judgment. The petitioner had approached the Court under Article 32, seeking to set aside an order dated 19 March 1956 issued by respondent 3, which directed her to cease cutting forest wood, and to obtain a writ, order or direction preventing the respondents from interfering in any way with her claimed rights to enter the forests, to appoint agents, to obtain renewal passes, to manufacture charcoal and to exercise other rights mentioned in the petition.
The Court observed that because the petition was filed under article 32 of the Constitution, the petitioner was required to demonstrate that some fundamental right had been infringed. The petitioner asserted that the order she challenged violated her rights under article 19(1)(f) and article 19(1)(g). She relied on a document dated 26 April 1948 in which her husband, Shri Balirambhau Doye, who owned certain forests spread over eight tehsils, purportedly granted her the authority to take and appropriate all varieties of wood—including building timber, fuel wood, and bamboos—from those forests for the period beginning on the date of the document and ending on 26 December 1960. The specific terms of that document were set out in detail in the judgment to be delivered by Justice Bose and therefore need not be repeated here. The petitioner had paid a consideration of Rs 26,000 for the rights granted. The Court noted that the authenticity of the document and the good‑faith of the parties were not contested, but the document had not been registered under the Indian Registration Act. Consequently, the nature of the rights claimed by the petitioner required proper interpretation of the document. The Court indicated that a detailed, minute examination of the document or a definitive determination of its exact meaning was unnecessary, because, irrespective of how the document might be construed, the petitioner could not sustain a claim of violation of any fundamental right. If the document were interpreted as conveying any portion of the grantor’s proprietary interest, the lack of registration under the Indian Registration Act meant that it could not affect immoveable property nor confer any share or interest in such property. Even assuming, for argument’s sake, that an unregistered document transferred a share of proprietary right, that interest would have vested in the State under section 3 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, leaving the petitioner entitled only to compensation, if any, under that statute. If the document were read as a mere licence to enter the land, that licence would have been extinguished at the moment the grantor’s proprietary rights vested in the State pursuant to the same section. In a scenario where the document were construed as a licence coupled with a grant, the right acquired by the petitioner would either amount to a profit‑à‑prendre, which is an interest in land and thus immoveable property, or a purely personal contractual right. The Court further held that even if the document created a profit‑à‑prendre, the lack of registration meant that it would not affect immoveable property nor transmit any such profit‑à‑prendre to the petitioner, as previously held in Ananda Behera v. The State of Orissa. If, on the other hand, the document established only a personal contractual right, such a right would not possess a higher efficacy than any right obtained under a contract. Accordingly, even assuming a contract could be regarded as property within articles 19(1)(f) or 31(1), the petitioner could not complain because the State had neither acquired nor taken possession of the contract; the State was not a party to the contract and claimed no benefit therefrom, leaving the petitioner as the owner and possessor of the contract, free to hold or dispose of it as she wished.
The judgment held that the unregistered document would not alter the status of the immovable property and would not convey to the petitioner any profit‑a‑prendre that qualified as immovable property, referencing the principle established in Ananda Behera v. The State of Orissa (1). It further explained that if the instrument created only a personal right, such a right would have no greater effect than a contractual right. Assuming, without resolving, that a contract might constitute property within the meaning of Articles 19(1)(f) and 31(1) of the Constitution, the Court observed that the petitioner could not complain because the State had neither acquired nor taken possession of her contract. The State was not a party to the contract and claimed no benefit from it; consequently, the petitioner remained the owner and possessor of the contract, entitled to treat it as her property, to sell it, or to sue the grantor for damages under the contract. The State, being absent from the contract, acknowledged no liability, and the personal nature of the contract meant it did not run with the land. Even if the petitioner alleged that the State was somehow bound by the contract, the Court noted that she could only enforce the contract in the ordinary manner by suing the State, a point on which the Court offered no further comment. The judgment remarked that this issue had not been raised before the Court when it decided Chhotabai Jethabai Patel and Co. v. The State of Madhya Pradesh (2); had it been, the outcome would likely have been different. For the reasons set out, the Court concluded that any rights the petitioner might have acquired under the document—under any of the various interpretations discussed—could not be the basis for a claim of infringement of a fundamental right, and therefore a petition under Article 32 was not maintainable. Accordingly, the petition was dismissed with costs. Bose J. identified the proceeding as a writ petition under Article 32 in which the petitioner alleged infringement of her fundamental right to cut and collect timber in the specified forests. The petitioner’s husband, Balirambhau Doye, had been the Zamindar of Pandharpur, and on 26 April 1948 he executed an unregistered instrument described as a lease in favor of his wife, granting her the right to enter certain zamindari areas to cut bamboos, fuel wood and teak, subject to specific restrictions, with the lease term running from 26 April 1948 to 26 December 1960 and consideration of Rs. 26,000.
