Shrimati Shantabai v. State of Bombay & Others

,. # . ###### • _>_ _Fundamental Rights, Enforcement of-Unregistered document_ _conferring right to_ _cut and appropriate wood from forest_ _land-Pro"_ _prietary interest vested_ _in_ _State_ _by_ _subsequent enactment-Claim_ _founded_ _on_ _rights accruing from such document,_ _if maintainable-_ _Constitution of India, Arts._ _I9(I)(f),_ _I9(I)(g)-Madhya_ _Pradesh_ _Abolition of_ _Proprietary Rights (Estates, Mahals, Alienated_ _Larrds)_ _Act, r950 (No. I_ _of I95I)._ By an unregistered document the husband of the petitioner · granted her the right fo take and appropriate all kinds of wood from certain forests in his Zamindary. With the passing of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, all proprietary rights in land vested in the State under s. 3 of that Act and the petitioner could no longer cut any wood. She applied to the Deputy Commissioner and obtained from him an order under s. 6(2) of the Act permitting her to work the forest and started cutting the trees. The Divisional Forest Officer too.k action " against her and passed an order directing that her name might be cancelled and the cut materials forfeited. She .moved the State Government against this order but to no effect. Thereafter she applied to this Court under Art. 32 of the Constitution and contended that t.he order of Rorest Officer infringed her fundamental fights under Arts. 19(1)(f) and 19(1)(g) :, _Held_ (per curiam), that the order in question did not infringe the ffmdamental rights of the petitioner under Arts. 19(1)(f) and 19(1)(g) and the petition must be dismissed. n S.C.R. ~UPREME COURT REPORTS .265 the appellant to rigorous imprisonment. Be it as it may, as the High Court had no power to impose a sentence of rigorous imprisonment we change the sentence from rigorous imprisonment to simple impriso.nment for a period of one month in each case. 'Vith this modification the appeals are dismissed. _Kapur_ _Chand_ _Pokhrf!lj_ v. _The_ _Statt_ _of_ _Bombay_ _Subba Rao_ _j._ _March 24._ _Appeals dismissed ._ SHRIMATI SHANTABAI _v._ STATE OF BOMBAY & OTHERS ###### (S. R. DAS c. J., VENKATARAMA AIYAR, s. K. DAS, A. K. SARKAR and VIVIAN BosE JJ.) 266 SUPREME COURT REPORnl .[1959] _Ananda Behera_ v. _The State_ _of_ _Orissa,_ [r955] 2 S.C.R. 919, Shrimal~antabai **followed .** - v. _Chhotabai ]ethabai Patel and_ Co. v. _The Stats_ _of_ _Madhya_ _State_ _of_ _Bombay_ _Pradesh,_ [r953] S.C.R. 476, not followed. ###### • { _('>'_ _**Others**_ _Held_ (per Das C. J., Venkatarama Aiyar, S. K. Das and A. K. Sarkar, JJ.), that it was not necessary to examine the document minutely and finally determine its real character for the purpose of deciding the matter in controversy, for whatever con.struction might he put on it, the petition must fail. If the document purported to transfer any proprietary interest in land, it would he ineffective both for non-registtation un.der the Registration Act and under s. 3 of the Madhya Pradesh Abolition of Proprietary Rights Act which vested such interest in the State. If it was a profits-a-prendre that was sought to be transferred by it, then again the document would be compulsorily registrable as a profits-a-prendre was by its nature immoveable property. If it was a contract that gave rise to a purely personal right, assuming that a contract was property within the meaning of Art. 19(1)(f) and 31(1) of the Constitution, the petitioner coultl not complain as the State had not acquired or taken possession of the contract which remained her property and she was free to dispose of it in any way she liked. The State not being a party to that contract would not be bound by it, and even if for some reason or other it could be, the remedy of the petitioner lay by way of a suit for enforcement of the contract and compensation for any possible breach of it and no question of infringement of any fundamental right could arise. Per Bose J. The document conferred a right on the peti**tioner to enter on** **the lands in order to cut down** **and** **carry** **away.** not merely the standing timber, but also other trees that were not in a fit state to be felled at once. The grant was, therefore, not merely in respect of moveable property but immoveable property as well. Being valued at Rs. 26,000, the document was compulsorily registrable under the Registration Act otherwise no **title** **or** **interest could pass; and in absence of such registration** th; petitioner had no fundamental rights that could be enforced, as held by this court in _Ananda Behera's case._ Although _standing timber_ is not immoveable property under the Transfer of Property Act or the Registration Act, _trees attached_ .., _to_ _the earth_ which are immoveable property under s. 3(26) of the General Clauses !