Case Comment on Shantabai v. State of Bombay (Timber a immovable or not issue is been discussed) Section 8 of Transfer of Property Act 1882

1. A Case-Study
By,
MOHAMMED HAROON RASHEED
B.A.LL.B (Hons.), [BSW] & [LLM]
Advocate
Email ID: adv.mdharoon@gmail.com
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(c)2011 MD HAROON RASHEED, ADVOCATE

2. The petitioner husband granted her the right to take and
appropriate all kinds of wood from certain forests in his
Zamindary (document being unregistered). 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 permitting her to work in 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(1)(f) and 19(1)(g).
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(c)2011 MD HAROON RASHEED,
ADVOCATE

3. Facts
 The petitioners husband Balirambhau
doye was a zamindar of Pandharpur .
On 26th April 1948 he executed an
unregistered document that called itself a
lease in favor of his wife .
 The deed gives the petitioner the right to
enter upon certain areas in the zamindari
in order to cut and take out the bamboos,
fuel wood and teak .
 The term of the deed is from 26th April
1948, to 26th December 1960 , and its
consideration is Rs. 26000.
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(c)2011 MD HAROON RASHEED, ADVOCATE

4. Facts (Cont’d)
 The Petitioner applied to the Deputy
Commissioner and obtained from him an
order of permitting her to work in 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.
 The Petitioner then moved the State
Government against this order but there was
no effect.
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(c)2011 MD HAROON RASHEED,
ADVOCATE

5. Issues
 Whether the petitioners fundamental
right is been infringed by the state with
respect to an un registered document
and whether the document is leased
or profit appendare?
 Questioning of the construction of the
deed under section 8 of the TP Act
1882.
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(c)2011 MD HAROON RASHEED,
ADVOCATE

6. Issues (Cont’d)
 What is the distinction between a lease
document and profit appendre?
 Is tree a immovable property and what is
the distinction between the tree and
standing timber?
6(c)2011 MD HAROON RASHEED, ADVOCATE

7. Law
Statutes:
Constitution.
 The Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals,
Alienated Lands) Act, 1950.
Cases:
Ananda Behra v. State of Orissa1955 SCR
919.
Chotabhai Jethabhai Patel and Co.V State
of Madhya Pradesh, AIR 1953 SC 108.
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8. Analysis of the Law
 Firstly, the petitioner has filed for the infringement of
her fundamental rights (Art. 19 1 (f) and (g) of the
Constitution) on the basis of a document which is titled
as “lease deed” with it’s own clauses, terms and
conditions.
 The Judges state that the document is just a license
granted to her ,thus in this case the right acquired by
her would be either in the nature of some profit or
purely personal right under a contract.{Held by justice
Das} .
 According to Justice Bose , the document was not a
lease but amounted to a license ,which stated that to
cut the certain trees and then carry away the wood ,in
other words is a profit appendre, he also says the
deed required registration under the act , and thus did
not pass any title or interest for which the petitioner
cannot enforce any fundamental right. 8
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9. Analysis of the Law (Cont’d)
 Secondly, the true nature of the document
cannot be disguised by labeling it
something else according to “the deed
construction” mention in section 8 of the
TP Act 1882 according to Justice Bose.
 Thirdly ,the difference between lease and
profit appendre as per Easements Act
1882 sec. 52 and TP Act sec. 105 is being
discussed were by in a lease a person
enjoys the property ,but in appendre a
person can also make some changes
,apart from enjoying it .
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(c)2011 MD HAROON RASHEED, ADVOCATE

10. Analysis of the Laws (Cont’d)
 Fourthly, trees are immovable property
because they are attached or rooted
to the earth, except standing timber
,crops and grass. Here as standing
timber it must be in a state such if cut
it could be used as timber ,the legal
basis of rule is that trees that are not
cut continue to draw nourishment from
soil and that benefit of this goes to the
grante.
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(c)2011 MD HAROON RASHEED,
ADVOCATE

11. Conclusion
The Judgment
The petition filled under Article 32 of the
Constitution seeking protection for the rights
infringed of the Part III (Fundamental Rights) same
constitution is being “dismissed “by the honorable
Supreme Court with costs.
Reason:
There has been no such violation of any of the
fundamental rights of the petitioner as submitted
before the honorable Supreme Court.
11(c)2011 MD HAROON RASHEED, ADVOCATE