http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: SHRIMATI SHANTABAI

       Vs.

RESPONDENT: STATE OF BOMBAY & OTHERS

DATE OF JUDGMENT: 24/03/1958

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) AIYYAR, T.L. VENKATARAMA DAS, S.K. SARKAR, A.K. BOSE, VIVIAN

CITATION:  1958 AIR  532            1959 SCR  265

ACT:        Fundamental  Rights,  Enforcement of  Unregistered  document        conferring  right  to cut and appropriate wood  from  forest        land-Proprietary  interest  vested in  State  by  subsequent        enactment-Claim   founded  on  rights  accruing  from   such        document,  if  maintainable -Constitution  of  India,  Arts.        19(1)(f),  19(1)(g)-Madhya Pradesh Abolition of  Proprietary        Rights  (Estates, Mahals, Alienated Lands) Act, 1950 (No.  1        of 1951).

HEADNOTE: By  an unregistered document the husband of  the  petitioner granted  her the right to 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 took 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 the order of Forest Officer infringed her fundamental rights under Arts. 19(i)(f) and 19(1)(g) : Held  (per  curiam),  that the order  in  question  did  not infringe  the  fundamental rights of  the  petitioner  under Arts.  19(1)(f)  and  19(i)(g)  and  the  petition  must  be dismissed. 34 266 Ananda  Behera v. The State of Orissa, [1955] 2 S.C.R.  gig, followed. Chhotabai  jethabai  Patel and Co. v. The  State  of  Madhya Pradesh, [1953] S.C.R. 476, not followed. Held (per Das C. J., Venkatarama Aiyar, S. K. Das and A.  K.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

Sarkar, jj.), that it was not necessary to examine the docu- ment  minutely and finally determine its real character  for the  purpose  of  deciding the matter  in  controversy,  for whatever construction might be put on it, the petition  must fail.  If the document purported to transfer any proprietary interest  in  land, it would be ineffective  both  for  non- registration  under 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, assum- ing that a contract was property within the meaning of  Art. 19(i)(f) and 31(1) Of the Constitution, the petitioner could 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,ooo, the document was compulsorily registrable  under the  Registration Act otherwise no title or  interest  could pass  ; and in absence of such registration  the  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 Actor the Registration Act,  trees attacked to the earth which are immoveable property under s. 3(26)  of  the General Clauses Act, as also S. 2(6)  of  the Registration Act, must be so under the Transfer of  Property Act as well.

JUDGMENT: 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. 267 H.   N.  Sanyal, Additional Solicitor-General of  India,  R. Ganapathy Iyer and R. H. Dhebar for respondents, Nos.  1-3. N.N. Keshwani, for I. N. Shroff, for respondent No.    4. 1958.   March  24.  The Judgment of Das  C.  J.  Venkatarama Aiyar,  S. K. Das and Sarkar JJ. was delivered by Das C.  J. Bose J. delivered a separate Judgment. DAS  C.  J.-  We  have had the  advantage  of  perusing  the judgment  prepared by our learned Brother Bose J.  which  he will  presently  read.  While we agree with  him  that  this application  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

order  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(1)(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 forests in eight several  Tehsils,  granted  to her the  right  to  take  and appropriate  all kinds of wood-Building wood, fuel wood  and bamboos, etc.-from the said forests for a period from the 268 date of the document up to December 26, 1960.  The  terms of the document have been sufficiently set out in the  judgment to be presently delivered by Bose J. and need not be set out here.   The petitioner has paid Rs. 26,000 as  consideration for  the  rights granted to her.  The  genuineness  of  this document and the good 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 any 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  Registration  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 construed  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 proprietary 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 some profits-a-prendre which, being an interest 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 land, then also 269 the  document  will not affect the immoveable  property  and will  not  operate to transmit to the  petitioner  any  such profits-a-prendre  which  is in the  nature  of’  immoveable property, as the document has not been registered under  the Indian  Registration Act, as has been held in Ananda  Behera v.  The  State of Orissa (1).  If it is  a  purely  personal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

right,  then such right will have no higher efficacy than  a right  acquired  under  a  contract.   If,  therefore,   the document is construed as a matter of contract, then assuming but  without deciding that a contract is a  property  within Arts. 19(1)(f) or 31(1) of the Constitution, she cannot com- plain, 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 that 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 run 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 Chhotabai 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 been  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, the cannot complain of the infringement by the (1) [1955] 2 S.C.R. 919, (2) [1953] S.C.R. 476. 270 State of any fundamental right for the enforcement of  which alone  a  petition  under  Art.  32  is  maintainable.   We, therefore, agree that this petition should be dismissed with costs. BOSE  J.-This  is  a  writ petition under  Art.  32  of  the Constitution  in  which  the  petitioner  claims  that   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.   On  April  26,  1948,  he   executed   an unregistered document, that called 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 prohibited.  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) Act, 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  Commissioner,  Bhandara, under  s.  6(2) of the Act for validating  the  lease.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