\ct, as also•· 2(6) of the Registration Act, must be so under the Transfer of Property Act as well. ORiGINAL JURISDICTION: Petition No. 104 of 1957. Petition under Article 32 of the Constitution for the enforcement of fundamental rights. ' _R._ _V._ _S. Mani,_ for the petitioner. _>_ ##### • S.C.R .. &UPREME COURT REPORTS 267 _H. N.' Sanyal, Additional Solicitor-General_ _of_ _India,_ _i95s_ _R. Ganapathy_ **l\.T** _Iy· er_ . and - _R. H._ . _Dhebar,_ for respondents - v _"'h_ _**rima**_ . 1i [. ] ...., _[''h ]_ _an_ 1 _u_ _[b ]_ a~ [. ] .PWS. 1-3. " · - - . . y . . _N._ _N._ _Keshwani,_ for _I._ _N._ _Shroff,_ for respondent _State_ _of_ _BQmbay_ 4 - · · · · - 6' _Others_ N [. ] o. . . i958. March 24. The Judginent of Das . C. J. ######, Yenkatarama Aiyar, S. K: Das and Sarkar JJ. was deliyered by Das C. J. Bose J. deUvered a separate Judgment.. - - DAS C. J.~ We ·have had the advantage of perus- _Das_ c. _J._ ing the judgment prepared by our learned Brother Bose J. which he will presently read. While we agree with him that this applicat~on must be dismissed, we would prefer to base our decision on reasons slightly different from those adopted by our learned Brother. The• relevant ·facts will be found fully set out by him in his judgment., The petitioner has come up before us on an application under Art. 32 of the Constitution praying ·for setting aside the 6rder made by the respondent No. 3 on March· 19, 1956, directing the'.petitioner to stop the cutting of forest wood and for a writ; order or direction to the respondents •not to interfere in any .manner whatever with the rights of the petitioner to enter the forests, appoint her ·agents, obtain renewal passes, manufacture charcoal and to exercise other .. rights mentioned in the petition. - Since the application is under Art. 32 of the Constitution, the petitioner must make out that there has been an infringement of some fundamental right claimed by her. ·The petitioner's grievance is that the offending order has infringed her fundamental right under , Art. 19(l)(f) and 19(1)(g). She claims to. have derived the fundamental rights, which are alleged to have been infringed, from a document dated April 26, 1948, whereby her husband Shri · Balirambhau Doye, the proprietor of certain torests in eight several Tehsils, granted to her the right to take and appropriate ;all kinc\s of wood-building wood, .fuel wood and. bam. boos, etc.-from the said forests for a: period from the ,. _L_ ' I (.'. - 268 SUPREME COURT REPORT~ [1959] _'95_ _[8 ]_ date of the document up to December 26, 1960. The _,-:--Sh_ _S_ _[.h ]_ _**rima**_ [. ] **1** _**au a**_ 1 _[b ]_ **a1** [. ][terms ] -, [of ] [the ] [document have been sufficiently ][set ][out ] v. m the Judgment to be presently delivered by Bose J. _s1ate'<Jf_ _Bombay_ and need not be set out here. The petitioner has .paid & _Others_ Rs. 26,000 as consideration for the rights granted to her. The genuineness of this document and the good _Da' c._ _J._ faith of the parties thereto have not been questioned. The document, however, has not been registered under. the Indian Registration Act. The nature of the rights claimed by the petitioner has to be ascertained on a proper interpretation of the aforesaid document. We do not consider it necessary to examine or analyse the document minutely or to finally determine what we may regard as the true meaning and effect thereof, for, as will be presently seen, whatever construction be put on this document, the petitioner cannot complain of the breach of a~ of her fundamental rights. If the document is construed as conveying to her any part or share in the proprietary right of the grantor, then, not being registered under the Indian Registra. tion Act, the document does not affect the immoveable property or give her any right to any share or interest in the immoveable property. Assuming that she had acquired a share or interest in the proprietary right in spite of the· document not having been registered, even then that right has vested in the State under s. 3 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, and she may in that case only claim compensation if any is payable to her under the Act. If the document is con.strued as purely a license granted to her to enter upon the land, then that license must be taken to have become extinguished as soon ·as the grantor's proprie. tary rights in the land vested in the State under s. 3 of the Act. If.the document is construed as a license coupled with a grant, then the right acquired by her would be either in the nature of s11me profits-a-prendre which, being an inter(;)st in land, is immoveable property or a purely personal right under a ' contract.. If the document is construed as having given her a profits-a-prendre which is an interest in la;id, then also #### .. ###### • . _i_ ' - S.C.R. ~UPREME COURT REPORTS 269 the document will not affect the immoveable