The deed authorized the petitioner to enter specific areas of the zamindari estate for the purpose of cutting and removing bamboos, fuel‑wood and teak, subject to certain restrictions on cutting and an outright prohibition on felling designated trees; essentially, this constituted the core of the right granted to her. The deed was dated from 26 April 1948 and was to remain in force until 26 December 1960, with the agreed consideration being twenty‑six thousand rupees. The petitioner testified that she actively worked the forests under this lease up to the year 1950. In that same year the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 came into effect, and the Act itself became operative on 26 January 1951. Section 3 of the Act provides that all proprietary rights in land vest in the State on and from the date fixed by a notification issued under sub‑section (1), and for the area in question the vesting date was fixed as 31 March 1951. Consequently, after that date the petitioner was prohibited from cutting any further trees. Seeking to preserve her lease, she applied to the Deputy Commissioner of Bhandara under section 6(2) of the Act for validation of the lease. On 16 August 1955 the Deputy Commissioner held that the provision did not apply because it related only to transfers made after 16 March 1950, whereas the petitioner’s transfer had been effected on 26 April 1948. Nonetheless, he further concluded that the Act could not be invoked against transfers made before that cutoff, and therefore leases executed earlier could not be questioned. He also affirmed the genuineness of the lease and ordered that the petitioner be permitted to work the forests in accordance with the conditions specified in her lease and subject to the rules framed under section 218(A) of the C.P. Land Revenue Act. The petitioner appears to have claimed compensation from the Government for having been dispossessed of the forests between 1951 and 1955, but she relinquished that claim on the understanding that she would be allowed to continue working the forests for the remainder of the lease term pursuant to the Deputy Commissioner’s order dated 16 August 1955. Following that order she approached the Divisional Forest Officer at Bhandara and requested permission to exercise her forest rights as authorized. She made two applications, and the only response she received was a letter indicating that her claim was under examination; thereafter, according to the Divisional Forest Officer, she took the law into her own hands, entered the forest and began cutting trees. Acting on that allegation, the Divisional Forest Officer on 19 March 1956 initiated proceedings against her for unlawful cutting, ordered the cancellation of her name from the forest register and directed that the felled timber be forfeited. In response, the petitioner filed an application with the Government of Madhya Pradesh on 27 September 1956, praying that the Divisional Forest Officer be instructed to give her immediate possession of the forest and to refrain from interfering with her rights. When no effective remedy materialized, she filed the present petition before this Court under article 32 of the Constitution on August …
On 26 August 1957 the petitioner filed a petition invoking article 32 of the Constitution. The petitioner claimed that her rights derived from a deed dated 26 April 1948. Both parties had extensively argued before the Court about the exact character of that deed. Each side at various times described the deed as a contract that created contractual rights, as a transfer, as a licence coupled with a grant, and as relating either to movable or to immovable property. Consequently the Court said it was necessary first to determine the true nature of the deed before addressing any further issues. The Court observed that the document itself labeled itself a “lease deed,” but that such a label was not decisive, because the substance of a document could not be concealed merely by a chosen heading. The Court then reproduced the operative clauses of the deed. Clause one stated that the parties executed the lease deed and that, in consideration of rupees twenty‑six thousand, timber, fuel, bamboo and similar resources were leased out. Clause two identified the petitioner as “No. 1” the principal lessee, while “Nos. 2 and 3” were designated as sub‑lessees. Clause three reserved a portion of the cutting for the proprietor and limited the petitioner’s rights to the remainder, specifying that certain parcels (pasas 16, 17, 18) were already leased to the petitioner, that the estate itself would cut the wood from those parcels, and that any standing stock thereafter would form part of the lease