26 and 27 of 1954 24 and 437 of 1955 256 of 1956 12 16 17 and 73 of 1957
Petition under Article 32 of the Constitution of India for the enforcement of Fundamental Rights
MS K Sastri for the petitioners in Petitions Nos 26 and 27 of 54 and 24 of 1955
VN Swami and M section K Sastri for the petitioners in Petitions Nos
437 of 55 and 256 of 56
341 LK Jha J M Thakur section N Andley and J B Dadachanji for the petitioner in Petition No 12 of 1957
NS Bindra and Harbans Singh for the petitioners in Petitions Nos 16 and 17 of 1957
NS Bindra and Govind Saran Singh for the petitioner in Petition No 73 of 1957
H N Sanyal Additional Solicitor General of India HJ Umrigar and R H Dhebar for the respondent in Petitions Nos 26 and 27 of 1954 24 and 437 of 1955 256 of 1956 and 12 of 1957
MAdhikary Advocate General for the State Of Madhya Pradesh and I N Shroff for the respondent in Petitions Nos 16 17 and 73 of 1957
March 9
The Judgment of the Court was delivered by HIDAYATULLAH J
The judgment in Petition No 12 of 1957 shall also dispose of petitions Nos 26 and 27 of 1954 24 and 437 of 1955 256 of 1956 and 16 17 and 73 of 1957
These petitions under article 32 arise out of alleged agreements by which some of the proprietors in the former State of Madhya Pradesh granted to one or other of the petitioners the right to take forest produce mainly tendu leaves from the forests included in Zamindari and Malguzari villages of the grantors
Government has disclaimed these agreements and auctioned the rights afresh
The petitioners state that this is an invasion of their fundamental rights
The dates on which these alleged agreements were entered into the terms thereof and the periods during which they were to subsist are different from case to case
It is not necessary in this judgment to recite the terms of these documents and it is sufficient to group them for purpose of decision on the bases whether the said agreements still subsist and whether they are incorporated in a registered instrument or not
Petitions Nos 437 of 1955 and 256 of 1956 are founded on unregistered documents
The answering respondent does not admit these documents and contends that they cannot be looked into to prove their 342 terms in view of the decision of this Court in Shri mathi Shantabai vs State of Bombay 1
Petitions Nos 16 17 and 73 of 1957 form another group inasmuch as the period during which the alleged agreements were to operate expired in 1955
Additionally the documents on which the claim is founded in those petitions are unregistered
In the last mentioned case it is pleaded that the answering State Government had recognised the agreements in favour of the petitioner but resiled from that position subsequently which allegation has been adequately explained by the State Government in its affidavit
The recognition was not in favour of the petitioner but in favour of one Thakur Kamta Singh who claimed under an agreement entered into by one Vishwanath Singh on a date when he had already transferred his interest in the Zamindari to his son Onkar Prasad Singh
This point was therefore not taken before us at the hearing and nothing more Deed be said about it
The main objection against these petitions is that the agreements having expired there is nothing left to enforce either in favour of the petitioners or against the State Government and the remedy if any of the petitioners is to sue the State andor the proprietors for the breach
The last group consists of Petitions Nos 26 and 27 of 1954 24 of 1955 and the present petition No 12 of 1957
In these petitions the agreements with the petitioners are made by registered documents and the terms during which they are to operate have yet to expire
These cases it is stated fall outside the rule in Shantabai s case 1 to which reference has already been made
They are stated to fall within the decision of this Court reported in Firm Chhotabhai Jethabai Patel and Co vs The State of Madhya Pradesh 2
In all these petitions counsel argue that the view expressed in the last mentioned case is correct while the view in Shantabai s case 1 needs further consider ation
The argument of the petitioners in these several cases is that Government steps into the shoes of the 1  2  343 quondam proprietors and is bound by the agreements into which the latter had entered before their proprietary rights were taken over by Government
They also raise the contention that the petitioners were not proprietors as defined in the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1950 hereinafter called the Act and thus sections 3 and 4 in terms do not apply to them
These sections it is contended do not apply to profit a prendre which the petitioners enjoy under these agreements
In support of this contention reference is made to the decision of this Court in Chhotabhai s case 1 and to the definition of  proprietor  in the Act
Reference is also made to some provisions of the C P Land Revenue Act to be mentioned hereafter to prove that the persons on whom the right to collect forest produce was conferred by the proprietors can not be regarded as proprietors even under that Act
This in main is the argument in these cases and even those petitioners whose agreements are incorporated in unregistered documents or whose agreements have since expired adopted the same line of argument denying the necessity for registration of such agreements
The matter in so far as it relates to the first two groups is simple
It has already been ruled in Shantabai s case 2 that if the right be claimed on foot of an unregistered agreement it cannot be entertained
Such documents were examined from five different angles in that case and it was held that the document if it conferred a part or share in the proprietary right or even a right to profit a prendre needed registration to convey the right
If it created a bare licence the licence came to an end with the interest of the licensors in the forests
