CASE ANALYSIS

SHANTABAI V. STATE OF BOMBAY & ORS.

Submitted By: Submitted To:

Yashasvi Sharma Dr. Ruchi Gupta

Roll No: 1120202148 Professor

Semester-V

B.B.A., LL.B. (Hons.)

 TABLE OF CONTENTS

Contents
A. Introduction ...................................................................................................................... 3
1. Significance of the Case ............................................................................................... 3
B. Parties to the Case ............................................................................................................ 3
C. Procedural Facts of the Case ............................................................................................ 3
1. History of the Case ....................................................................................................... 3
2. Appeal from Trial Court to the Appellate Court .......................................................... 5
3. “Finding of Fact” in the Lower Court .......................................................................... 5
4. Procedural Context given on the Basis of which Issues are Argued ............................ 5
D. Summary of Historical Facts ............................................................................................ 7
1. Happening between the parties that led the petitioner to file a petition ....................... 7
E. Form of Relief Sought by the Petitioner .......................................................................... 7
F. Arguments of the Parties ...................................................................................................... 7
1. Petitioner....................................................................................................................... 7
2. Respondent ................................................................................................................... 8
G. Outcome of the Case ........................................................................................................ 8
H. Reasoning of the Court ..................................................................................................... 8
1. Reasons given by the Court for denying relief ............................................................. 8
2. Basic principle summarized by the Court..................................................................... 9
I. Application ........................................................................................................................... 9
1. What is the application of the rule? .............................................................................. 9
J. My Analysis ......................................................................................................................... 9
1. Do you agree with the outcome of the case? How would you have decided the case? 9
2. Do you agree with the reasoning of the court? Can you give any other rationales for
the outcome? ........................................................................................................................... 9
3. How does this case relate to other cases and materials you have read? ..................... 10
K. Conclusion...................................................................................................................... 12

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 SHANTABAI V. STATE OF BOMBAY & ORS.1

A. Introduction

1. Significance of the Case

This paper seeks to analyze the case of Shantabai v. State of Bombay. This is one of the most
landmark judgment on Section 3 of the Transfer of Property Act, 1882 and also one of the
earliest cases discussing on that matter.

The enforcement of fundamental rights was discussed in relevance to the unregistered document
conferring the right to cut and appropriate wood from the forest land. Subsequently it was
observed that there was proprietary interest vested in the State. It was to be found whether the
claim founded on the rights accrued from the said document should be maintained. It was found
that the order in question did not infringe the fundamental rights as per Articles 19(I)(f) of the
Constitution of India and the petition must be dismissed.

B. Parties to the Case

In the present matter, petitioner is Miss Shantabai who has filed a petition in the Supreme Court
against the respondent State of Bombay demanding her right to cut trees from the forests and of
her possession on forests.

C. Procedural Facts of the Case

1. History of the Case

• The petitioner’s husband, Shri Balirambhau Doye, was a proprietor of certain forests in
eight several Tehsils. On 26th April, 1948, he executed an unregistered document that
called itself a lease in favour of his wife.
• The lease 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.

1
Shantabai v. State of Bombay & Ors., AIR 1958 SC 532.

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• Certain restrictions are put on the cutting, and the felling of certain trees is prohibited.
That is the substance of the right.
• The petitioner has paid Rs. 26,000 as consideration for the rights granted to her.
• The document has not been registered under the Indian Registration Act.
• The petitioner 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 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
transfers 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.
• 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.

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 • 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.
• As nothing tangible happened, she made a petition to the Supreme Court under
Art. 32 of the Constitution on August 26, 1957.

2. Appeal from Trial Court to the Appellate Court

In the instant case, the petitioner had directly filed petition in the Supreme Court under Article
32 of the Constitution alleging that the offending order has infringed her fundamental right under
Article 19(1)(f) and Article 19(1)(g). She claims to have derived the fundamental rights, which
are alleged to have been infringed, from the document dated April 26, 1948.

3. “Finding of Fact” in the Lower Court

As stated in the above point since the petition was directly filed in the Supreme Court, there
could be no “finding of fact” by the lower court.

4. Procedural Context given on the Basis of which Issues are Argued

The nature of the rights claimed by the petitioner has to be ascertained on a proper
interpretation of the aforesaid document. The Court did 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, whatever construction was put on this document, the petitioner could not
complain of the breach of any of her fundamental rights.

Justice Sudhi Ranjan Das made out possible construction of the ‘document’ in his judgment -

“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 Immovable 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

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State under section 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 section 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
Immovable 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 Immovable property and will not operate to
transmit to the petitioner any such profits-a-prendre which is in the nature of Immovable
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.

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 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 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

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aspect of the matter does not appear to have been brought to the notice of this Court when it
decided the case of Chhotabhai Jethabhai Patel and Co. v. The State of Madhya, and had it
been so done, we have no doubt that case would not have been decided in the way it was
done.”

D. Summary of Historical Facts

1. Happening between the parties that led the petitioner to file a petition

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(1)(f) and 19(1)(g).