but that the petitioner would have no claim to wood cut from that stock. Clause five declared that, apart from the aforementioned parcels, the whole forest was leased to the petitioner, and that only the lease of the forest woods was conveyed. Clause seven explained the relationship between the proprietor and the petitioner, stating that the proprietor and the petitioner were “co‑related,” that the petitioner was to manage the estate, and that in the lease the petitioner should conduct herself strictly as a leaseholder. It further provided that in the proprietor’s absence the petitioner should act as the proprietor only to the extent of looking after the estate, and that any action without the proprietor’s signature would be invalid, including any transactions concerning the pasas. Clause eight prohibited the petitioner from re‑cutting wood in an area where cutting had already occurred, or else the area would revert to the estate, and required that cutting be done at the surface without leaving deep furrows or holes.
The Court indicated that its first focus would be on clause seven to decide whether that clause granted any proprietary right or interest to the petitioner. The analysis would consider the language of the clause, its context within the deed, and the effect of the provision that any act without the proprietor’s signature would be void, together with the statement that the lease could not be altered or alienated by anyone. By scrutinising these provisions, the Court aimed to determine whether the deed, despite its title as a lease, actually transferred any ownership or enjoyment rights, or whether it merely created a limited managerial authority for the petitioner in the absence of the proprietor.
The Court expressed that it did not believe clause 7 conferred any proprietary right. It noted that the wording of the clause was clumsy, but the substance was clear. The petitioner was identified as the proprietor’s wife, who apparently performed certain management functions during the proprietor’s absence. The purpose of clause 7, the Court held, was to stipulate that when she acted in that managerial capacity she did not acquire the authority to alter the deed in any way. The Court pointed out that the clause contained no language of transfer or conveyance and therefore did not convey any portion of the proprietary rights or any interest therein. Moreover, the clause did not even grant rights of management; rather, it merely described the existing situation and either limited or clarified the managerial powers presumed to exist when the proprietor was away.
Although the document repeatedly described itself as a lease, the Court observed that it granted no right to enjoy the land. Clause 5, the Court said, made this apparent by stating, “Only the lease of the forest woods is given to you.” In the Court’s view, the document only granted a right to enter the land for the purpose of cutting certain kinds of trees and removing the wood. The Court related this to the decision in Chhotabhai Jethabhai Patel & Co. v. State of Madhya Pradesh (1) and the later decision in Ananda Behera v. State of Orissa (2), where it was held that such a transaction amounted to a licence to enter the land together with a grant to cut certain trees and carry away the wood. The Court further explained that, under English law, this constituted a profit à prendre because it was a grant of the produce of the soil, such as grass, turves or trees, as noted in Halsbury’s Laws of England (Simonds Edition), page 522, Note (m). The citations (2) [1953] S.C.R. 476, 483 and (2) [1955] 2 S.C.R. 919, 922, 923 were also mentioned.
The Court clarified that the arrangement was not a transfer of a right to enjoy the immovable property itself under section 105 of the Transfer of Property Act. Instead, it was a grant of a right to enter the land and remove a part of the soil’s produce. In a lease, the lessee enjoys the property but does not have the right to take away any portion of it; in a profit à prendre, the grantee has a licence to enter the land not for enjoyment but for the purpose of removing something, namely a part of the soil’s produce. The Court noted that much of the discussion before it centered on the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act of 1950, but it deemed this irrelevant because the petition was a writ under Article 32, requiring the petitioner to establish a fundamental right. Relying on the reasons given in Ananda Behera’s case (1), the Court concluded that the petitioner possessed no such right. This conclusion ran contrary to the earlier Chhotabhai Jethabhai Patel case, but the Court indicated that the later decision would be followed.