If proprietary right was otherwise acquired it vested in the State and lastly if the agreements created a purely personal right by contract there was no deprivation of property because the contract did not run with the land
Bose J who delivered a separate judgment also held that in the absence of registration no right was created
1  2  344 In view of the clear pronouncement of this Court the first two groups of petitions must fail
Petitions Nos 16 17 and 73 of 1957 also fail for the added reason that the agreements having expired the only remedy if any is to sue for breach of contract and no writ to enforce expired agreements can issue
This brings us to the arguments advanced in the last four petitions in the third group which were also adopted by the other petitioners whose petitions we have just considered
All these petitioners strongly relied upon Chhotabhai s case 1
It is therefore necessary to examine attentively what was decided there
In that case it was held at p 483 that  The contracts and agreements appear to be in essence and effect licenses granted to the transferees to cut gather and carry away the produce in the shape of tendu leaves or lac or timber or wood Reference in this behalf was made to a decision of the Privy Council in Mohanlal Hargovind of Jubbalpore vs Commissioner of Income tax Central Provinces and Berar 2 where it was observed  The contracts grant no interest in land and no interest in the trees or plants themselves
They are simply and solely contracts giving to the grantees the right to pick and carry away leaves which of course implies the right to appropriate them as their own property
The small right of cultivation given in the first of the two contracts is merely ancillary and is of Do more significance than would be eg a right to spray a fruit tree given to the person who has bought the crop of apples
The contracts are short term contracts
The picking of the leaves under them has to start at once or practically at once and to proceed continuously
 The Bench next observed that there was nothing in the Act to affect the validity of the several contracts and agreements and that the petitioners were neither proprietors within the meaning of the Act nor persons having  any interest in the proprietary right through the proprietors 
After quoting from Baden Powell s 1  2 ILR  898 345 Land Systems of British India Vol
1p 217 as to what was meant by  proprietorship  in the Land Revenue Systems in India it was observed that the definition of  proprietor  in the Act conveyed the same sense
Finally repelling the argument that the agreements concerned  future goods  it was held on the basis of a passage in Benjamin on Sale 8th Edition page 136 that a present sale of the right to goods having a  potential existence  could be made
Since possession was taken under the agreements and consideration had also passed there could be  a sale of a present right to the goods as soon as they come into existence
 Reference was also made at pp 480 481 to section 6 of the Act which provides  1 Except as provided in sub section 2 the transfer of any right in the property which is liable to vest in the State under this Act made by the pro prietor at any time after the 16th March 1950 shall as from the date of vesting be void
 It was observed in the case as follows  The date 16th March 1950 is probably the date when legislation on these lines was actively thought of and sub section 1 hits at transfers made after this date
This means that transfers before that date are not to be regarded as void
Even in the case of transfers after the said date sub section 2 provides that the Deputy Commissioner may declare that they are not void after the date of vesting provided they were made in good faith and in the ordinary course of management
The scheme of the Act as can be gathered from the provisions referred to above makes it reasonably clear that whatever was done before 16th March 1950 by the proprietors by way of transfer of rights is not to be disturbed or affected and that what vests in the State is what the proprietors had on the vesting date
If the proprietor had any rights after the date of vesting which he could enforce against the transferee such as a lessee or a licensee those rights would no doubt vest in the State 44 346 It was accordingly held that the State Government could not interfere with such agreements but had only the right to enforce rights arising therefrom  standing in the shoes of the proprietors
 It is clear from the foregoing analysis of the decision in Chhotabhai s case 1 that on a construction of the documents there under consideration and adopting a principle enunciated by the Privy Council in Mohanlal Hargovind of Jubbalpore vs Commissioner of Incometax Central Provinces and Berar 2 and relying upon a passage each in Benjamin on Sale and the wellknown treatise of Baden Powell the Bench came to the conclusion that the documents there under consi deration did not create any interest in land and did not constitute any grant of any proprietary interest in the estate but were merely contracts or licenses given to the petitioners  to cut gather and carry away the produce in the shape of tendu leaves or lac  or timber or wood 
But then it necessarily followed that the Act did not purport to affect the petitioners  rights under the contracts or licenses
But what was the nature of those rights of the petitioners  It is plain that if they were merely contractual rights then as pointed out in the two later decisions in Ananda Behera vs The State of Orissa 3 Shantabai s case 4 the State has not acquired or taken possession of those rights but has only declined to be bound by the agreements to which they were not a party
If on the other hand the petitioners were mere licensees then also as pointed out in the second of the two cases cited the licenses came to an end on the extinction of the title of the licensors