property _I95_ _[8 ]_ and will not operate to transmit to the petitioner any _Shrimati Shantabai_ such profits-a-preridre. which is in the nature of v. immoveable property, as the document has not been _State_ _of_ _Bombay_ registered under the Indian Registration Act, as has & _Others_ been held in _Ananda Behera_ v. _The State of Orissa_ (1). If it is a purely personal right, then such right will _Das_ C. _]._ _Das_ C. _]._ ###### • nave no higher efficacy than a right acquired under a contract. If, therefore, the document is construed as a matter of contra~t, then assuming but without deciding that a contract is a property within Arts. 19(l)(f) or 31(1) of the Constitution, she cannot complain, for the State has not acquired or taken possession of her contract in any way. The State is not a party to the contract and claims no benefit under it. The petitioner is still the owner and is still in possession of tha11 contract, regarded as her property, and she can hold it or dispose of it as she likes and if she can find a purchaser. The petitioner. is free to sue the grantor upon that contract and recover damages by way of compensation. The State is not a party to the contract and is not bound by the contract and accordingly acknowledges no ·liability under the contract which being purely personal does not ruri with the land. .If the petitioner maintains that, by some process not quite apparent, the State is also bound by that contract, even then she, as the owner of that contract, can only seek to enforce the contract in the ordinary way and sue the State if she be so advised, as to which we say nothing, and claim whatever damages or compensation she may be entitled to for the alleged breach of it. This aspect of the matter does not appear to have been brought to the notice· of this Court when it decided the case of _Ohhotabai Jethabai Patel and_ _Co._ v. _The State of_ _Madhya Pradesh_ ( [2] ) and had it been so done, we have no doubt that case would not have beelf decided in the way it was done. For the reasons stated above, whatever rights, if any, may have accrued to the petitioner under that document on any of the several interpretations noted above, she cannot complain of the infringement by the (i) (1955] 2 S.C,,R. 919, (2) [1953] S.C.R. _476._ 270 SUPREME COURT REPORTS [1959] _zgsS_ State of any fundamental right for the enforcement of -- . which alone a petition under Art. 32 is maintainable. _Shrimati_ .~hantabai We, therefore, agree that this petition should be dis _State_ _:J"_ _Bombay_ missed with costs. & _Others_ BosE J.-This is a writ petition under Art. 32 of the Constitution in which the petitioner claims that _Bose_ _]._ her fundamental right to cut and collect timber in the forests in question has been infringed. 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. 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. 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 Com mi~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 #### .. ##,. . S.C.R. ~UPREME COURT REPORTS 271 her lease and to the rules framed under s. 218(A) of the C. P. Land Revenue Act. - _Shrimati Shantabai_ . It seems that the petitioner claimed compensation "· from Government for being ousted from the forests _Stat•_ _[0]_ _!_ _Bombay_ from 1951 to 1955 but gave up the claim on the under- & _Others_ standing that she would be allowed to work the forests _Base 1 ._ for the remaining period of the term in accord•ance with the Deputy Commissioner's order \dated August 16, 1955. 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 ap ##### • plied 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 Divi- · sional ]'orestOfficer says. 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. 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. ., .. ·" 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. - . 272 SUPREME COURT REPORTS [1959] _1958_ Clause ( 1) of the deed runs- _'h,imat;-;,,antabai_ "We executed this lease deed ... and which by this - - v. deed have been leased out to you in consideration of _State_ _of_ _Bombay_ Rs. 26,000 for taking out timber, fuel and bamboos _**b Others**_ **etc."** At the end-of clause (2), there is the following para_**Bose**_ _**J.**_ graph: "You No. 1 are the principal lessee, while Nos. !! and 3 are the sub-lessees." 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: " 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." Clause (5) runs- "Besides the above pasas the whole forest is leased out to you. _Only the lease_ _of the for est woods_ _is_ _given to_ _you."