In this case, the Court observed that it was bound to follow the later authority, namely Ananda Behera’s case (1), because that decision correctly laid down the law. The counsel for the petitioner argued that the petitioner’s rights derived from a contract and, relying on Chhotebhai Jethabhai Patel’s case (2), contended that a writ of habeas corpus was therefore warranted. The Court noted, however, that in the earlier case the rights were said to arise from a licence rather than from a contract simpliciter, although the judges in that case had nonetheless held that a writ petition was maintainable. The Court then examined the petitioner’s reliance on a contract alone and, applying the reasoning of Ananda Behera’s case (1), concluded that the petitioner had no cause of action. The Court quoted the earlier decision: “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.” Accordingly, to invoke either Article 19(1)(f) or Article 31(1) the petitioner would have to disclose a property right in which she was an owner or held an interest apart from a purely contractual right, and therefore a claim founded solely on a contract could not succeed.
Turning to the alternative basis of the claim – that it rested on a licence or on a grant – the Court considered whether the subject matter was a right to moveable or immovable property. Following Ananda Behera’s case (1), the Court held that a right to enter land for the purpose of cutting and removing timber standing on it is a benefit that arises out of the land. The Court observed that there is no distinction between the position under English law and Indian law, referring to the English authority in Halsbury’s Laws of England (Simonds Edition), pages 620‑621. The remaining question was whether such a right constituted moveable or immovable property. Under section 3(26) of the General Clauses Act, the right is deemed immovable because it is a benefit arising out of the land and because trees are attached to the earth. By contrast, the Transfer of Property Act, in section 3, states that standing timber is not immovable property for the purposes of that Act, and section 2(6) of the Registration Act reflects the same view. The Court therefore examined which definition should prevail. It noted that trees are regarded as immovable property because they are attached to or rooted in the earth, as expressly provided by section 2(6) of the Registration Act. Consequently, the Court concluded that, despite the Transfer of Property Act’s exclusion of standing timber, the prevailing definition under the General Clauses Act and the Registration Act makes the right to cut timber an immovable property right.
Although the Transfer of Property Act does not give a specific definition of immoveable property beyond stating that the term does not include “standing timber, growing crops or grass,” the Act still treats trees that are attached to the earth—except for standing timber—as immoveable property. This result follows from section 3(26) of the General Clauses Act, which provides a general definition of immoveable property. In situations where a special definition is lacking, the general definition supplied by the General Clauses Act must prevail. Consequently, every tree that is not classified as standing timber falls within the category of immoveable property.
The Court then examined the distinction between standing timber and a tree. It noted that the Transfer of Property Act makes a separation between “immoveable property” and the phrase “attached to the earth,” and therefore the difference must arise from the contrast between a tree and timber. The statutory exclusion applies only to standing timber and not to “timber trees.” The term “timber” is commonly understood to mean wood suitable for constructing houses, bridges, ships, and similar structures, whether it is still growing on the tree or has been cut and seasoned, as reflected in Webster’s Collegiate Dictionary. Accordingly, “standing timber” must refer to a tree that has reached a condition in which, if cut, it could be immediately used for such purposes, and which is intended to be converted into timber so soon that, for practical purposes, it may be regarded as timber even though it remains standing. The Court emphasized that such a tree remains a tree because, unlike processed timber, it continues to draw nourishment from the soil.
The Court observed that a tree continues to obtain sustenance from the soil for as long as it remains alive and upright, and that this biological fact cannot be changed merely by labeling the tree as “standing timber.” However, the Court reasoned that if the tree is felled at an early stage, the amount of nourishment it would have drawn becomes negligible, allowing the distinction to be ignored for practical purposes. While theoretically there is no absolute difference between various classes of trees, the Court held that the rule is based not on abstract logic but on sound, common‑sense considerations rooted in experience. This practical approach has developed incrementally through successive cases until a clear and workable pattern emerged.