In either case there was no question of the breach of any fundamental right of the petitioners which could support the petitions which were presented under article 32 of the Constitution
It is this aspect of the matter which was not brought to the notice of the Court and the resulting omission to advert to it has seriously impaired if not completely nullified the effect and weight of the decision in Chhotabhai s case 1 as a precedent
11953 SCR 476
31955 2 SCR 265
2 ILR  898
4  347 The argument of counsel in these cases followed the broad pattern of the decision in Chhotabhai s case 1
and we next proceed to consider it
It is contended that what vests in the State is the right which the proprietors had on the date of vesting because section 3 of the Act is not retrospective and that the agreements are  in essence and effect licenses granted to the transferees to out gather and carry away the produce in the shape of tendu leaves or lac or timber or wood 
These agreements it is submitted grant no interest in land  or I benefit to arise out of land  the object of the agreements can only be described as sale of  goods  as defined in the Indian Sale of Goods Act and the grant of such a right is not comprehended in the firstsub section of section 3 where it says     all proprietary rights in an estate mahal in the area specified in the notification vesting in a proprietor of such estate Mahal or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances 
It is finally contended that the interest of these peti tioners is not I proprietary right  at all but a right to get I goods in the shape of leaves lac etc
We have to examine these contentions critically
Before we do so it is necessary to set out in brief the terms of the agreements which have been produced in these cases
In Petition No 12 of 1957 there were two agreements Annexures A and B The first was executed in 1944 and granted the right from 1947 to 1956 the second was executed in 1946 and granted the right from 1957 to 1966
These are long term agreements and they are typical from case to case
Indeed the second agreement was made even before the first began and the total period is 20 years
In addition to the right to the leaves the documents pro vided for many other matters
It is convenient to quote only from Annexure B   Before this I had given you a similar contract selling Tendu leaves produce by contract dated 11953 S CR 476
348 7 7 1944 registered on 12 7 1944
In pursuance of that registered contract which is for five years from 1947 to 1951 and another for subsequent five years from 1952 to 1956 in all for ten years you are to remain in possession and occupation of the areas and the Tendu leaves produce till the termination of the year 1956 for which time you continue your possession and thereafter in pursuance of this contract you continue for further period of ten years your possession and occupation from 1957 to 1966 as is usual and customary pruning and coppicing Tendu leaves plants burning them and instal Fadis for collection of Tendu leaves and construct Kothas godowns for storage of the leaves at your sweet will and choice on any open plot or land within the estate with my permission and you are allowed to take free of all costs any Adjat timber bamboos etc from my forests for constructing them
I shall charge you no further consideration
In the same manner for the purpose of constructing these godowns and such thing you may according to your convenience you may manufacture bricks at any place you like in the vicinity of any rivers rivulet Nala or pond at your costs
I shall not receive from you any extra amount as rent for the use and occupation of land that will be used for construction of Kothas for manufacturing bricks and for locating Fadis Bidi leaves collection centres
All those are included in the consideration fixed for this contract
All these rights are already conferred on you in the previous contract dated 7 7 1944 and under this contract for the entire contract period
It is also open to you to collect Tendu leaves not only those growing in the summer season but also those growing in Kartik
During the term of this contract if for one reason or another it becomes necessary for you to sell the Tendu leaves produce and assign this contract to any other person you can do so
But you shall be responsible for me to give my consent after inquiring of the fitness of the intended transferee
However you shall continue to be responsible to pay to me the agreed amount of instalments on or before the agreed dates and if the agreed amount of instalment is not paid to me on or 349 before the agreed date I shall have full right to start proper proceedings in that connection 
In Petition No 26 of 1954 the period of the two agreements was from 1944 to 1963
There too the rights were similar to those in Petition No 12 of 1957 and analogous terms are to be found in Petitions Nos 27 of 1954 and 24 of 1955
The question that arises is what is the nature of this right In English law distinction was made between easements and profit a prendre and a right to take the produce of the soil was regarded as a profit a prendre
While easements were not regarded as an interest in land a right to take the produce of the soil or a portion of it was an interest in land Fitzgerald vs Fairbanks 1
Profit a prendre can be the subject of a grant
Where they take the form of a grant they are benefits arising from land
In all these cases there is not a naked right to take the leaves of Tendu trees together with a right of ingress and of regress from the land there are further benefits including the right to occupy the land to erect buildings and to take other forest produce not necessarily standing timber growing crop or grass
The right of ingress and of regress over land vesting in the State can only be exercised if the State as the owner of the land allows it and even apart from the essential nature of the transaction the State can prohibit it as the owner of the land
