Shantabai v State of Bombay (1958)

This is the case the Act's most awkward definition is taught from. Section 3 of the Transfer of Property Act does not say what immoveable property is. It says only what it is not — standing timber, growing crops and grass. Shantabai supplies the machinery that makes that negative definition workable: you read the General Clauses Act definition into the gap, and you then have to draw a line between a tree (immoveable) and standing timber (moveable).

It matters for a second reason. The line Bose J draws is not botanical. It is a line about nourishment from the soil, and therefore about time. That is what makes the case examinable: the same teak tree can be moveable property under one deed and immoveable property under another, depending on how long the grantee may leave it standing.

Balirambhau Doye, the Zamindar of Pandharpur, executed on 26 April 1948 an unregistered document, calling itself a lease, in favour of his wife Shantabai. It gave her the right to enter defined areas of the zamindari and cut and take out bamboos, fuel wood and teak. The term ran from 26 April 1948 to 26 December 1960 — twelve years — and the consideration was Rs 26,000. Certain cutting was restricted, and the felling of certain trees prohibited.

She worked the forests until 1950. The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, and Alienated Lands) Act, 1950 came into force on 26 January 1951, and under its s. 3 all proprietary rights vested in the State; the vesting date for this area was 31 March 1951. She was stopped from cutting. A Deputy Commissioner's order of 16 August 1955 in her favour was not acted on by the Divisional Forest Officer; she entered the forest and cut, and on 19 March 1956 the Forest Officer cancelled her name and forfeited the cut material. On 26 August 1957 she petitioned the Supreme Court under Art. 32.

1. What, in truth, was the deed of 26 April 1948 — a lease, a contract, or a licence coupled with a grant? 2. Was what it granted moveable or immoveable property? 3. If immoveable, did the want of registration destroy the right, so that no fundamental right remained to be enforced under Art. 32?

The petition was dismissed with costs.

Bose J held that the deed was not a lease but a licence coupled with a grant — a profit a prendre; that the grant covered trees as well as standing timber, and so was a grant of immoveable property; that being of the value of Rs 26,000 it required registration; and that, unregistered, it conveyed nothing, leaving the petitioner with no property right to protect under Art. 32.

1. The label does not govern. The document repeatedly calls itself a lease deed, but "the true nature of a document cannot be disguised by labelling it something else". Clause (7), which speaks of her conducting herself as a lease holder, was read as a recital of her existing position as the proprietor's wife who managed in his absence; it contained no words of transfer.

2. It is not a lease, because a lease gives enjoyment of the land. Clause (5) said "Only the lease of the forest woods is given to you." A lease under s. 105 is a transfer of a right to enjoy immoveable property. This deed gave a right to enter and take away part of the produce of the soil. Bose J states the distinction in the sentence every answer should carry: "In a lease, one enjoys the property but has no right to take it away." In a profit a prendre the entry is "not for the purpose of enjoying it, but for removing something from it". On the authority of Ananda Behera v State of Orissa the transaction "amounts to a licence to enter on the land coupled with a grant to cut certain trees on it and carry away the wood".

3. The definitional gap and how it is filled. The Transfer of Property Act does not define immoveable property affirmatively; it excludes standing timber, growing crops and grass. The General Clauses Act, s. 3(26), includes benefits arising out of land and things attached to the earth. Bose J resolves the clash with a rule of construction worth memorising: "In the absence of a special definition, the general definition must prevail." Trees, other than standing timber, are therefore immoveable property even for the purposes of this Act.

4. Tree against standing timber — the nourishment test. The exclusion in s. 3 is of standing timber and not of timber trees, and the difference must therefore mean something. Timber is "wood suitable for building houses, bridges, ships etc., whether on the tree or cut and seasoned." So a standing timber tree "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 legal basis is that trees left standing continue to draw nourishment from the soil, "and that the benefit of this goes to the grantee". Where the grantee takes that benefit, he takes a benefit arising out of land, and the subject-matter is immoveable.

5. Applied to this deed. The term was twelve years; teak under one and a half feet in girth could not be cut, but could be felled as soon as it reached that girth; clause (4) contemplated a first, second and third cutting; and there was no obligation to fell at once even trees already fit. The grantee therefore took the growth. The grant was of trees, not merely of timber.

6. Consequence. Trees that were standing timber at the date of the deed, by size and by an intention to fell early, were moveable; the rest were immoveable. The deed as a whole therefore needed registration, and "Being unregistered, it passes no title or interest". A claim resting on contract alone could not found an Art. 32 petition either, because a breach of contract is not a breach of a fundamental right.

1. The nomenclature of a deed does not determine its nature; the court construes the substance. 2. A grant of a right to enter land and remove part of the produce of the soil is a profit a prendre, that is, a licence coupled with a grant, and not a lease, because a lessee enjoys the land and may not carry it away. 3. Where the Transfer of Property Act supplies no affirmative definition, the General Clauses Act s. 3(26) definition applies; trees are immoveable property, standing timber is not. 4. Standing timber means a tree fit to be used as timber and intended to be cut reasonably early. If the grantee may leave it standing so that it goes on drawing nourishment, the grant is of immoveable property.

It is not authority that every forest grant is immoveable property: a sale of trees to be cut and removed at once is a sale of moveables. It is not a decision on the Madhya Pradesh abolition legislation — Bose J expressly declined to go into it. And the lease-or-licence characterisation is his alone; the majority left it open, which is why careful writers cite Shantabai for the tree-and-timber test and Ananda Behera for the profit a prendre point.

State of Orissa v Titaghur Paper Mills (case 02) applies the same reasoning to bamboo and to the meaning of a benefit arising out of land; Ananda Behera v State of Orissa, relied on here, held that a right to catch and carry away fish from lakes is a profit a prendre and so immoveable property. Both are cited in chapter 01 of the notes.