The Court cited Indian case law compiled in Mulla’s commentary on the Transfer of Property Act (fourth edition), particularly pages 16 and 21. On page 16, the author explains that “standing timber are trees fit for use for building or repairing houses. This is an exception to the general rule that growing trees are immoveable property.” On page 21, the author further notes that “trees and shrubs may be sold apart from the land, to be cut and removed as wood, and in that case they become moveable property; but if the transfer includes the right 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.”
According to the learned author, trees that have not been cut are regarded as movable property, but a transfer that includes the right to fell the trees for a term of years, thereby allowing the transferee to obtain a benefit from the further growth of the trees, is to be treated as a transfer of immovable property. The author also cites English law, stating that an unconditional sale of growing trees to be cut by the purchaser has been held to constitute a sale of an interest in land, whereas the same transaction does not amount to a sale of land if it is stipulated that the trees are to be removed as soon as possible. In the view expressed, the distinction between standing timber and trees that are not yet suitable for felling is sound. Before a tree can be described as “standing timber” it must be in such a condition that, if cut, it could be used for building or repairing houses, and when it reaches that condition it must be cut within a reasonable time. The rule appears to be rooted in generations of experience in forestry and commerce, having developed from practical considerations that a tree left uncut after it has passed its prime may deteriorate, hinder the growth of younger wood, damage the forest, and ultimately affect the timber market. Nevertheless, the legal basis of the rule is that trees that remain uncut continue to draw nourishment from the soil, and the benefit of that nourishment passes to the grantee.
Applying that principle to the document under consideration, the grant in question has a term of twelve years. It is clear that trees which will be suitable for cutting twelve years from now are not suitable for felling at the present moment; consequently the grant cannot be characterised as a simple sale of timber. Rather, the grant confers not only the right to cut a tree but also the right to derive a profit from the soil itself, in the form of the nourishment that enables the tree to grow until it reaches a size and age appropriate for felling as timber, or, if already of that size, to allow it to continue living until the petitioner decides to fell it. Clause 5 of the deed expressly prohibits the cutting of teak trees whose girth is less than one‑half foot, while clause 4 provides for a first, second, and third cutting. For trees that could be cut immediately, the deed imposes no obligation to do so; they may be left standing until the petitioner elects to fell them. This indicates that the intention is not to convert such trees into timber at an early date but to permit them to remain alive, to continue drawing nourishment from the soil, and thereby to be treated as trees rather than as standing timber.
In this case the Court observed that the trees covered by the grant should not be treated as timber that is merely standing and ready to be cut for its ordinary uses. The Court explained that the grant comprised not only standing timber but also trees that were not yet fit to be felled immediately and that such trees were to be felled gradually as they grew to the girth required by the deed over a period of twelve years. In addition the grant covered trees that, although they had attained the age and growth prescribed, the petitioner was not obliged to cut down and convert into timber at once. The Court noted that these trees could not be described as timber merely standing, because timber in the legal sense does not draw nourishment from the soil. Because the trees could be left in the ground for a considerable period, the Court held that they must be regarded as trees and not as timber. This distinction, the Court said, leads to different consequences under the law. Trees that could be regarded as standing timber at the date of the deed, on account of their size, girth and the intention to fell them early, would constitute movable property for the purposes of the Transfer of Property Act and the Registration Act. Conversely, the remaining trees that were also included in the grant would be immovable property. Since the total value of the property was Rs. 26,000, the deed was required to be registered. Because the deed had not been registered, it could not convey any title or interest. Accordingly, relying on the decision in Ananda Behera’s case, the Court concluded that the petitioner possessed no fundamental right that could be enforced. My lord the Chief Justice and my learned brothers preferred to leave the question whether the deed here is a lease or a licence coupled with a grant open, because on either view the petitioner must fail. All the judges agreed, however, that the petition should be dismissed with costs. The petition was therefore dismissed.