Whether the right to the leaves can be regarded as a right to a growing crop has however to be examined with reference to all the terms of the documents and all the rights conveyed thereunder
If the right conveyed comprises more than the leaves of the trees it may not be correct to refer to it as being in respect of growing crop  simpliciter
We are not concerned with the subtle distinctions made in English law between emblements fructus naturals and fructus industriales but we have to consider whether the transaction concerns  goods  or moveable property  or  immovable property 
The law is made difficult by the definitions which exist in the General Clauses Act the Sale of Goods Act the 11897 2 Ch
350 Transfer of Property Act and the Registration Act
These definitions must be placed alongside one another to get their ambits
If the definitions are viewed together it is plain that they do not tell us what  immovable property   is
They only tell us what is either included or not included therein
One thing is clear however that things rooted in the earth as in the case of trees and shrubs are immovable property both within the General Clauses Act and the Transfer of Property Act but in the latter  standing timber   growing crop  and  grass  though rooted in earth are not included
Of these  growing crop  and  grass form the subjectmatter of the sale of goods and standing timber  comes within the last part of the definition of  goods  in the Indian Sale of Goods Act to be subject thereto if the condition about severing mentioned in the definition of  goods  exists
It has already been pointed out that the agreements conveyed more than the tendu leaves to the petitioners
They conveyed other forest produce like timber bamboos etc the soil for making bricks the right to prune coppice and burn tendu trees and the right to build on and occupy land for the purpose of their business
These rights were spread over many years and were not so simple as buying leaves so to speak in a shop
The expression  growing crop  might appropriately comprehend tendu leaves but would not include Adjat timber  bamboos nor even tendu plants
The petitioners were not to get leaves from the extant trees but also such trees as might grow in the future
They could even burn the old trees presumably so that others might grow in their place
In these circumstances the agreements cannot be said to be contracts of sale of goods  simpliciter
It remains now to consider whether the rights enjoyed by the petitioners can be said to fall within section 31 of the Act
That section divests the proprietors of their proprietary rights as also any other person having an interest in the proprietary right through the proprietor and vests those rights in the State
That section has to be read with the section which 351 follows and which sets out the consequences of vesting of such rights in the State
The rights which vest can be stated briefly to be a all proprietary rights in the proprietor and b all proprietary rights in any person having interest in such proprietary rights through the proprietor
These rights vest in the State free of all encumbrances
Section 4 of the Act provides inter alia that after the notification has been issued then  notwithstanding anything contained in any contract grant or document or in any other law for the time being in force and save as otherwise provided in this Act  the following consequences among others shall ensue  a all rights title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including Land cultivable or barren grassland scrubjungle forest trees fisheries wells tanks ponds water channels ferries pathways village sites hats bazars and melas and in all subsoil including rights if any in mines and minerals whether being worked or not shall cease and be vested in the State for purposes of the State free of all encumbrances and the mortgage debt or charge on any proprietary right shall be a charge on the amount of compensation payable for such proprietary right to the proprietor under the provisions of this Act ball grants and confirmation of title of or to land in the property so vesting or of or to any right or privilege in respect of such property or land revenue in respect thereof shall whether liable to resumption or not determine 
If these petitioners can be said to be possessing  an interest in the proprietary right  then their rights title and interest in the land determine under the Act and vest in the State
The petitioners therefore contend that their rights under the agreements cannot be described as proprietary right  or even a share of it
They rely on the definition of proprietor  in the Act and refer under the authority of section 2b of the Act to the Central Provinces Land Revenue Act 1917
The definition in the Act is not exhaustive
It only 352 tells us who besides the proprietor is included in the term proprietor 
Further the definitions in the Act are subordinate to the requirements of the context and the subject matter of any particular enactment
From the Act we know that the proprietor s interest in forest trees shrub grass and the like passes to the State
The question thus resolves into two short ones did the former proprietors own proprietary interest in these trees and did they part with that proprietary interest and convey it to the petitioners  There is but little doubt that in so far as the Act is concerned it does contemplate cesser of all proprietary rights in land grass land scrub jungle forest and trees whether owned by the proprietor or through him by some other person
The contention of the petitioners is that by the term  proprietor  is meant what that term conveys in the Central Provinces Land Revenue Act and reference is made for this purpose to various sections therein
The term  proprietor  is defined in the Central Provinces Land Revenue Act thus   Proprietor  except in sections 68 93 and 94 includes a gaontia of a Government village in Sambalpur Territory