E. Form of Relief Sought by the Petitioner

The petitioner has prayed for setting aside the order made by the respondent 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.

F. Arguments of the Parties

1. Petitioner

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.

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The learned counsel for the petitioner contended that his client's rights flowed out of a contract
and so, relying on Chhotabhai Jethabhai 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 but it is true that the learned Judges held that a writ petition lay.

2. Respondent

No arguments are stated on behalf of respondent counsel are mentioned in the original judgment
of the present case.

G. Outcome of the Case

The five judge bench of Supreme Court in the present matter dismissed the petition without any
costs and held that whatever rights, if any, may have accrued to the petitioner under that
document on any of the several interpretations, she cannot complain of the infringement by the
State of any fundamental right for the enforcement of which alone a petition under Art. 32 is
maintainable.

H. Reasoning of the Court

1. Reasons given by the Court for denying relief

“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.”

“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 from it, namely, a part of the produce of the soil.”

“Following the decision in Ananda Behera’s case, 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.”

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 2. Basic principle summarized by the Court

The exclusion in the Transfer of Property Act is only for ‘standing timber’ and not of ‘timber
trees’. Standing timber must be a tree that is in a state fit for use for building or industrial
purposes, and looked upon as a timber 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. But the amount of
nourishment it takes, if felled at a reasonably early date, is so negligible and to be ignored.

I. Application

1. What is the application of the rule?

This case basically relates as to what constitutes ‘standing timber’. However, the SC has in its
judgment 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.

J. My Analysis

1. Do you agree with the outcome of the case? How would you have decided the case?

I completely agree with the outcome of the case as the Supreme Court has decided the case after
taking into consideration all the relevant facts and legal principles and rules.

My decision would have been in consonance of the Supreme Court’s decision if I had decided
the case. I would rule that the lease document is not a transfer of trees as wood (movable
property) but a transfer of benefits to arise out of land (immovable property), viz. right to fell for
a term of years, so that the transferee derives a benefit from further growth of trees.

2. Do you agree with the reasoning of the court? Can you give any other rationales for

the outcome?

As stated above, I completely agree with the reasoning of the Court in the present matter.

The other important reasoning given in this case by Justice Sudhi Ranjan Das is that whatever
rights, if any, may have accrued to the petitioner under that document on any of the several

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interpretations noted above, she cannot complain of the infringement by the State of any
fundamental right for the enforcement of which alone a petition under Art. 32 is maintainable.

Also, Justice Vivian Bose held that the purpose of clause (7) of the lease deed 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. 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.

3. How does this case relate to other cases and materials you have read?

There are various cases relating to Section 3 of the Transfer of Property Act, 1882 in which court
has discussed almost similar subject matter as in the present case.

The leading judgments relating to the subject matter similar to that in the present case are
discussed below:

Ananda Behra v. State of Orissa2

The Court held in this case that what was sold to the petitioners was the right to catch and carry
away fish in specific sections of the lake for a specified future period and that this amounted to a
license to enter on the land coupled with a grant to catch and carry away the fish which right was
a profit a pendre. The court than pointed out that fish did not come under the category of
property excluded from the definition of “immovable property”.

Shantabai v. State of Bombay

A right to enter the land of another and carry a part of the produce is an instance of profits a
pendre, i.e. benefit arising out of land, and therefore a grant in immovable property.

State of Orissa v. Titaghur Paper3

The contract should be examined as a whole with reference to all its terms and all the rights
conferred by it and not with reference to only a few terms or with just one of the rights flowing
there from. The ‘bamboo contract’ (right to cut and remove bamboos with several ancillary

2
Ananda Behra v. State of Orissa, AIR 1956 SC 17.
3
State of Orissa v. Titaghur Paper , AIR 1985 SC 1291.

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rights) is related to immovable property as a benefit to arise out of land and did not relate to a
contract of immovable property.

Duncans Industries Ltd. v. State of U.P.4

The Court held that whether machinery embedded in the earth can be treated as movable or
immovable property depends upon the intention of the parties which embedded the machinery
and also the intention of the parties who intend alienating the machinery.

4
Duncans Industries Ltd. v. State of U.P., (2000) 1 SCC 633.

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Conclusion

Shantabai v. State of Bombay is one of the earliest and landmark judgments discussing the scope
of Section 3 of the Transfer of Property Act, 1882. It laid out the difference between ‘standing
timber’ and ‘timber trees’ and also talks about the instance of profits a pendre i.e. benefit arising
out of land, and therefore, a grant in immovable property. The major issue in this case was
whether right in carrying away standing timber is a transfer of movable or immovable property.
Trees are regarded as immovable property because it is a benefit arising out of the land and also
because they are attached to the earth. But standing timber is movable property.

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 List of Cases

Ananda Behra v. State of Orissa, AIR 1956 SC 17. ..................................................................... 10

Duncans Industries Ltd. v. State of U.P., (2000) 1 SCC 633........................................................ 10

Shantabai v. State of Bombay & Ors., AIR 1958 SC 532. ............................................................. 3

State of Orissa v. Titaghur Paper , AIR 1985 SC 1291. ............................................................... 10

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