Case: Shantabai Vs. State of Bombay &amp; Others

difference between a tree and timber. It is to be noted that the exclusion is only of "standing timber" and not of "timber trees". 30. Timber is well enough known to be - "wood suitable for building houses, bridges, ships etc., whether on the tree or cut and seasoned". (Websters Collegiate Dictionary). Therefore, "standing timber" must be a tree that is in a state fit for these purposes and further a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes 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. 31. Now, of course, a tree will continue to draw sustenance from the soil so long as it continues to stand and live; and that physical facts of life cannot be altered by giving it another name and calling it "standing timber". But the amount of nourishment it takes, if it is felled at a reasonably early date, is to negligible that it can be ignored for all practical purposes and though, theoretically, there is no distinction between one class of tree and another, if the drawing of nourishment from the soil is the basis of the rule, as I hold it to be, the law is grounded, not so much on logical abstractions as on sound and practical commonsense. It grew empirically from instance to instance and decision to decision until a recognisable and workable pattern emerged; and here, this is the shape it has taken. 32. The distinction, set out above, has been made in a series of Indian cases that are collected in Mullas Transfer of Property Act, 4th edition, at pages 16 and 21. At page 16, the learned author says - "Standingtimberare trees fit for use for building or repairing houses. This is an exception to the general rule thatgrowing treesare immovable property." At page 21 he says - "Trees and shrubs may be sold apart from the land, to be cut and removed as wood, and in that case they are movable property. But if the transfer includes the right to fell the trees for a term of years, so that the transferee derives a benefit from further growth, the transfer is treated as one of immovable property." The learned author also refers to the English law and says at page 21 - "In English law an unconditional sale of growing trees to be cut by the purchaser, has been held to be a sale of an interest in land; but no so if it is stipulated that they are to be removed as soon as possible." 33. In my opinion, the distinction is sound. Before a tree can be regarded as "standing timber" it must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut reasonably early.The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market.But however that may be, the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the grantee. 34. Now how does the document in question regard this ? In the first place, the duration of the grant is twelve years. It is evident that trees that will be fit for cutting twelve years hence will not be fit for felling now. Therefore, it is not a mere sale of the trees as wood. It is more. It is not just a right to cut a tree but also to derive a profit from the soil itself, in the shape of the nourishment in the soil that goes into the tree and makes it grow till it is of a size and age fit for felling as timber; and, if already of that size, in order to enable it to continue to live till the petitioner chooses to fell it. 35. This aspect is emphasised in cl. (5) of the deed where the cutting of teak trees under 11/2 feet is prohibited. But, as soon as they reach that girth within the twelve years, they can be falled. And cl. (4) speaks of a first cutting and a second cutting and a third cutting. As regards trees that could be cut at once, the is not obligation to do so. They can be left standing till such time as the petitioner chooses to fell them. That means that they are not to be converted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil; in other words, they are to be regarded astreesand not astimberand is standing and is about to be cut and used of the purposes of which timber is meant. It follows that the grant is not only of standing timber but also of trees that are not in a fit state to be felled at once but which are to be felled gradually as they attain the required girth in the course of the twelve years; and further, of trees that the petitioner is not required to fell and convert into timber at once even though they are of the required age and growth. Such trees cannot be regarded as timber that happens to be standing because timber, as such, does not draw nourishment from the soil. If, therefore, they can be left for an appreciable length of time, they must be regarded as trees and not as timber. The difference lies there.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]I do not think it does. It is clumsily worded but I think that the real meaning is this. The petitioner is the proprietors wife and it seems that she was accustomed to do certain acts of management in his absence. The purpose of cl. (7) 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 and I do not think any part of the proprietary rights, or any interest in them, are conveyed by this clause. 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 away23. Although the document repeatedly calls itself a lease, it confers no rights of enjoyment in the land. Clause (5) makes that clear, because it says"Only the lease of the forest woods is given to you."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 wood24. Much of the discussion before us centred round the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act of 1950. But I need not consider that because this, being a writ petition under Art. 32, the petitioner must establish a fundamental right. For the reasons given in Ananda Beheras case (A), I would hold that she has none. This runs counter to Chhotebhai Jethabhai Patels case (B), but, as that was a decision of three Judges and the other five, I feel that we are bound to follow the later case, that is to say, Ananda Beheras case (A), especially as I think it lays down the law arightAs a matter of fact, the rights in the earlier case were held to flow from a licence and not from a contract simpliciter (see page 483 of S. C. R.) : (at p. 110 of A. I. R.), but it is true that the learned Judges held that a writ petition lay26. In so far as the petitioner rests her claim in contract simpliciter, I think she has no case because of the reasons given in Ananda Behras case (A) :"If the petitioners rights are no more than the right to obtain future goods under the State of Goods Act, then that is a purely personal right arising out of a contract is a purely personal right arising out of a contract to which the State of Orissa is not a party and in any event a refusal to perform the contract that gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right."Following the decision in Ananda Beheras case (A), I would hold that a right to enter on land for the purpose of cutting and carrying away timber standing on it is benefit that arises out of land. There is no difference there between the English and the Indian law. The English law will be found in 12 Halsburys Laws of England (Simonds Edition) pages 620 and 621In the absence of a special definition, the general definition must prevail. Therefore, trees (except standing timber) are immovable property33. In my opinion, the distinction is sound. Before a tree can be regarded as "standing timber" it must be in such a state that, if cut, it could be used as timber; and when in that state it must be cut reasonably early.The rule is probably grounded on generations of experience in forestry and commerce and this part of the law may have grown out of that. It is easy to see that the tree might otherwise deteriorate and that its continuance in a forest after it has passed its prime might hamper the growth of younger wood and spoil the forest and eventually the timber market.But however that may be, the legal basis for the rule is that trees that are not cut continue to draw nourishment from the soil and that the benefit of this goes to the granteeIn the first place, the duration of the grant is twelve years. It is evident that trees that will be fit for cutting twelve years hence will not be fit for felling now. Therefore, it is not a mere sale of the trees as wood. It is more. It is not just a right to cut a tree but also to derive a profit from the soil itself, in the shape of the nourishment in the soil that goes into the tree and makes it grow till it is of a size and age fit for felling as timber; and, if already of that size, in order to enable it to continue to live till the petitioner chooses to fell it35. This aspect is emphasised in cl. (5) of the deed where the cutting of teak trees under 11/2 feet is prohibited. But, as soon as they reach that girth within the twelve years, they can be falled. And cl. (4) speaks of a first cutting and a second cutting and a third cutting. As regards trees that could be cut at once, the is not obligation to do so. They can be left standing till such time as the petitioner chooses to fell them. That means that they are not to be converted into timber at a reasonably early date and that the intention is that they should continue to live and derive nourishment and benefit from the soil; in other words, they are to be regarded astreesand not astimberand is standing and is about to be cut and used of the purposes of which timber is meant. It follows that the grant is not only of standing timber but also of trees that are not in a fit state to be felled at once but which are to be felled gradually as they attain the required girth in the course of the twelve years; and further, of trees that the petitioner is not required to fell and convert into timber at once even though they are of the required age and growth. Such trees cannot be regarded as timber that happens to be standing because timber, as such, does not draw nourishment from the soil. If, therefore, they can be left for an appreciable length of time, they must be regarded as trees and not as timber. The difference lies there.