Legal project

https://www.lawctopus.com/academike/understanding-term-benefits-arise-land/
https://indiankanoon.org/doc/963790/
https://www.lawyerssafari.com/blog/tag/smt-shantabai-vs-state-of-bombay/
https://www.slideshare.net/mdharoonrasheed/property-law-case-difference-between-tree-
standing-timber

http://www.aapkaconsultant.com/blog/timber-trees-are-immovable-property-unlike-standing-
timber-because-they-continue-to-draw-sustenance-from-soil/

http://law.du.ac.in/uploads/1/4/2/0/14207972/2term_17113_property_law_2013.pdf

INTRODUCTION

Section 2(6) of Registration Act says that: “immovable property includes

land, buildings, hereditary allowances, rights to ways, lights, ferries,
fisheries or any other benefit to arise out of land, and things attached to the
earth or permanently fastened to anything which is attached to the earth,
but not standing timber, growing crops nor grass.”
Section 3(26) of General Clauses Act says that: “Immovable property shall
include land, benefits to arise out of land, and things attached to the earth,
or permanently fastened to anything attached to the earth.”

Section 6 of TPA says that property of any kind may be transferred, but it
neither talks about all types of property nor it is feasible to include all type of
property.

Property

For Indian legislation, it is necessary to determine which property is movable

and which is immovable. It is important because both of these properties are
guided by different laws such as limitation period, registration, transfer of
property.

Much other legislation also uses the word “property”, but they haven’t given
any comprehensive definition to it. It is neither feasible nor possible of doing
so because every kind of interest or right which has an economic content is
included under the terms “property”.
Property includes everything which may be owned and have a value. It
denotes:

1. Right in nature of the property

2. The right of exclusive possession and enjoyment, short of ownership
3. Merely rights, which do not involve possession, though they may include
a use

According to TPA, the word ‘property’ includes not only the corpus or the
physical thing but also all the rights which are attached to it.

Interest in property/real right

There are many rights in a property such as the right of possession, the right of
enjoying the usufruct. These all are subject rights, and the absolute right is of
ownership. It is also known as interest in property according to TPA and real
right in English law thus these rights can vest in a different person. For
example, the right of ownership may be in person X but he has given the
property on lease and thus right of possession is in the hand of Y.

According to TPA, a property may be transferred by the way of

1. Sale
2. Mortgage
3. Charge
4. Lease
5. Exchange
6. Gift

According to most of the jurist, the term ‘property’ in summary forms means
“the unrestricted and exclusive right to a thing, the right to dispose of a
substance of a thing in every legal way; and to use and exclude everyone else
from interacting with it.”

Immovable property

TPA has classified property into the movable property and immovable property
unlike English law which has classified property as real and personal property.
The Privy Council observed: “The term ‘immovable property’ comprehends
undoubtedly all that would be real property according to English law and
possibly more.

Definition of immovable property in different statutes

The meaning of property is given in Transfer of property Act, general clauses

act, Indian registration act.

Under TPA

Section 3 provides “”immovable property” does not include standing timber,

growing crops or grass;” The definition is not comprehensive, and it just says
that standing timber, growing crops and grass are not immovable property.

Under Indian Registration Act

Section 2 (6) says “”immovable property” includes land, buildings, hereditary

allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise
out of land, and things attached to the earth, or permanently fastened to
anything which is attached to the earth, but not standing timber, growing
crops nor grass; thus the definition is not exhaustive, and it is somewhat
related to definition of TPA

Under General Clauses Act:

Section 3 (26) says “immovable property” shall include land, benefits to arise
out of the land, and things attached to the earth, or permanently fastened to
anything attached to the earth;” thus according to this definition immovable
property include

1. Land
2. Benefits arising out of the land
3. Things attached to the earth

Combining all the 3 acts the meaning of the immovable property include

1. Land
2. Benefits arising out of the land
3. Things attached to the earth
a) Things Embedded in earth
 b) Things attached to what is so embedded in the earth
c) Things rooted in the earth, except:-
 Standing timber,
 Growing crop
 Grass

Land
The land includes everything on the surface, below the surface and above the
surface of the land. Anything, till it is not removed from the land, will be
considered as the immovable land.

Benefits arising out of the land

Property may be classified as

1. Tangible property/ corporeal property

2. Intangible property/ incorporeal property

Tangible properties are all those properties which can be touched or which
have physical existence. Intangible property is the exact opposite, and thus
they have no physical existence and hence they cannot be touched and have
no physical existence. They are in the form of some rights or benefits which a
person gets from land. Therefore any right by which a person makes profit or
gain is known as his beneficial rights.

Thus a benefit arising out of land will also be immovable property. It is so

because it is incidental to earth and it cannot be served from it. Right to
capture fishes from the lake is an example of benefit arising out of the land.

Profit a prendre

It is the English concept which is very similar to benefits arising out of the land

Things necessary for it includes

1. The person claiming must have interest in the land

 2. It must respect of a procedure or profit of the soil.

Profit a prendre is a right to take something of another person’s land. It is right

to enter another person’s property and to make some benefit from the soil.

Things attached to Earth

Things attached to earth includes

1. Things rooted in earth

2. Things embedded in earth
3. Attached to what is so embedded for permanent beneficial enjoyment
of that to which it is attached

Things rooted in Earth

General Rule: The general rule is that all the things that are attached to the
earth are said to be attached to the earth. Thus all the plants, trees are
permanently attached to the surface and will be considered as immovable
property.

Exception: Growing crops, Grass and standing timber though rooted in the
earth are considered as movable property.

Standing Timber vs Fruit bearing trees: Timber is useful for construction of

houses, but for that, it has to be cut and served from the land and then only it
can be used, that is why it is considered as movable property

On the other hand, trees bearing fruits are useful when they are rooted in the
earth, and that is why they are regarded as immovable property.

Things embedded in the earth

Things which are fixed below the level, to which it will go by its weight are
considered as things embedded in the earth. The concept intends to include
those that are manually or mechanically put down deep in earth much beyond
what would it otherwise go by its weight.

Where the things are just placed without the intention of making them part of
the land, they are treated as movable property. The main thing that is needed
to consider whether the property is movable or immovable is the intention of
the parties.

The general rule is that what is annexed to the land becomes part of the land.
But it is nearly impossible to accurately tell the degree on annexation required
to consider it as immovable property.

Degree and mode of annexation

It is an essential factor to be considered, and it helps us to tell that if an object
is movable or immovable. If a thing cannot be removed without causing severe
damage to the land, then it is considered that the object has been embedded
in perpetuity and it has to be treated as immovable property.

Object of annexation

It is a more critical element to determine whether the purpose is to be treated

as movable property or immovable property. We have to gather the intention
of the parties to decide it. Further, what is the object for which it has been
done? If the purpose is to use it on a permanent basis, then it will be
considered as immovable property.

Things attached to what is so embedded

The test for it is

1. The thing must be attached permanently

2. Must be attached for the beneficial enjoyment of house or building or to
which it is attached

They have no separate existence of their own and form part of the house. The
word ‘permanent’ and ‘beneficial enjoyment’ must be read together. The
attachment must be permanent and for the beneficial enjoyment of the thing
to which it is attached.

Doctrine of Fixtures
Under English law, by virtue of attachment, a thing becomes a part of the land
and property of the owner of the soil. The doctrine of fixture, under English
law can be explained with help of two maxims
 1. Quic quid plantatur solo solo credit: Whatever is planted in earth
becomes part of the earth.
2. Quic quid inaedificatur solo solo credit: whatever is built into
or embedded into or attached to soil becomes part of the land.

The law of fixture does not strictly apply to India.

Movable property’
Similar to immovable property the term ‘movable’ property has also not been
clearly defined anywhere clearly.

TPA: It says that standing timer, growing crops and grass are not immovable
hence movable property

General clauses Act: It says property of every description except immovable

Sales of goods act: Section 2 (7) states “goods” means every kind of movable
property other than actionable claims and money; and includes stock and
shares, growing crops, grass, and things attached to or forming part of the land
which is agreed to be severed before sale or under the contract of sale;

Standing Timber
Trees and shrubs are generally considered as immovable property, but when it
is considered as standing timber, it becomes movable property. As explained
above trees can be classified as fruit-bearing ad trees and standing timber.

Difference between standing timber and fruit bearing trees

Standing timber Fruit bearing trees

Intended to cut and then only able Not intended to cut
to use

Doesn’t require a lot of require a lot of nourishment

nourishment

Wood is ready to be used as It hasn’t reached that date yet. Tree is still growing
timber

Movable property Immovable property

Growing Crops
It means crops are standing in the field and includes all the vegetables and
fruits. They are considered as movable property because they can only be used
once they are served from the land.

Grass
The grass is generally food for cattle, and hence it is also considered as
movable property
 Difference between movable and immovable property

Movable property Immovable property

According to sale of goods act According to section 3 of general clauses

Section 2 it includes stock and Act, it includes land, benefits arising out of
shares, growing crops, grass, and land, and things attached to earth
things attached to or forming part
of the land which is agreed to be
severed before sale or under the
contract of sale

If thing is resting within it’s own If thing is fixed on land by external force, it is
weight it is movable property considered to be immovable property

It is generally used to enjoy the It is generally used to enjoy the land

thing

No registration is required It requires registration

 Case
Supreme Court of India
Shrimati Shantabai vs State Of Bombay & Others

Equivalent citations: 1958 AIR 532, 1959 SCR 265

Hon’ble Judges/Coram: Sudhi Ranjan Das, C.J., A.K. Sarkar, S.K. Das, T.L.
Venkatarama Aiyyar and Vivian Bose, JJ.

PETITIONER: SHRIMATI SHANTABAI Vs.

RESPONDENT: STATE OF BOMBAY & OTHERS

DATE OF JUDGMENT: 24/03/1958

FACTS:
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, and
Alienated Lands) Act, 1950, which came into force on January 26, 1951, was
enacted.

Under Section 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-section (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 Section 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 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 her lease and
to the Rules framed under Section 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 Article 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 movable property and that, contra, it related to
immovable property. 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. 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 para: “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 -
“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 anybody.” The only
other clause to which reference need be made is clause (8). It runs - “You
should not be permitted to re cut 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.”

Issues:
1. Whether A right to enter on land to cut and carrying away timber
standing on it is a benefit arising out of land?
2. Whether it will be regarded as immovable property according to section
3(26) of general clauses Act?
3. What is the difference between standing timber and tree
4. Whether the document in question confers any proprietary rights or
interest on the petitioner? To answer this issue, the question which
arises is whether trees that will continue to draw sustenance from soil of
the land will be included in movable or immovable property?
RELEVANT CASES
1. Anand Behera v. State of Orissa[i]
2. Bihar Eastern Gangetic Fishermen Cooperative Society Limited v. Sipahi
Singh[iii]
3. State of Orissa v. Titagarh Paper Mills Company Limited[iv]
4. Bibi Sayeeda v. State of Bihar[v]
5. Bamdev vs Manorma AIR 1974 AP 226
6. Duncans Industries LTD vs State of UP (2000) 1 SCC 633
7. Mahadeo v. State of Bombay [AIR 1959 SC 735]
JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 104 of 1957. Petition under Article 32 of

the Constitution for the enforcement of fundamental rights.

The petitioner has come up before us on an application under Art. 32 of the

Constitution praying for setting aside the 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 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 immovable 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 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 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.

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.

LEGAL PRINCIPLE UPHELD: This case basically relates as to what constitutes

‘standing timber’. However, the SC has in its judgement also talked about the
phrase ‘benefit arising out of land’ and held that right to enter upon land and
cut trees is a benefit arising out of land. The SC has based its decision on this
point on the Anand Behera case. It is needed to be taken into consideration
that the period of grant for cutting of trees is 12 years. Hence the trees which
will be perfect for cutting after 12 years are not fit to cut right now. Thus it is
not the mere sale of trees as wood but much more than that. Therefore it
means that they are not to be converted into the timber on an early date and
the intention is that they should continue to live and derive nourishment and
benefit from the soil.
By applying the principles as laid above, 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
Immovable 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, the petitioner has no fundamental right which she
can enforce.