TMI Blog1959 (3) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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. 3. 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 terms, in view of the decision of this Court in Shrimathi Shantabai v. State of Bombay [1959]1SCR265 . 4. Petitions Nos. 16, 17 and 73 of 1957 from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose 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. 7. The matter in so far as it relates to the first two groups is simple. It has already been ruled in Shantabai's case [1959]1SCR265 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. In view of the clear pronouncement of this Court, the first two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 the come into existence. 11. Reference was also made (at pp. 480, 481) to s. 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 proprietor at any time after the 16th March, 1950, shall, as from the date of vesting, be void. 12. 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [1953]4SCR476 as a precedent. 15. The argument of counsel in these cases followed the broad pattern of the decision in Chhotabhai's case [1953]4SCR476 , 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 s. 3 of the Act is not retrospective, and that the agreements are in essence and effect licences granted to the transferees to cut, 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 '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 first sub-section of s. 3 where it says : ............ all proprietary rights in an estate, mahal......... in the area specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 centers). 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 installments on or before the agreed dates; and if the agreed amount of installment is not paid to me on or before the agreed date, I shall have full right to start proper proceedings in that connecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subject-matter 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. 23. 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 petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s. 2(b) of the Act to the Central Provinces Land Revenue Act, 1917. 27. The definition in the Act is not exhaustive. It only 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 ? 28. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc., is the consequence of proprietorship, and indeed, under s. 47(3) 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). 32. The second sub-section provides : The Deputy Commissioner shall cause to be recorded, in accordance with rules made under s. 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. 33. The matter is made clear if one refers to the provisions of s. 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-ss. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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