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 apply 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 conditions set out in 271 her lease and to the rules framed under s. 218(A) of the  C. P. Land Revenue Act. It  seems  that  the petitioner  claimed  compensation  from Government  for being ousted from the forests from  1951  to 1955  but  gave up the claim on the understanding  that  she would  be  allowed  to work the forests  for  the  remaining period   of   the  term  in  accordance  with   the   Deputy Commissioner’s order dated August 16, 1955. She  thereupon  went  to the Divisional  Forest  Officer  at Bhandara  and  asked for permission to work the  forests  in accordance with the above order.  She applied 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 Divisional Forest Officer says. The Divisional Forest Officer thereupon took action  against her  for  unlawful  cutting and directed that  her  name  be cancelled and that the cut 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 move  able property   and  that,  contra,  it  related  to   immoveable 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  nature  of  a document cannot be disguised by labelling it something else. 272 Clause (1) of the deed runs- "  We  executed this lease deed ... and which by  this  deed have  been leased out to you in consideration of Rs.  26,000 for taking out timber, fuel and bamboos etc." At the end of clause (2), there is the following paragraph: " You No. 1 are the principal lessee, while Nos. 2 and 3 are the sub-lessees." Clause   (3)  contains  a  reservation  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  by  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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

" Besides the above pasas- the whole forest is leased out to you.  Only the lease, of the forest 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 only to that extent you should hold charge as such and conduct yourself as such with respect’ to sub-lessees." The rest of this clause is- Without 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 clause (8).  It runs- 273 "You  should not be permitted to recut the wood in the  area which  was  once  subject  to  the  operation  of   cutting. otherwise the area concerned will revert to the estate.  The cutting  of the forests should be right at the land  surface and there should not be left any deep furrows or holes." I  will examine the seventh clause first.  The  question  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 I 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 document 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 Jethabhai Patel & 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  transaction of this kind amounts to  a  licence  to enter on the land coupled with a grant to out 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 the soil  " like grass, or turves or trees ". See 12 Halsbury’s Laws  of England (Simonds Edition) page 522, Note (m). (2)  [1953]S.C.R.476,483. (2) [1955] 2 S.C.R. 919, 922, 923. 35 274 It  is not a " transfer of a right to enjoy  the  immoveable property " itself (s. 105 of the Transfer of Property  Act), but a grant of a right to enter upon the land and take  away a part of the produce of the soil from it.  In a lease,  one enjoys the property but has no right to take it away.  In  a profit a prendre one has a licence to enter on the land, not for  the purpose of enjoying it, but for removing  something

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

from it, namely, a part of the produce of the soil. Much  of the discussion before us centred round  the  Madhya 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 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, relying  on Chhotebhai  Jethabhai Patel’s case(2), 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 simpliciter, 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(1)(f) or Art. 31(1) (1) [1955]2 S.C.R. 919. (2) [1953] S.C.R. 476. 275 something  more  must  be  disclosed,  namely,  a  right  to property  of which one is the owner or in which one  has  an interest apart from a purely contractual right.   Therefore, the claim founded in contract simpliciter disappears.   But, in so far as it is founded either on 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. Under  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  says  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 Pro party  Act does  not define immoveable property beyond saying  that  it does  not include " standing timber, growing crops or  grass ",  trees  attached to earth (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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

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 timber  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 "  attached  to the earth " ; and it seems to  me  that  the distinction  must lie in the difference between a  tree  and timber.   It  is to be noted that the exclusion is  only  of standing timber " and not of " timber trees".     Timber is well enough known to be-  "  wood suitable for building houses, bridges, ships  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.  I? 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 stand 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  purposes and though, theoretically, 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  common- sense.   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. The 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 that  growing trees are immoveable property." At page 21  he says- "Trees and shrubs may be sold apart from the land, to be cut and  removed  as wood, and in that case  they  are  moveable property.  But if the transfer 277 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." The  learned author also refers to the English law and  says at page 21- "  In English law an 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 removed as soon as possible." 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

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 eventually the timber 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 itself, in the shape of the  nourishment  in the soil that goes into the tree and maker, it grow till  it is  of  a size and age fit for felling as  timber;  and,  if already  of that size, in order to enable it to continue  to live till the petitioner chooses to fell it. This  aspect is emphasised in clause (5) of the  deed  where the  cutting  of teak trees under 1/2  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 third cutting.  As regards trees that could be cut at  once, there is no obligation to do so.  They can be left  standing till such time as the petitioner chooses to fell them.  That means  that  they are not to be converted into timber  at  a reasonably  early date and that the 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 meant.  It follows  that the grant is not only of standing  timber  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 even though they are of the required age and growth.  Such trees cannot 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 Registration  Acts, the remaining trees that are also covered by the grant  will be  immoveable  property,  and as the  total  value  is  Rs. 26,000, the deed requires registration.  Being unregistered, it passes no title or 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  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.  But we are all agreed  that  the petition be dismissed with costs.                                     Petition dismissed. (I) [1955] 2 S.C.R. 919. 279

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10