 This definition does not advance the matter any further
In several sections special explanations are added to define  proprietors 
In all those explanations the term is not defined but is said to include thekedars or headmen with protected status  I mortgagee with possession  I lessees holding under leases from year to year  and the like
In addition there is invariably the inclusion of I a transferee of proprietary rights in possession  which again leaves the matter at large
See sections 25 221 53 and 68
Counsel faced with this difficulty rely upon the scheme of settlement in Ch
VI of the Central Provinces Land Revenue Act  and the record of rights which consists of Khewat a statement of persons possessing proprietary rights in the mahal including inferior proprietors or lessees or mortgagees in possession specifying the nature and extent of the interest of each and Khasra or field book and Jamabandi or list of persons 353 cultivating or occupying land in the village
these documents are prepard separately
The petitioners contend that by proprietary right  is meant that right which can find a place or be entered in the Khewat and the rights enjoyed by the petitioners are not and cannot be entered in the Khewat because thay are not proprietary rights 
They also refer to the schemes of settlement under which proprietors subproprietors etc
 are determined and offered assessment
In our opinion these arguments though attractive do not represent the whole of the matter
What these documents record and what the settlement operations determine are the kinds of  proprietors  among whom the entire bundle of rights is shared
Every proprietor or sub proprietor enjoys proprietary rights over land forests etc falling within his interest
The right to forest trees etc is the consequence of proprietorship and indeed under section 473 the State Government can declare which rights and interest must be regarded as  proprietary rights 
That sub section provides  The State Government may declare the rights and interests which shall be deemed to be proprietary rights and interests within the meaning of sub section 2
 The second sub section provides  The Deputy Commissioner shall cause to be recorded in accordance with rules made under section 227 all changes that have taken place in respect of and all transactions that have affected any of the proprietary rights and interests in any land
 The matter is made clear if one refers to the provisions of section 202 of the Land Revenue Act
That section confers on Government the power to regulate the control and management of the forest growth on the lands of any estate or mahal
A reading of sub sections
4 to 8 of that section clearly shows that forests belong to the proprietors from whom under those sub sections they can be taken over for management the profits of the management less expenses being paid to the proprietors or to superior and inferior proprietors as the case may be
Sub sections 9 and 10 provide 45 354 9 No lease lien encumbrance or contract with respect to the forest land held under direct manage ment shall be binding upon the Government
10On the expiration of the period fixed for the direct management the forest land shall be restored to the proprietor thereof Even here the term  proprietor  is explained by the usual explanation showing the same category of persons as included in the section
From this it is quite clear that forests and trees belonged to the proprietors and they were items of proprietary rights
The first of the two questions posed by us therefore admits of none but an affirmative answer
If then the forest and the trees belonged to the proprietors as items in their  proprietary rights  it is quite clear that these items of proprietary rights have been transferred to the petitioners
The answer to the second question is also in the affirmative
Being a 1 proprietary right  it vests in the State under sections 3 and 4 of the Act
The decision in Chhotabhai s case 1 treated these rights as bare licenses and it was apparently given per incuriam and cannot therefore befollowed
Even assuming that the documents in question do not amount to grant of any proprietary right by the proprietors to the petitioners the latter can have only the benefit of their respective contracts or licenses
In either case the State has not by the Act acquired or taken possession of such contracts or licenses and consequently there has been no infringement of the petitioners  fundamental right which alone can support a petition under article 32 of the Constitution
The result is that these petitions fail and are dismissed but in view of the fact that they were filed because of the decision in Chhotabhai s case 1 there shall be no order about costs
Petitions dismissed


Summary:
In a case where death is due to injuries or wounds caused by a lethal weapon it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are have been caused
Where in a case of murder the prosecution case was that the accused shot the deceased with a gun but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun and the nature of the inajuries was also such that the shots must have been fired by more than one person and not by one person only and the prosection had no evidence to show that another person also shot and the High Court though realis ing that there was thus a gap in the prosecution evidence convicted the accused placing reliance on the oral evidence of 3 witnesses which was not disinterested Held that the present case fell within the rule laid down in Pritam Singh vs The State 1959 S C R 453 inas much as the appellant had been convicted notwithstanding the fact that evidence was wanting on a most material part of the prosecution case and the conviction could not therefore be upheld 822 Held also that the standard of proof which is required in regard to the plea of alibi must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard