PROPERTY LAW/ 14.01.

2020
[All of today’s discussion covered in Mulla: Transfer of Property - pg. 17, 18 and 19.]

SHANTABAI V. STATE OF BOMBAY, AIR 1958 SC 532: (1959) SCR 265

Facts:

Shantabai’s husband had granted her the right to take and appropriate all kinds of
wood from certain forests in his Zamindary through an unregistered document.
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 U/S 3 of this Act and the petitioner could no longer cut any wood. She
obtained an order U/S 6(2) of the Act from the Deputy Commissioner and started
cutting 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).

Agreement was not registered. If transfer of property above value Rs. 100, then that
agreement should be registered. [Law]

Wife is brining two claims:

a) Contractual right taken away, FR violated.

b) The right from the agreement to fell of trees is a movable property in nature and state
is liable to compensate her for taking away her right.

State’s Defence:

The right to fell off the tree is itself is an immovable property, therefore it had to register. As
she hadn’t register, there is no right to begin with.

Issues:

Whether the right to fell off trees is a movable or immovable property?

Whether standing timber or normal timber?

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Ratio:

The right to enter into someone’s land and take profit out of it is benefits arising out of land
[General clauses act, and is immovable property].

To decide if standing timber

Whether is continues to draw nourishment from the land?

Two criterions:

1. Whether tree is fit enough.

2. What is the intention of the parties behind the agreement? (if regular and continuous
manner or one instance)

The above Test applied by the court.

There were various provisions in the agreement:

a) The parties have to wait till the tree arrives to a particular height (1.5 ft).
b) For the trees which has reached the required height (1.5 ft), once you have cut wood
from the tree, you cannot cut it once again.

Looking at the entire nature of the agreement, the intent of the parties was never to use the
trees as standing timber. During these period of 12 years, the tress continuously took
nourishment from the land and therefore are ordinary trees and not standing timber. If you’re
allowing the trees to take nourishment naturally from the land for a long period, then the
intention was to use the land as warehouse.

Therefore, it is benefits arising out of land, thus is a immovable property and the agreement
was needed to be registered. As agreement was not registered, therefore no right or claim.

Writ petition rejected.

BENEFITS ARISING OUT OF LAND

Land = Land + Land above + Land below (Including minerals, till it is not severed off).

If there is any benefit or fruit you are getting from someone’s land, then it is benefit arising
out of land.

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While land is immovable property, any the right to benefit arising out of the land is also
immovable property.

As the benefit is arising out of the land. The benefit is because of the nourishment given by
the land to the resource.

However, once the resource or good is severed off the land, then it is no longer a immovable
property.

Example: Right to extract fish from a land is immovable property, but after the fish is caught,
itself, is a movable property. (Anand Behera v. State of Orissa, AIR 1956 SC 17)

ANAND BEHERA V. STATE OF ORISSA, AIR 1956 SC 17

Facts:

A is the proprietor and owned a part of Chilika lake.

He gave rights to many fishermen to fish in his land

An Abolition act into force (Orissa Land Abolition act) and took the ownership of the lake
was taken away.

The rights given to fishermen were not registered and were general agreements.

The right was challenged.

Issue:

Whether the right to catch fish of the fishermen was immovable property?

Ratio:

It was held Right to extract fish from a land is immovable property, but after the fish is
caught, itself, is a movable property. As the right is a right arising out of benefits arising out
of land.

Fishermen’s claim was not allowed.

DISTINCTION BETWEEN IMMOVABLE AND MOVABLE

As the procedure is different.

When there is an agreement for transfer of immovable property, law says that such agreement
must be duly registered and duly attested.

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So, in the above two cases, if the agreements were registered, then the right to fell off trees
(Shantabai) or to right to extract fish (Anand behera) will have a higher priority over the
states right on the land (after the abolition acts came into force). Thus, there right could not
have been taken away till the expiration of the agreement which was registered. This is called
encumbrance.

CONVERSION OF A MOVABLE PROPERTY TO A IMMOVABLE PROPERTY BECAUSE OF

ATTACHMENT (THIRD CRITERIA)

The ambit and extend of attachment

What do you mean by attachment?