_ °Clause (7) states " 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 #### .. ##### • " 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." The only other clause to which reference need be made is cla,use (8). It runs - .. ' tion 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). S.O.R. &UPREME COURT REPORTS 273 "You should not be permitted to re cut the >vood _z958_ in the area which was once subject to the operation of ~ _b_ . . h . h d . - 5h . _rimali_ _S11awa_ _ai_ cuttmg, ot erw1se t e area concerne w1 11 . rev.ert to · v. the estate. The cutting of tl:i.e forests should be right _State_ _of_ _Bombay_ at the land surface and there should not be left any & _Others_ deep furrows or holes." I will examfoe the seventh clause first. The ques- _Bw J._ ti.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. 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 " 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_ ( [1] ), and by the later decision in _Ananda Behera_ v. _The_ , _State_ _of Orissa_ ( [2] ), where it was held that a transac (1) [1<)'53] S.C.R. 476, 483. (2) [1955] 2.S.C.R. 919, 922, 923. 35, 274 SUPREME COURT REPORTS [1959) _r958_ It is not a " transfer of a right to enjoy the immove. -. - . able property" itself (s. 105 of the Transfer of Pro Shnm~t• _Shantabai_ perty Act), but a grant of a right to enter upon the v. - land and _take away_ a part of the produce of the soil _**Slate**_ _**of**_ _**Bo1nba.y**_ &- _others_ from it. In a lease, one enjoys the property but has no right, to take it away. In a _profit a prendre·_ one _**Bost].**_ 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. 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_ ( [1] ), I would hold that she has none. This runs counter to _Chhotebhai Jethabhai Patel's_ case( [2] );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_ ( [1] ), especially as I think it lays down the law aright. 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. . ·• 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_ ( [1] ): "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) ' (1) [1955] 2 S.C.R. 919. (2) [1955] S.C.R. 476 . - _)_ S.C.R. guPREME COURT REPORTS 275 something more must be disclosed, namely, a right to _Ig58_ P [roperty ] . [of which one is ] [the ] [owner ] [or ] [in ][which one] l . h 5 _**1irnnati**_ [, . ] ~S-h _**anta**_ _b_ _**at**_ . has an mterest apart from a purely contractua rig t. v. Therefore, the claim founded in contract simpliciter _'state_ _of_ _Bombay_ disappears. But, in so far as it is founded either on & _Others_ 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_ ( [1 ] ), 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. #### • 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. 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. 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 (1)( 1955] - _2_ S.C.R. 919. 276 SUPREME COURT REPORTS [1959] _'95_ _[8 ]_ "attached to the earth"; and it seems to me that the ... ##### • ~ _"'h_ _**rima**_ . _t._ **t** _Sh_ _**an a at**_ _t b_ . distinction, must . lie in the difference between a . . tree and , v. timber. It 18 to be noted that the exclusion is only of _State_ _of_ _Bombay_ " standing _timber_ " and not of" timber _trees"._ & _Others_ Timber is well enough known to be " wood suitable for building houses, bridges, ships _Bose_ _J._ 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. 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. '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 21. At page 16, the learned author says" 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 " 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 S.C.R. · ~UPREME COURT REPORTS **277** includes theright to fell the trees for a term of years, _r95a_ so that the transferee derives a benefit from further . _Sh_ _**rima**_ . _,-:--Sh_ _**i**_ _**an a**_ 1 _[b ]_ **a1** [• ] growth, the transfer is treated as one of immoveable v. property." _State_ _of_ _Pombay_ The learned author also refers to the English law and ~ _Others_ says at page **21-** . Bo~t _J._ "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." Bo~t _J._ ' / ##### ' l. 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. - 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. 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 - 278 SUPitEME COURT REPORT~ [1959] _r95_ _[8 ]_ third cutting. As regards trees that could be cut at _S_ _**,**_ _['· ]_ _**.. nma**_ [. ] _1_ _[-:--Sh ]_ _**i**_ _**an a**_ _t b_ _**ai**_ . once, . there . is no obligation to do . . . so. They can be left - v. - standmg till such time as the :pet1t10ner chooses to fell _State_ _•!_ _Bombay_ them. That means that they/ are not to be converted <>- _Others_ into timber at a reasonably early date and that the _Bose_ _**J.**_ , 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. 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_ (1) the petitioner has no fundamental right which she can enforce. 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. _(_ ... ### • _Petition dismissed.'_ (r) [1955] 2 S.C.R. 919 . -